# Santosh @ Tidke v. State

- **Citation:** (2019) 3 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** Reference No. 06 of 2011
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-tidke-v-state-44795
- **Pages:** 38

## Headnote

A. Criminal Law -Indian Penal Code,1860
- Sections 376, 302 and 201 IPC - Death
Penalty
-
Court
would
consider
cumulative effect of both aggravating
and mitigating circumstances and has to
strike a balance between the two and
see
towards
which
side
the
scale/balance of justice, tilts - The true
import of proposition of law is that
awarding
of
life
imprisonment
for
offence under Section 302 IPC is the rule
and death sentence is an exception. To
award death sentence, Courts should
specify the aggravating and mitigating
circumstances of the case.

B. Criminal Law -Indian Penal Code,
1860 - Death penalty - Mitigating &
Aggravating circumstances - What are -
would depend upon the facts of each
case - Trial Court has to compare
mitigating
and
aggravating
circumstances to come to the inference
as to the punishment to be awarded.

No material has been placed by prosecution to
suggest, that accused will be a threat to
society and there is no probability of his
reformation and rehabilitation. - here is a case
where
there
are
certain
mitigating
circumstances
but
no
aggravating
circumstance - held - punishment of death for
the offence under Section 302 I.P.C. cannot
be justified - Death punishment is highly
excessive and deserves to be remitted to life
imprisonment. - Reference is hereby rejected
- Capital Cases (Appeals) are partly allowed
and judgment of Trial Court stands modified
only in respect of punishment awarded for
3 All. Santosh @ Tidke Vs. State
477
offence
under
Section
302
I.P.C.
and
substituted by life imprisonment - The
punishment imposed for the offences under
Sections 376 and 201 I.P.C. are maintained.
(Para-3, 100,115,118,120,121,131)

C.
Indian
Evidence
Act,
1860
-
Circumstantial Evidence of 'last seen' - It
is not necessary that in a criminal trial only
when an eye witness is present, conviction
can be held and not otherwise - Where
circumstantial evidence is such which
leads to the inference that it was the
accused only who committed the crime
and none else, the accused can be
convicted and sentenced appropriately -
the
circumstances
from
which
the
conclusion of guilt is to be drawn "must"
or "should be" and not merely "may be"
fully established. Chain of circumstance
must be complete leaving no doubt that it
was the appellant alone and none else
who had committed the crime for which he
has been charged.

Present case is not founded on ocular version
proving
directly
that
crime
has
been
committed by accused-appellant - It is
founded on the circumstantial evidence of last
seen as also recovery of various objects
including dead body and pathological and
Forensic Reports - (Para-73 ,74, 83)

D. Indian Evidence Act, 1860 - Sections
25 and 26, Section 27 - Section 27,
exists by way of a proviso to Sections 25
and 26. A statement made by way of
confession
in
police
custody
that
distinctly relates to the fact discovered is
admissible
in
evidence
against
the
accused. (Para - 86 ,87, 88)

Appeal partly allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,887 of 121,322. This is a partial read: ask again with offset=39887 for what follows._

476 INDIAN LAW REPORTS ALLAHABAD SERIES
will meet the ends of justice. Therefore,
the appellants no. (1) Siya Ram (2)
Data Ram (3) Ram Ratan and (4) Ram
Sewak are convicted under Section
304(II) read with section 34 of IPC and
sentenced
to
undergo
rigorous
imprisonment for 9 years and fine of
Rs. 10,000/- each and in default of
payment of fine they will further
undergo simple imprisonment for six
months.

So
far
as
conviction
and
sentence of appellants as ordered by the
trial court with regard to Sections 325 and
323 read with Section 34 IPC is
concerned we do not find any infirmity in
the same and therefore the same is
maintained. All punishment will run
concurrently and appellants will also get
the benefit of Section 428 of Crpc. The
judgment and order of the trial court is
modified accordingly.

The appellants are reported to
be on bail, their bail bonds are canceled
and they are directed to surrender before
the trial court within 20 days from today.
They shall be lodged in jail to serve out
the sentence as modified by this Court.

Copy of this judgment be
immediately sent, along with the record,
to the court below for information and
compliance.
----------
(2019)11ILR A476

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Reference No. 06 of 2011
with
Crl. Capital Appeal (Capital Cases) No. 2330 of
2011
and
Capital Cases No. 4173 of 2011

Santosh @ Tidke ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri S.P. Sharma

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

A. Criminal Law -Indian Penal Code,1860
- Sections 376, 302 and 201 IPC - Death
Penalty
-
Court
would
consider
cumulative effect of both aggravating
and mitigating circumstances and has to
strike a balance between the two and
see
towards
which
side
the
scale/balance of justice, tilts - The true
import of proposition of law is that
awarding
of
life
imprisonment
for
offence under Section 302 IPC is the rule
and death sentence is an exception. To
award death sentence, Courts should
specify the aggravating and mitigating
circumstances of the case.

B. Criminal Law -Indian Penal Code,
1860 - Death penalty - Mitigating &
Aggravating circumstances - What are -
would depend upon the facts of each
case - Trial Court has to compare
mitigating
and
aggravating
circumstances to come to the inference
as to the punishment to be awarded.

