# State of U.P v. Govind Pasi

- **Citation:** (2022) 10 ILRA 961
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-18
- **Case number:** Capital Case No. 1 of 2018
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-govind-pasi-47908
- **Pages:** 22

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- "Last
Seen Theory"- Prosecution proved last
seen evidence. The chain of circumstances
is also closely related and proves that the
victim was going to school and the
accused was near the field of Shri Pal and
when the deceased ''X' reached near the
field, the convicted appellant Govind Pasi
lifted her in her arms and moved towards
the filed. Thereafter, she was found dead
in the field of Shripal.

For proving the theory of last seeing the
deceased in the company as one of the relevant
links in the chain of circumstances, it has to be
proved by the prosecution that the time-gap
between the point of time when the accused
and the deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes
impossible.

Criminal Law- Indian Evidence Act, 1872-
Section 3 - It has been further emphasized
that if discrepancies in the depositions are
minor, that that witnesses contradict
themselves during their testimonies as
opposed
to
their
previous
police
statements what is important is that the
nature of contradictions.

Settled
law
that
minor
contradictions,
improvements
and
embellishments
in
the
testimony of the witnesses are to be ignored
962 INDIAN LAW REPORTS ALLAHABAD SERIES
unless the contradictions are major and go to
the root of the case of the prosecution.

Criminal Law- Indian Evidence Act, 1872-
Section 8- Insofar as the question of
motive is concerned in the case of
circumstantial evidence the prosecution
has to prove the motive behind the crime
but in cases of sexual assault motive loses
its importance to be proved. Besides, the
motive is something in the mind of
accused which is not always possible to be
proved
by
prosecution.
Apparently
accused/appellant raped the deceased
who was a ten year oLd girl to satisfy his
lust and murdered her in order to
suppress the evidence against him- In
case of circumstantial evidence motive
assumes importance and it holds one of
the link in the chain of circumstances
however failure to provide motive is not
fatal by itself.

Although motive is one of the relevant links in
a case resting upon circumstantial evidence,
but in cases involving sexual assault motive
can merely be lust and hence even if not
proved, the same would not be fatal for the
prosecution.

Indian Evidence Act, 1872, Section 3-
Section 134 - Evidence of relative witness
cannot be brushed aside only for the
reason
that
he
is
related
to
the
complainant if they inspire confidence to
the level of independent, impartial, cogent
and consistent witness.

Where the testimony of a person related to the
deceased is found to be cogent and credible
then the same is to be relied upon by the court.

Criminal Law- Indian Evidence Act, 1872-
Section 3- The prosecution established a
complete
chain
which
leads
to
the
conclusion that only conv

## Text

_Characters 0–39,939 of 74,487. This is a partial read: ask again with offset=39939 for what follows._

10 All. State of U.P. Vs. Govind Pasi
961
by learned trial court for life term is harsh
keeping in view the entirety of facts and
circumstances of the case and gravity of
offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness
should be avoided taking into account the
reformative
approach
underlying
in
criminal justice system.

32. Perusal of record goes to show
that motive is absent for causing death of
the deceased by the appellant as it is
evident from the statement of P.W.1 and
P.W.3. The allegation of demand of dowry
was also not proved by the prosecution as
P.W.2 mother of the deceased in her
statement
herself
admitted
that
the
deceased never made any complaint about
her husband or about his family members.
Therefore, only on the basis of dying
declaration, learned trial court has awarded
very harsh and severe punishment, which is
life imprisonment.

33.

Keeping
overall
facts
and
circumstances of this case, in our opinion,
ends of justice would be met if the sentence
is reduced to the period of 10 years under
Section 304 part-I of I.P.C. Fine imposed is
reduced to Rs.5,000/- and sentence in
default payment of fine is also maintained.

34. Accordingly, the appeal is partly
allowed, as modified above.

35. Record be sent to trial court
immediately.
----------
(2022) 10 ILRA 961
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.10.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.