No material has been placed by prosecution to
suggest, that accused will be a threat to
society and there is no probability of his
reformation and rehabilitation. - here is a case
where
there
are
certain
mitigating
circumstances
but
no
aggravating
circumstance - held - punishment of death for
the offence under Section 302 I.P.C. cannot
be justified - Death punishment is highly
excessive and deserves to be remitted to life
imprisonment. - Reference is hereby rejected
- Capital Cases (Appeals) are partly allowed
and judgment of Trial Court stands modified
only in respect of punishment awarded for
3 All. Santosh @ Tidke Vs. State
477
offence
under
Section
302
I.P.C.
and
substituted by life imprisonment - The
punishment imposed for the offences under
Sections 376 and 201 I.P.C. are maintained.
(Para-3, 100,115,118,120,121,131)

C.
Indian
Evidence
Act,
1860
-
Circumstantial Evidence of 'last seen' - It
is not necessary that in a criminal trial only
when an eye witness is present, conviction
can be held and not otherwise - Where
circumstantial evidence is such which
leads to the inference that it was the
accused only who committed the crime
and none else, the accused can be
convicted and sentenced appropriately -
the
circumstances
from
which
the
conclusion of guilt is to be drawn "must"
or "should be" and not merely "may be"
fully established. Chain of circumstance
must be complete leaving no doubt that it
was the appellant alone and none else
who had committed the crime for which he
has been charged.

Present case is not founded on ocular version
proving
directly
that
crime
has
been
committed by accused-appellant - It is
founded on the circumstantial evidence of last
seen as also recovery of various objects
including dead body and pathological and
Forensic Reports - (Para-73 ,74, 83)

D. Indian Evidence Act, 1860 - Sections
25 and 26, Section 27 - Section 27,
exists by way of a proviso to Sections 25
and 26. A statement made by way of
confession
in
police
custody
that
distinctly relates to the fact discovered is
admissible
in
evidence
against
the
accused. (Para - 86 ,87, 88)

Appeal partly allowed (E-7)

List of Cases Cited: -

1. St. Represented by Inspector of Police Vs
Saravanan & anr. AIR (2009) SC 152

2. Arumugam Vs St. AIR (2009) SC 331

3. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334
4. Dr. Sunil Kumar Sambhudayal Gupta & ors.
Vs St. of Mah. JT 2010 (12) SC 287

5. Sampath Kumar Vs Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

6. Sachin Kumar Singhraha Vs St. of M.P. Cri.
Appeal Nos. 473-474 of 2019

7. Smt. Shamim Vs St. of (GNCT of Delhi),
(2018) 10 SCC 509

8. Hanumant Govind Nargundkar & anr. Vs St.
of M.P., AIR (1952) SC 343

9. Hukam Singh Vs St. of Raj. AIR (1977) SC
1063

10. Sharad Birdhichand Sarda Vs St. of Mah.
AIR (1984) SC 1622

11. Ashok Kumar Chatterjee Vs St. of M. P.
AIR (1989) SC 1890

12. C. Chenga Reddy & ors. Vs St. of A. P.
(1996) 10 SCC 193

13. Bodh Raj @ Bodha & ors. Vs St. of J&K.
(2002) 8 SCC 45

14. Shivu & anr. Vs R.G. High Court of Kar. &
anr. (2007) 4 SCC 713

15. Tomaso Bruno Vs St. of U.P., (2015) 7
SCC 178.

16. Delhi Administration Vs Bal Krishan & ors.
(1972) 4 SCC 659

17. Mohmed Inayatullah Vs The St. of Mah.
(1976) 1 SCC 828

18. Raju Manjhi Vs St. of Bihar AIR (2018) SC
3592

19. Ravinder Kumar & anr. Vs St. of Pun.
(2001) 7SCC 690

20. Amar Singh Vs Balwinder Singh & ors.
(2003) 2 SCC 518

21. Tara Singh Vs St. of Pun. AIR (1991) SC
63
478 INDIAN LAW REPORTS ALLAHABAD SERIES
22. Sahebrao & anr. Vs St. of Mah. (2006) 9
SCC 794

23. Palani Vs St. of T.N. Cri. Appeal No. 1100
of 2009, decided on 27.11.2018

24. Bachan Singh Vs St. of Pun. (1980) 2 SCC
684

25. Furman Vs Georgia (1972) SCC OnLine US
SC 171

26. Machhi Singh Vs St. of Pun. (1983) 3 SCC
470

27. Haresh Mohandas Rajput Vs St. of Mah.
(2011) 12 SCC 56

28. Dhananjoy Chatterjee Vs St. of W. B.
(1994) 2 SCC 220

29.
Ramnaresh
and
others
Vs
St.
of
Chhattisgarh (2012) 4 SCC 257

30. Swamy Shraddananda Vs St. of Kar.
(2008) 13 SCC 767

31. Mukesh & anr. Vs St. (NCT of Delhi) & ors.
(2017) 6 SCC 1

32. Ahmed Hussein Vali Mohammed Saiyed &
anr. Vs St. of Guj. (2009) 7 SCC 254

33. Jameel Vs St. of U.P. (2010) 12 SCC 532

34. Guru Basavaraj @ Benne Settapa Vs St. of
Kar. (2012) 8 SCC 734

35. Gopal Singh Vs St. of Uttarakhand, (2013)
3 JT 444

36. Hazara Singh Vs Raj Kumar & anr. 2013 9
SCC 516

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Present Reference under Section
366 Cr.P.C. and Capital Case under
Section 374(2) Cr.P.C. have arisen from
judgment and order dated 14.03.2011
passed by Sri Vigyan Ram Mishra,
Additional Sessions Judge, Court No. 1,
Jhansi.