Capital Case No. 1 of 2018
connected with
Crl. Appeal No. 1004 of 2018

State of U.P. ...Appellant
Versus
Govind Pasi ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Manish Bajpai

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence- "Last
Seen Theory"- Prosecution proved last
seen evidence. The chain of circumstances
is also closely related and proves that the
victim was going to school and the
accused was near the field of Shri Pal and
when the deceased ''X' reached near the
field, the convicted appellant Govind Pasi
lifted her in her arms and moved towards
the filed. Thereafter, she was found dead
in the field of Shripal.

For proving the theory of last seeing the
deceased in the company as one of the relevant
links in the chain of circumstances, it has to be
proved by the prosecution that the time-gap
between the point of time when the accused
and the deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes
impossible.

Criminal Law- Indian Evidence Act, 1872-
Section 3 - It has been further emphasized
that if discrepancies in the depositions are
minor, that that witnesses contradict
themselves during their testimonies as
opposed
to
their
previous
police
statements what is important is that the
nature of contradictions.

Settled
law
that
minor
contradictions,
improvements
and
embellishments
in
the
testimony of the witnesses are to be ignored
962 INDIAN LAW REPORTS ALLAHABAD SERIES
unless the contradictions are major and go to
the root of the case of the prosecution.

Criminal Law- Indian Evidence Act, 1872-
Section 8- Insofar as the question of
motive is concerned in the case of
circumstantial evidence the prosecution
has to prove the motive behind the crime
but in cases of sexual assault motive loses
its importance to be proved. Besides, the
motive is something in the mind of
accused which is not always possible to be
proved
by
prosecution.
Apparently
accused/appellant raped the deceased
who was a ten year oLd girl to satisfy his
lust and murdered her in order to
suppress the evidence against him- In
case of circumstantial evidence motive
assumes importance and it holds one of
the link in the chain of circumstances
however failure to provide motive is not
fatal by itself.

Although motive is one of the relevant links in
a case resting upon circumstantial evidence,
but in cases involving sexual assault motive
can merely be lust and hence even if not
proved, the same would not be fatal for the
prosecution.

Indian Evidence Act, 1872, Section 3-
Section 134 - Evidence of relative witness
cannot be brushed aside only for the
reason
that
he
is
related
to
the
complainant if they inspire confidence to
the level of independent, impartial, cogent
and consistent witness.

Where the testimony of a person related to the
deceased is found to be cogent and credible
then the same is to be relied upon by the court.

Criminal Law- Indian Evidence Act, 1872-
Section 3- The prosecution established a
complete
chain
which
leads
to
the
conclusion that only convicted appellant
can commit the alleged crime and none
other than the convicted appellant can be
suspected to have committed this crime
similarly
every
hypothesis
suggesting
innocence of appellant is ruled out by such
evidence and the irresistible inference
which follows is his guilt.
Settled law that in a case of circumstantial
evidence it is incumbent upon the prosecution
to connect all the links of the circumstances in
such a manner that the only inescapable
conclusion is the guilt of the accused and no
other.

Death
Sentence
-
Proportionate
Punishment- Aggravating and Mitigating
Circumstances- One indisputed statement
of law follows that is is neither possible
nor prudent to state any universal formula
which apply to all the cases of criminology
where
capital
punishment
has
been
prescribed. Thus, the Court must examine
each case on its facts, in the light of
enunciated principles and before option
for death penalty, the circumstances of
the offender are also required to be taken
into
consideration
along
with
the
circumstances of the crime for the reason
that life imprisonment is the rule and
death
sentence
is
an
exception-The
convict/ appellant committed the crime
which is abominable, vicious and ferocious
in nature and has caused scar on the
society. If crime is said to be of such a
brutal, depraved or heinous nature so as
to fall in the category of rarest of rare, he
must be adequately punished for that. But
we have to consider the circumstances of
accused also before awarding punishment.
Convict/appellant was of 20 years of age
at the time of commission of crime now he
has dependents in the form of wife and
children. There is no evidence that the
accused committed the crime with preplanning or pre-ponderance. There is no
evidence on record that there is no
possibility of improvement in the conduct
of the accused. No such evidence is
adduced in the trial court that the accused
is a hardened criminal. No criminal history
of the appellant is stated during the trialThe instant case does not fall in the
category of rarest of rare case warranting
capital punishment. Before proceeding
further, it would be pertinent to mention
that death penalty is an exception only
when
life
imprisonment
would
be
inadequate to the crime. Therefore, the
death sentence awarded to the convict
under Section 302 IPC is liable to be
10 All. State of U.P. Vs. Govind Pasi
963
commuted into life imprisonment which
will accomplish the ends of justice.