2. Capital Case Appeal No.4173 of
2011 has been filed by accused-appellant
Santosh @ Tidkey through Sri S.P.
Sharma, Advocate and Capital Case
Appeal No.2330 of 2011 has been filed
by same accused-appellant through Senior
Superintendent, District Jail, Jhansi.

3. By the impugned judgment and
order,
accused-appellant
has
been
convicted in Session Trial No.144 of
2009, (Case Crime No.665 of 2009),
under Sections 376, 302 and 201 IPC,
Police Station Chirgaon, District Jhansi.
Considering the case to be rarest of rare,
he has been sentenced under Section 376
IPC for life imprisonment; under Section
302 IPC, he has been sentenced to death.
He has been directed to be hanged till he
dies. Under Section 201 IPC, he has been
sentenced
to
two
years
Rigorous
Imprisonment (hereinafter referred to
"R.I.").

4. For confirmation of death
sentence, Reference No.06 of 2011 has
been made to this Court by Trial Court
vide letter dated 14.03.2011.

5. Factual matrix of the case arising
from the written report Ex.Ka-1, as well
as evidence brought on record is as
follows:-

6. On 05.05.2009, a written report
was presented before Police Station
Chirgaon, District Jhansi by Informant,
PW-1, Mehtab Singh, alleging that on
previous evening of 04.05.2009 at about
05:00 PM, Informant's wife Usha was
present in the house and their daughter
Jyoti was playing in front of door. In the
meantime, accused-appellant Santosh @
3 All. Santosh @ Tidke Vs. State
479
Tidkey, aged about eighteen years, came
over there and told the child Jyoti to go
with him to get mehadi applied on her
hand, whereupon Jyoti went with him.
When she did not return till night,
Informant made search for her but could
not trace. Buddh Singh, son of Hemraj,
and Lakhan son of Gokal Rajpoot of the
village told that they had seen Santosh
getting Jyoti drunk water at the handpump in front of house of Amar Singh
Rajpoot. They had seen him taking away
the girl. When Informant and others made
search for Santosh @ Tidkey, he could
not be traced. Santosh is a mischievous
boy and they are sure that he has
murdered her and caused dead body of
Jyoti disappeared has absconded.

7. On the basis of written report
Ex.Ka-1,
First
Information
Report
(hereinafter referred to as "FIR") was
lodged by PW-3, Constable, Brijesh
Mohan Rawat, as Case Crime no.665 of
2009, under Sections 302 and 201 IPC on
05.05.2009 at 02:00 PM at Police Station
Chirgaon, District Jhansi. He prepared
Chick FIR Ex.Ka-6 and made relevant
corresponding entry in General Diary
(hereinafter referred to as "GD"), a copy
whereof is Ex.Ka-7 on record.

8. After registration of case,
investigation was entrusted to PW-5, Sub
Inspector (hereinafter referred to as "SI")
Sri Girwar Giri. He obtained a copy of
FIR and after recording statement of Head
Moharrier as well as Informant, PW-1,
proceeded to the place of occurrence
along with S.I. Sri Ram and other Police
personnel. He searched for accused and
recorded statement of mother of the
deceased (Jyoti). He prepared site plan
Ex.Ka-9
of
the
place
where-from
accused-appellant had taken prosecutrix /
deceased. In the meantime, on getting
information about location of accused,
Police went to Temple of Kuchwadiya
and
arrested
accused-appellant,
who
admitted that he had taken Jyoti on the
pretext of applying Mehndi and got her
drunk water and then took her to Bera,
where he inserted finger in her vagina as a
result whereof blood stained oozing; then
she cried. Accused put her frock and
suppressed her mouth and committed rape
upon her on a stone slab (Patiya).
Thereafter he covered her with the stone
slab and fled away. On the pointing of
accused-appellant, dead body of Jyoti was
recovered by Police. A recovery memo,
Paper
no.
11,
was
prepared
by
Investigating Officer (hereinafter referred
to as "IO"). He also prepared inquest
Ex.Ka-10
before
the
Panches.
He
prepared necessary documents along with
inquest, Ex.Ka-11 to 15, and thereafter
sent dead body along with Constable,
Mustaque Ahmad, and Head Constable,
Prati Pal Singh, to District Hospital for
postmortem. He took in possession simple
as well as blood stained pieces of stone
slab (patiya). IO also took in possession a
blank wrapper, a tube of mehndi cone and
necklace made of red and white beads
from the spot and prepared recovery
memo
Ex.Ka-4.
He
also
took
in
possession undergarments of deceased
which
contained
blood
stains
and
prepared recovery memo Ex.Ka-6.

9. Autopsy on the dead body of
deceased was conducted by PW-4, Dr.
A.K.
Tripathi.
According
to
him,
deceased girl was aged about 31⁄2 years.
On external examination, Doctor found
that deceased was of average body built;
rigor mortis passed off from neck and
upper extremities and present on both
lower
extremities,
no
sign
of
480 INDIAN LAW REPORTS ALLAHABAD SERIES
decomposition
was
seen;
face
was
congested; both eyes were closed; fresh
blood was coming out from both nostrils;
bleeding from vagina was present; dried
blood was present over perineal region
and both thighs; hymen was ruptured and
lacerated; bleeding from vagina was
present. He found following ante mortem
injuries:-

1. Contusion abraded 1.5cm x
1.5cm on right side of neck just behind
mastoid process.

2. Abraded contusion two in
number, one below other on left side of
neck, 1 cm below and behind left mastoid
process on side of neck, underlying tissue
and muscle of neck are contused.

10. On internal examination, Doctor
found both the pleura, larynx, trachea and
both the lungs congested; about 50 gm of
pasty semi digested food in stomach;
large intestine contained faecal matter and
gases; liver was congested; gall bladder
was half full, weighed 450 gm; spleen and
both kidneys were congested; urinary
bladder was empty and blood clots
present on the vagina. According to
doctor, duration of death was about one
day at the time of postmortem. In the
opinion of PW-4, Dr.A.K. Tripathi, girl
died due to asphyxia as a result of ante
mortem throttling.

11. Doctor prepared slides of
vaginal smear and vaginal swab and
preserved for pathological examination
which were sealed and handed over to
Constables along-with clothes of the
deceased.

12. PW-6, Dr. Mohini Saxena, the
then Senior Consultant Pathologist in
Women Hospital, Jhansi had examined
three slides of vaginal smear and swab
sent by PW-4 Dr. A.K. Tripathi. She
found
that
slides
did
not
contain
spermatozoa but RCBS was found in
them. She prepared report Ex.Ka-22.

13. On 06.05.2009. I.O. got
accused-appellant medically examined.
He sent recovered articles relating to
incident for Forensic Science Laboratory
(hereinafter referred to as "FSL"), Agra.

14.

After
conclusion
of
investigation, IO, PW-5, Girwar Giri,
submitted charge sheet Ex.Ka.-16 in
Court under Sections 376, 302 and 201
IPC against accused-appellant.

15. Cognizance of the offences was
taken
by
Chief
Judicial
Magistrate
(hereinafter referred to as "CJM"), Jhansi
on 20.05.2009. Since the case was
exclusively triable by Court of Sessions,
CJM committed the case to Sessions
Court on 09.07.2009, where it was
registered as Session Trial No.144 of
2009, under Sections 376, 302 and 201
IPC, Case Crime No.665 of 2009, Police
Station Chirgaon, District Jhansi. Learned
Sessions Judge transferred the case to the
Court of Additional Sessions Judge, Court
No.1, Jhansi who framed charges against
the accused-appellant under Sections 302,
376 and 201 IPC. The charge read as
under:-

"eSa
foKkujke
feJk]
vij
l=
U;k;k/kh'k] d{k la0&1] >kWlh vki lUrks"k mQZ
frM+ds ij fuEu fyf[kr vkjksi fojfpr djrk gwW&

izFke ;g fd fnukad 4-5-09 dks
LFkku&is'k njoktk oknh xzke cjy Fkkuk fpjxkWo
ftyk >kWlh esa vius oknh esgrkcflag dh iq=h dq0
T;ksfr vk;q lk<+s rhu o"kZ dh gR;k dj nhA bl
izdkj vkius ,slk vijk/k fd;k tks Hkk0n0la0 dh
/kkjk&302 ds vUrxZRk n.Muh; gS vkSj bl U;k;ky;
ds izlaKku esa gSA
3 All. Santosh @ Tidke Vs. State
481

f}rh; ;g fd fnukad mDr fnukad]
le; o LFkku ij vkius oknh dh iq=h dq0 T;ksfr
mez lk<+s rhu lky ds lkFk xzke cjy Fkkuk fpjxkWo
ftyk >kWlh esa fLFkr cq}flag ds edku ds [k.Mgj
esa cykRdkj fd;k vkSj bl izdkj vkius ,slk vijk/k
fd;k] tks Hkk0n0la0 dh /kkjk&376 ds vUrxZRk
n.Muh; gS vkSj bl U;k;ky; ds izlaKku esa gSA

r`rh; ;g fd fnukad 5-5-09 dks vkius
xzke&cjy ogn Fkkuk fpjxkWo ftyk >kWlh fLFkr
cq}flag ds edku [k.Mgj esa dejs ds mRRkjh if'peh
dksus ls iRFkj ds ifV;k ds uhps ls e`rdk dq0
T;ksfr dh yk'k dks cjken djk;k ftls vkius
vijk/k dh lk{; foyksiu gsrq fNik;k Fkk vkSj bl
izdkj vkius ,slk vijk/k fd;k] tks Hkk0n0la0 dh
/kkjk&201 ds vUrxZr n.Muh; gS vkSj ,slk bl
U;k;ky; ds; izlaKku esa gSA

vkSj ,rn~ }kjk funsZ'k nsrk gwW fd vkidk
ijh{k.k mijksDr /kkjkvksa ds vUrxZr bl U;k;ky;
}kjk fd;k tk;sxkA"

"I
Vigyan
Ram
Mishra,
Additional Sessions Judge, Court No.1,
Jhansi charge you Santosh @ Tidkey as
under:-

Firstly that on 04.05.2009 at
the door of informant in Village Baral,
Police Station Chirgaon, District Jhansi
you committed murder of Km. Jyoti
daughter of Mehtab Singh aged about 31⁄2
years. Thereby you have committed
offence which is punishable under Section
302 IPC and is within the cognizance of
this Court.

Secondly that on the aforesaid
date, place and time you committed rape
on Km. Jyoti aged about 31⁄2 years in the
ruins of the house of Budh Singh within
Village Baral, Police Station Chirgaon,
District Jhansi and thereby you have
committed an offence punishable under
Section 376 IPC and within cognizance of
this Court.

Thirdly that on 05.05.2009 you
got recovered the dead body of deceased
Km. Jyoti from beneath the stone slab
kept in the south west corner of the ruins
in the runes of house of Budh Singh
situated within Village Baral under
Police Station Chirgaon, District Jhansi
where you had concealed the dead body
with the intention of disappearing the
evidence and thereby you committed
offence which is punishable under Section
201 IPC and within cognizance of this
Court.