Settled law that life imprisonment is the rule
and death penalty is the exception hence, every
case has to be considered on its own facts and
circumstances for determining the quantum of
punishment and even where the offence
committed is heinous and has shocked the
collective conscience of the society but the
circumstances of the accused are also relevant
for awarding the punishment. Accordingly,
death sentence commuted to imprisonment for
life. (Para 36, 43, 44, 45, 48, 50, 56, 64, 65)

Criminal appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

1. Manoj & ors. Vs St. of M.P, 2022 LiveLaw (SC)
510

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

3. Duryodhan Rout Vs St. of Orissa 2014 (86)
ACC 574

4. Purna Chandra Kusal Vs St. of Orissa 2012
(78) ACC 957

5. St. of U.P. Vs Anil Singh (1998) supp SCC 686

6. St. of U.P. Vs Krishanpal 2008 (16) SCC 73

7. Shriaji Genu Mohite Vs St. of Maha. 1973
Supreme Court 55

8. Amitava Benerjee @ Amit @ Bappa Banerjee
Vs St. of W.B, AIR 2011 SC 2193

9. Darga Ram Vs St. of Raj. 2015 (88) ACC 634

10. Kartik Malhar Vs St. of Bih. (1996) 1 SCC
614

11. Mohd. Rojali Vs St. of Assam: (2019) 19 SCC
567

12. Bachan Singh Vs St. of Punj. AIR 1980 SC
898

13. Machhi Singh Vs St. of Punj, (1983) 3 SCC 470
14. Ramnaresh & ors.. Vs St. of Chhattis. (2012)
4 SCC 257

15. Dharam Deo Yadav Vs St. of U.P.(2014) 5
SCC 509

16. Kalu Khan Vs St. of Raj., (2015) 16 SCC 492
(Delivered by Hon'ble Renu Agarwal, J.)

1. The capital reference No. 1 of 2018
arises out of reference made by learned trial
court under Section 366 (1) of Cr.P.C, 1973
to this Court for confirmation of death
sentence awarded to appellant Govind Pasi.

2. The Criminal Appeal No. 1004 of
2018 has also been preferred by the convict
appellant Govind Pasi s/o Hari Prasad Pasi
R/o
Gram
Kumbh
Police
Station
Gyanatnagar District Faizabad against the
judgment and order dated 17. 5.2018
passed by the Additional Sessions Judge,
F.T.C.-I, Faizabad in Sessions Trial No. 122
of 2013 State Vs. Govind Pasi, arising out
of Case Crime No. 27 of 2013 Police
Station Inayat Nagar District Faizabad vide
which the accused has been convicted and
punished with imprisonment for life and
fine of Rs. 20,000/- under Section 376 IPC,
imprisonment for the period of three
months in default of payment of fine and
has been convicted and punished with
death penalty with 20,000/- fine under
Section 302 IPC.

3. The facts of the case in brief are
that:

4. An FIR was lodged by the
complainant Jamuna Prasad on 29.01.2013
that his niece aged about 10 years went to
school but did not return. On search the
dead body of deceased ''X' was found in the
field at about 7:30 p.m. Her scarf was
wrapped around her neck.
964 INDIAN LAW REPORTS ALLAHABAD SERIES

5. On the basis of written report in
Police
Station
Inayat
Nagar
District
Faizabad, a case was registered as Case
Crime No. 27 of 2013 on the same day i.e.
on 29.01.2013 at about 08:30 p.m. against
some unknown persons under Section 302
IPC and the same was entered in general
diary No. 38 at 20:30 p.m. The investigation
was entrusted upon the Station House
Officer, Ajay Prakash Mishra who recorded
the statement of witnesses under Section 161
Cr.P.C, inspected the spot and prepared the
site plan, collected plain
and blood
contained earth, prepared recovery memo
and prepared recovery memo of undergarments, leggings (Pajama), shoes and
school bag of the deceased ''X' and
conducted inquest and prepared inquest
report and all the relevant papers relating to
the postmortem of the deceased ''X'. The
postmortem of the deceased ''X' was
conducted by Dr. S.K. Tripathi.

6. The name of convicted/appellant
Govind Pasi came into light during
investigation. The arrest and recovery
memo of under-garments of accused were
also prepared. The Investigating Officer
collected evidences against the convicted/
appellant Govind Pasi and filed the
chargesheet in the Court.

7. The accused was provided copies
of the police papers in compliance of the
provisions of Section 207 Cr.P.C and the
concerned court committed the case to the
Court of Session.

8. The charges were framed against
the convicted/appellant Govind Pasi under
Section 302, 376 IPC and read over to
convicted/ appellant Govind Pasi. The
accused abjured himself from charges and
claimed to be tried.

9. The prosecution, in order to prove
its case produced 11 witnesses:

(A)
P.W.-1
Jamuna
Prasadcomplainant;

(B) P.W. -2 Ram Prakash, last seen
witness of the deceased ''X';

(C) P.W.-3-Phool Chand, who has seen
the deceased ''X' being carried by the
appellant
Govind
Pasi
towards
the
sugarcane field of Shri Pal.

(D) P.W.-4- Vinod Kumar, who is also
the witness of fact and said to have seen the
deceased ''X' when she was running
towards her school to the north west near
the grove.

(E) P.W.-5 Dr. S.K. Tripathi, who
assisted Dr. S.P. Bansal in conducting post
mortem of deceased. P.W.-5 deposed that
the dead body of the deceased was
identified by Jamuna Prasad who revealed
his identity as the uncle of the deceased.
The postmortem was conducted at 8:15
a.m. on 30.01.2013. P.W.-5 also narrated
the ante mortem injuries found on the body
of the deceased.

(F) P.W.-6 constable clerk Rahul Singh
proved the Chik report No. 7/13. P.W-6
prepared and signed the chik report in his
hand writing. The chik report is exhibited
(Ka-3).

(G) P.W-7 Uma Shankar Yadav,
Principal of M.D. Public School deposed
that the name of the deceased ''X' was
entered in register prepared in the school in
due course of business and the name of the
deceased ''X' was registered at page number
42 in the register. Her name was deleted by
red pen after her death.

(H) P.W.-8 Dinesh Kumar is the
witness of recovery of the under- garments
of the appellant recovered at the pointing
out of the appellant. He has proved the
recovery memo 9A/1 exhibit (Ka-7).
10 All. State of U.P. Vs. Govind Pasi
965

(I) P.W.-9 Raj Kumar Kannojiya is
also
the
witness
to
recovery
of
undergarments recovered at the pointing of
the appellant from the fields of Shri Pal. He
has also corroborated the exhibit (Ka-7).

(J) P.W.-10 Dr. Vipin Kumar Verma,
who medically examined the appellant on
31.01.2013 and prepared medico-legal
report exhibit (Ka-8).

(K) P.W.-11 Ajay Prakash Mishra, the
Investigating Officer of the Case No. 27/13,
who recorded the statement of witnesses
under Section 161 Cr.P.C, inspected the spot
wherefrom the dead body of the deceased ''X'
was recovered and prepared the map exhibit
(Ka-9).
This
witness
collected
blood
contained and simple earth and prepared the
recovery memo exhibit (Ka-10), and further
prepared the recovery memo of undergarments and other materials recovered from
the body of the deceased ''X' exhibit (Ka-11),
recovery memo of black shoes of deceased
''X' is exhibit (Ka-12). The Investigating
Officer prepared inquest report and other
relevant papers relating to postmortem,
photo-lash, challan-lash, letter written to
CMO, and letter written to R.I. etc (exhibits
Ka-14 to Ka-19), site plan of recovery
(exhibit
Ka-20)
and
after
completing
investigation submitted charge-sheet (exhibit
Ka-21), in Court.

10. Besides ocular evidence following
relevant documents were also produced by
the prosecution:-

(a) Written report (exhibit Ka-3),

(b) FIR of case crime No. 27 of 2013
(exhibit Ka-7),

(c) Recovery memo of under-garments
of accused (exhibit Ka-7).