I hereby direct that you be tried
by
this
Court
for
the
aforesaid
judgement."
(English Translation by Court)

16. Accused-appellant pleaded not
guilty and asked for trial.

17. In support of its case,
prosecution
examined,
in
all,
six
witnesses, out of whom PW-1 Mehtab
Singh is father of victim (deceased Km.
Jyoti), PW-2 Budh Singh is witness who
had last seen the deceased Jyoti with
accused-appellant while he was getting
her drink water. He is also a witness of
arrest of accused-appellant as well as
recovery of blood stained under-wear of
accused-appellant.

18. PWs 1 and 2 both are witnesses
of fact and rest are formal witnesses of
Police and Health Department.

19. PW-3 Constable Moharrir Brij
Mohan Rawat had registered FIR at case
crime no.665 of 2009, under Sections 302
and 201 IPC and has proved Chick report
Ex.Ka-6 and a copy of GD Ex.Ka-7. PW4 Dr. A.K. Tripathi had conducted
autopsy on the dead body of Km. Jyoti
and has proved injury report Ex.Ka-8
referred above. PW-5 Girwar Giri is the
IO and has proved site plan Ex.Ka-9,
inquest Ex.Ka-10, documents relating to
sending of dead body of victim / deceased
to the District Hospital Ex.Ka-11 to 15,
recovery memo Ex.Ka-3 in respect of
482 INDIAN LAW REPORTS ALLAHABAD SERIES
blood stained pieces of stone slab,
recovery memo Ex.Ka-4 in respect of
Mehndi Cone and necklace of beads,
recovery memo Ex. Ka-6 pertaining to
blood stained underwear of the appellant;
charge sheet Ex.Ka-16 and site plan
Ex.Ka-17
in
respect
of
place
of
occurrence where-from dead body of
Jyoti was recovered. IO has also proved
FSL report Ex.Ka-19, 20 and 21. PW-6
Dr. Smt. Mohini Saxena has proved
pathological report, Ex.Ka-22, in respect
of examination of three slides of vaginal
smear and swab.

20. Three reports of FSL of Agra were
received; first report, dated 26.10.2009
received from Joint Director, FSL, Agra is
Ex.Ka-21, according to which spermatozoa
were found on the frock of the deceased.
However, no spermatozoa was found on
underwear of Kalawa.

21. Second report, of the Joint
Director
of
FSL,
Agra
is
dated
29.10.2009, Ex.Ka-20, and findings are as
under:-

(i) Blood stains were found on
the pieces of stones, underwear of
accused-appellant
Santosh,
frock
of
deceased and Kalawa (bracelet) in large
area.

(ii) Largest blood stains on
stone measured about 5 cm.

(iii) For examination of blood
spectrum test was applied.

(iv) On pieces of stones,
underwear of accused-appellant and
frock of Jyoti, human blood was found.

(v) On Kalawa (bracelet) blood
stains were found disintegrated, therefore,
determination could not be made. No
definite conclusion could be drawn from
the classification of blood stains on pieces
of stone and underwear of accused
Santosh.

(vi) Blood stains on the frock of
Km. Jyoti were not fit for classification.

22. Third FSL report Ex.Ka-19
dated 16.01.2010 is with respect to
sample of blood stained and simple pieces
of stones slab. On physical microscopic
inspection both the pieces of blood
stained stone and pieces of simple stone
(material EX-1) appeared to be similar in
terms of colour, nature and density.

23.

Accused-appellant
was
examined under Section 313 Cr.P.C. on
24.02.2011, he stated that prosecution
story is false; he had not taken Jyoti with
him from house of Informant; allegation
that he had made Km. Jyoti drunk water
is false and concocted; witness Budh
Singh in connivance with Lakhan Singh
had got FIR registered to implicate him
falsely; he did not commit rape or murder
and has falsely been implicated; all the
documents are false and incorrect; he
pleaded ignorance about the postmortem
on deceased; site plan had been prepared
at the instigation of Informant in order to
implicate him; police had arrested him
from the chabutra situated out side his
house; he did not make any statement to
Police and Police has recorded false
statement; he did not get any dead body
recovered; he pleaded ignorance about
blood stains on stone slab; he denied of
any underwear belong to him taken by
Police; he was not aware as to whose
underwear had been recovered; on the
instigation of Informant and witnesses, he
has been implicated under Section 376
IPC; he also pleaded ignorance about
3 All. Santosh @ Tidke Vs. State
483
sending articles to FSL for examination;
Informant and witnesses are relatives and
friends and want to usurp his property
after throwing him out of village.

24.

On
03.03.2011,
accusedappellant was again examined by Court
under Section 313 Cr.P.C. wherein he
was confronted with the reports regarding
sample of smear in three slides. He said
that the same are wrong and he has no
knowledge about those reports.

25. On appreciation of evidence
available on record and after hearing both
the parties, Trial Judge recorded capital
punishment against the accused-appellant
under Section 302 IPC; life imprisonment
under Section 376 IPC and two years' RI
under Section 201 IPC as stated above.

26. Trial Court has given verdict of
conviction, broadly, recording its finding
on the following aspects :-

(i) Dead body of victim (Km.
Jyoti) was discovered on the pointing by
accused on 05.05.2009.

(ii) Accused has taken victim
with him and Informant PW-1 was an eye
witness to this fact and also proved the
pretext on which accused allured victim
to accompany him.

(iii) PW-2 Budh Singh verified
the fact that he has seen accused along
with victim while he was helping victim
to drink water at the hand-pump in front
of the house of Bhanwar Singh.

(iv) Possibility of rape could not
be ruled out by PW-4 Dr. A.K. Tripathi
due to ruptured hymen.

(v) Cause of death of victim due
to asphyxia as a result of throttling was
proved by PW-4 who proved post mortem
report.

(vi) Blood stains were found on
the underwear of accused as per forensic
report dated 29.10.2009 (Ex.Ka-20) and
remained unexplained by accused.

(vii) There was no delay in
lodging F.I.R. inasmuch as victim had
gone with accused at around 5:00 PM in
the evening in front of PW-1 and when
she did not return up to 7:00 PM, PW-1
and other family members searched for
her. PW-2 Budh Singh during search met
Informant and told that he has seen
accused along with victim getting her to
drink water at the hand-pump in front of
the house of Bhanwar Singh and
thereafter went together and on this
information further search continued and
when none could be traced out thereafter
report was lodged at 2:00 AM in the
Police Station.

(vii) Accused was arrested at
5:00 AM on 05.05.2009 and on his
pointing out dead body of the victim was
recovered.

(viii)
Post
mortem
was
conducted on 05.05.2009 at 3:30 PM and
as per statement of PW4 death might have
been occurred about 24 hours earlier and /
or in the night of 4/5.05.2009.

(ix) Victim was last seen with
accused and thereafter her dead body was
recovered. The time lapse between the
last seen and recovery of dead body is
closer ruling out any possibility of the
victim having gone with anybody else in
the meantime.
484 INDIAN LAW REPORTS ALLAHABAD SERIES

(x) Accused pleaded enmity
with Informant stating that he wanted to
grab his property but neither any evidence
was adduced to prove this nor any such
suggestion was made to PW-1 and PW-2
in cross-examination.

(xi) Though defence was taken that
PW-1 and PW-2 are relatives but this fact
could not be proved adducing any evidence.

(xii) No evidence was brought
to show that there was previous enmity
with the witnesses of fact and more
particularly, the Informant and accused.
Accused also did not adduce any evidence
to show that he had any personal property
in the village.

(xiii) Site plan Ex.Ka-9 was
proved by I.O., PW-5, S.I. Girwar Giri,
showing that the houses of accused and
Informant i.e. father of victim are
opposite to each other.

(xiv) The place where accused
stated to have committed rape upon victim as
also the place where her dead body was
concealed were clearly mentioned in site plan
and I.O. also proved G.D. (Ex.Ka-18)
wherein the fact of taking statement of
accused explaining the manner in which he
committed crime, is mentioned.

(xv) The stone slab on which
rape was committed measured 2' 10" by 1'
8" and had blood stains in large amount.

(xvi) The stone slab, underwear
of accused and deceased frock were found
to have human blood of same nature.

(xvii) Though underwear of
accused and underwear and frock of
deceased, as per the report (Ex.Ka-2) of
PW-6, did not contain spermatozoa but as
per forensic report, spermatozoa was
found on deceased's frock.

(xviii) In the panchayatnama,
swelling in vagina was mentioned and as
per post mortem report also hymen was
found ruptured which supports that rape
was committed upon the victim.

(xix) The defence that accused
was juvenile was not found correct and as
per record, it was found that accused was
19-1/2 years at the time of incident.

27. Trial Court, therefore, found
accused guilty of committing offences
under Sections 376, 302 and 201 I.P.C.
and has convicted and sentenced him in
the manner as stated above.

28. Against conviction and sentence
Capital Case Appeal No.4173 of 2011 has
been filed by accused-appellant Santosh
@ Tidkey through Sri S.P. Sharma,
Advocate, Capital Case Appeal No.2330
of 2011 has been filed by same accusedappellant through Senior Superintendent
District Jail, Jhansi and Reference No. 06
of 2011 has been made by Trial Court for
confirmation of Capital punishment.

29. We have heard Sri S.P. Sharma,
learned Counsel for the appellant and Sri
M.C. Joshi, learned AGA for State at
length and have gone through record
carefully with the valuable assistance of
learned Counsel for parties.

30. Learned counsel for the accusedappellant contended that there is no eye
witness of the incident; there was no
motive for accused to commit the crime
for which he has been charged; chain of
3 All. Santosh @ Tidke Vs. State
485
events is not complete so as to draw a
conclusion that it is only the accused
appellant who could have committed
crime and none else; the dead body of the
victim was found by Police on its own
and accused has been implicated falsely;
as per vaginal smear test, no spermatozoa
was found and the charge of rape is not
proved; prosecution has failed to prove its
case beyond reasonable doubt; and, lastly
that
since
evidence
adduced
by
prosecution is not sufficient to point out
with due reasonableness that it is only the
appellant who has committed crime for
which he has been charge, accused is
entitled to benefit of doubt. On the
question of sentence, it is contended that
accused at the time of committing crime
was a young man of 19-1/2 years with no
criminal history and there was no
aggravating factors so as to justify death
sentence hence Court below in awarding
capital
punishment
has
committed
manifest error.

31. Per contra Sri M.C. Joshi,
learned AGA for the State contended that
admittedly, it is not a case of ocular
evidence but there are two reliable and
unimpeachable
witnesses
who
have
proved the fact that the accused had taken
the girl with him and she was last seen
with him where-after her dead body was
recovered and that too, on pointing out by
accused-appellant,
hence,
chain
of
circumstances was complete; the short
time within which incident had taken
place and other relevant factors of
presence
of
blood
stains
on
the
underwear, stone slab and frock of
deceased of same nature support the
inference that it is only the accused who
had committed crime and none else; and
accused has not offered any explanation
as to how blood stains were found on his
underwear. So far as the sentence is
concerned, it is contended that a minor
girl aged about 3 and 1/2 years has been
dishonoured and murdered in a very cruel
manner and accused-appellant, not only
committed rape and murder, but even
hide her dead body and showed no
repentance, hence, Trial Court has rightly
treated it as case of rarest of rare nature
and awarded capital punishment which
warrants no interference and Reference
made by Trial Court deserves to be
confirmed.

32. Before coming to the merits of
the matter we find it appropriate to place
on record that during pendency of
appeals, accused-appellant moved an
application under Section 7-A of Juvenile
Justice Board (Care and Protection) Act,
2000 (hereinafter referred to as the Act,
2000) with prayer that accused-appellant
be declared juvenile and the matter should
be decided in accordance with provisions
of Act, 2000. This plea was raised by
accused before Trial Court also. The
matter was examined and thereafter Trial
Court passed order dated 07.07.2010
rejecting application of accused for
declaring him juvenile offender in Trial
relating to Case Crime No. 66 of 2009
under Sections 302 and 201 I.P.C.,
P.S.Chirgaon. The matter was taken in
Criminal Revision No. 4154 of 2010 by
accused-appellant Santosh @ Tidkey
wherein order dated 07.07.2010 passed by
Additional Sessions Judge, Court No. 1,
Jhansi
was
challenged.
This
Court
confirmed findings of Trial Court after
considering material on record and
dismissed revision vide judgement dated
18.1.2017. It is not in dispute that
aforesaid judgement of Revisional Court
has attained finality therefore, counsel of
appellant did not press issue of juvenility
486 INDIAN LAW REPORTS ALLAHABAD SERIES
before this Court at the time of final
hearing of these appeals and Reference
and has addressed this Court on merits.

33. Now we proceed to consider the
merits of the matter.

34. In the light of rival submissions,
two questions have arisen requiring
adjudication by this Court :-

(i) Whether prosecution has
adduced enough evidence to prove
beyond reasonable doubt that accused
appellant has committed crime for which
he was charged.

(ii) Whether facts of this case
bring it within the parameters of 'rarest of
rare', so as to justify Capital punishment,
i.e. death sentence.

35.

Before
examining
above
questions, we find it appropriate to have
re-look of entire evidence on record
which was brought by prosecution before
Court below and thereafter we shall
proceed to examine "whether evidence is
sufficient to bring home the findings of
guilt / conviction against the accused
appellant".

36. Documentary evidence placed
by prosecution includes written report
dated 05.05.2009 (Ex.Ka-1); F.I.R. dated
05.05.2009 (Ex.Ka-6); recovery memo of
blood stained stone dated 05.05.2009
(Ex.Ka-3);
and
recovery
memo
of
wrapper Chka-Chak; and red-yellow
Mala,
dated
05.05.2009
(Ex.Ka-4);
recovery memo of dead body of Km.
Jyoti
dated
05.05.2009
(Ex.Ka-5);
recovery memo of blood stained Chaddhi
(underwear) dated 05.05.2009 (Ex.Ka-6);
vaginal semen report dated 08.05.2009
(Ex.Ka-22); post mortem report dated
05.05.2009
(Ex.Ka-8);
and
Forensic
Laboratory Reports dated 16.01.2010
(Ex.Ka-19), dated 29.10.2010 (Ex.Ka-20)
and dated 26.10.2010 (Ex.Ka-21).

37. Oral evidence examined by
prosecution comprised of six witnesses
whereof Mehtab Singh PW-1 is the
Informant and father of victim / deceased;
PW-1 and Budh Singh PW-2 are the
witnesses of fact having seen victim along
with accused-appellant in the evening of
04.05.2009;
Constable,
Brijmohan,
prepared Chick No. 77 of 2009 (Ex.Ka-6)
and G.D. No. 3 at 2:00 AM dated
05.05.2009
(Ex.Ka-7)
and
these
documents were proved by him; Doctor
A.K. Tripathi, Senior Consultant, District
Hospital, Jhansi, PW-4, had conducted
post mortem and proved post mortem
report (Ex.Ka-8); Investigating Officer,
S.I., Girwar Giri, PW-5 proved site plan
(Ex.Ka-9) and also the fact of arrest of
accused and discovery of dead body of
Km. Jyoti on the pointing out of accusedappellant; recovery memo of dead body
and Panchayatnma; collection of blood
sample of stone; recovery of underwear of
accused-appellant and forensic reports
received as (Ex.Ka-19, Ka-20 and Ka-21)
and lastly, Dr. Smt. Mohini Saxena, PW-6
who examined three slides of vaginal
smear received from Dr. A.K. Tripathi
and proved the report (Ex.Ka-22).

38. The Informant PW-1 and Budh
Singh PW-2 are witnesses of fact and rest
are formal witnesses.

39. PW-1, Mehtab Singh, father of
deceased in examination in chief stated
that he is well acquainted with accused
Santosh @ Tidkey who was residing in
front of his house; his daughter Km. Jyoti
aged about 3 and 1/2 years at around 5:00
3 All. Santosh @ Tidke Vs. State
487
PM on 05.05.2009 was playing in front of
door of the house and PW-1 and his wife
were present in the house; Accusedappellant on the pretext of getting Mehadi
applie on the hand of Km. Jyoti, took her
with him in front of Informant and his
wife and thereafter Km. Jyoti did not
return; they tried to find out but failed.
Lakhan Lal and Budh Singh, two persons
residing in the village, during search, met
Informant and told that they had seen
accused Santosh @ Tidkey in front of the
house of Bhanwar Singh where he was
getting Km. Jyoti to drink water and had
seen both of them going together; Santosh
@ Tidkey is a mischievous person which
led Informant to believe that he (accused)
had murdered Km. Jyoti and hide her
dead body somewhere; thereafter he
lodged report in Police Station i.e. Ex.Ka1. On 05.05.2009, Police arrested Santosh
@ Tidkey at the temple of Kuchbadiya
Baba where he was hiding; Santosh @
Tidkey in front of all told that he had
killed Km. Jyoti and hide her dead body
in the ruins of the house of Hemraj and
also that he can get her dead body
discovered; thereafter, he got body
discovered from the ruin of the house of
Hemraj. I.O. prepared panchayatnama of
dead body of Km. Jyoti on the spot in
front of villagers as well as Informant and
PW-2.
PW-1
Informant
and
other
villagers signed panchayatnama; at the
time of preparing panchayatnama, private
part of deceased Km. Jyoti had blood
stains
and
it
appeared
that
after
committing rape upon her she was
murdered; PW-1 proved his signature on
panchayatnama which is marked as
Ex.Ka-2. I.O. also collected stone slab
having blood stains, it was cut with an
Axe and blood stained stone piece was
taken in custody and Fard (memo) was
prepared which was also signed by
Informant and another witness Sudama
and it was marked as Ex.Ka-3; from the
spot, one Mala, a blank wrapper of 'Chka
chak' and Mehadi was recovered for
which also Fard (memo) was prepared
and signed by Informant as well as
Sudama which was marked as Ex.Ka-4.
Dead body of girl was sent for post
mortem; Four stone pieces kept in a
sealed bundle were opened in Court and
during examination in chief, Informant
saw those pieces and verified that the
same were those which were collected by
I.O. from the place where dead body was
found and where, as per information
given by accused, he committed rape and
murder of Km. Jyoti and these articles
were marked as material Exhibits-1 to 4;
out of four stone pieces, one was without
any blood stain. In cross examination
PW-1 said that they are three brothers,
Parvat Singh, Mehtab Singh and Ram
Prakash; Parvat Singh is residing outside;
Hemraj Singh belongs to his family and
in relation is grandfather (Baba) aged
about 72 to 75 years; Hemraj has three
sons, Budh Singh, Mithlesh and Bahadur
Singh; Lakhan Lal belongs to the same
caste as that of Informant and his father's
name is Gokul; House of Lakhan Lal is at
a quite distance from the house of
Informant. Lakhan Lal has two houses in
the village; one house is after about 8-9
houses from the house of Informant;
house of accused was in front of
Informant's house and in between there is
a five feet passage; there is no Chabutara
in front of house of Informant and
Informant's
house
has
four
rooms;
accused Santosh @ Tidkey are two
brothers and since childhood he has been
residing in the same house; accused is not
undergoing education and PW-1 is not
aware as upto which class accused has
studied; he is not aware as to whether
488 INDIAN LAW REPORTS ALLAHABAD SERIES
accused was facing any other criminal
case; accused is unemployed and just
wanders hither and thither; accused was
born in front of Informant and there were
some complaints of theft committed by
accused, made by villagers, but they were
all settled; he was not aware as to whose
goods were stolen by accused; Informant
had four daughters and Km. Jyoti was
playing in front of door of his house
where he was sitting, Santosh came out
from his house and in the presence of
Informant took her with him; Informant
did not raise objection when accused was
taking Km. Jyoti though he asked as to
why he was taking her, whereupon he
said that he is taking Km. Jyoti for putting
Mehadi on her hand; this happened at
around 5:00 PM; at that time other
neighbours were not present; he did not
stop Santosh @ Tidkey from taking Km.
Jyoti as he was not aware that Santosh @
Tidkey would murder her; when she did
not return up to 7:00 PM, search was
made but she could not be found and then
Informant was let to believe that Santosh
had taken her and might have murdered
her, hence he lodged F.I.R.; during search
when the girl was not found, two village
people Budh Singh and Lakhn Singh told
Informant that they had seen Km. Jyoti
accompanying Santosh @ Tidkey and she
was drinking water from the hand pump
in front of the house of Bhanwar Singh
Rajpoot and those two persons had seen
Km Jyoti going with Santosh @ Tidkey;
these persons met Informant arount 7.15
PM, where-after, search continued up to
11:30 PM and then report was lodged at
2:00 AM on 05.05.2009; first of all search
was made at the house of Santosh @
Tidkey where his mother was present but
Santosh @ Tidkey and Km. Jyoti was not
present; both were searched in the entire
area; nobody except Budh Singh and
Lakhan Singh told that Santosh and Km.
Jyoti were going together; Informant
came back to his house around 3:00 AM
after lodging report and by that time,
accused Santosh @ Tidkey could not be
found; Informant and others were sitting
in the house in the night; body of Km.
Jyoti was found in the ruins of house of
Hemraj,
who
was
not
brother
of
Informant but belongs to the family;
Informant has no relation with Hemraj
and was not aware with the name of his
father; about 15 houses away is the house
of Hemraj; dead body of Km. Jyoti was
recovered by Police; Informant had
reached the site and Hemraj had also
come; dead body was discovered in front
of Hemraj, Informant and Ram Prakash;
Hemraj and Ram Prakash did not sign
documents i.e.