(d) Medico-legal report of accused
Govind Pasi (exhibit ka-8).

(e) Site plan of Crime No. 27 of 2013
(exhibit Ka-9).

(f) Recovery memo of blood contained
and plain earth (exhibit Ka-10).

(g) Recovery memo of undergarments
and leggings of deceased ''X' (Exhibit Ka11).

(h) Recovery memo of shoes of
deceased ''X'(exhibit Ka-12).

(i) Recovery memo of school bag
containing copies and books of deceased
''X' (exhibit Ka-13).

(j) inquest report (exhibit Ka-14).

(i) The site plan of Crime No. 27 of
2013 (exhibit Ka-20).

11. After completion of ocular and
documentary evidence adduced by the
prosecution, the statement of accused was
recorded under Section 313 Cr.P.C. The
appellant denied the allegations levelled
against him and stated that he has been
falsely implicated in the case. The appellant
also denied the recovery of article on his
pointing out and the site plan prepared by
the Investigating Officer. The appellant
stated that he was arrested from his house
by showing fabricated recovery from the
accused and has falsely been implicated in
this case. The medico-legal report is also
prepared
under
the
pressure
of
complainant.
All
the
witnesses
are
interested witnesses and therefore, their
evidence cannot be relied upon.

12. The appellant adduced defence
evidence in his favour to rebut the case of
prosecution. D.W 1 Bihari Lal appeared in
Court and deposed that he is residing in
village
after
his
retirement
since
31.07.2008. The appellant resides in front
of his house. On the relevant date i.e. on
29.01.2013, the accused Govind was sitting
with his grand parents in his chappar
around the bonfire. Due to cold weather the
accused including his grand parents and
three sisters were at home.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

13. No other witnesses was adduced
by the accused in his defence.

14. After hearing the submission of
D.G.C and learned counsel for accused and
upon perusal of record, learned trial court
found that the accused was guilty of
offence under Section 376, 302 IPC and
sentenced
the
accused
with
life
imprisonment and Rs. 20,000 as fine under
Section
376
IPC
further
simple
imprisonment in default of payment of fine
and further sentenced the accused with
death penalty and with fine 20,000 under
Section 302 IPC.

15. Being aggrieved with the
impugned judgment and order of the trial
court the accused/appellant has filed this
criminal appeal No. 937 of 2015 from jail.

16. Heard Shri Manish Bajpai,
learned
Amicus
Curiae,
for
the
convicted/appellant and Shri Vimal Kumar
Srivastava, learned Government Advocate,
assisted by Shri Chandra Shekhar Pandey,
learned Additional Government Advocate
for the State.

17. The learned counsel for the
appellant has assailed the judgment and
order passed by the learned trial court on
the ground that it is neither warranted in
law nor on facts. The judgment is perverse
and contradictory to the facts on record.
The trial court has committed error in the
eyes of law. The accused is innocent and
has been falsely implicated in the present
case due to political rivalry with the help of
police. He was not named in the first
information report and his name was
dragged in the case after the recovery of the
dead body. P.W.-3 did not support the
prosecution story and has been declared
hostile. The case is based on circumstantial
evidence and the chain of circumstances is
not complete one.

18. No Forensic Science Laboratory
report in respect of the alleged recovery of
undergarments, semen and blood of the
appellant is placed on record. No DNA test
has
been
ever
conducted
by
the
prosecution. As per the prosecution story
the blood stain spots were found on the
alleged recovered undergarments of the
appellant as well as on the undergarments
of the deceased ''X'. They were not send to
Forensic Science Laboratory for obtaining
report by the prosecution. Semen slide of
the appellant was also unable to compete
successfully with the semen slide of the
deceased
''X'.
No
Forensic
Science
Laboratory report was obtained to ascertain
that the alleged scratch marks, found on the
face of the appellant, were caused by the
nails of the deceased ''X'. The owner of the
sugarcane field Shri Pal is not produced in
court as a witnesses. The alleged recovery
is highly suspicious. There was no material
on record before the learned trial court to
prove the story of the incident. Therefore,
the judgment of the trial court is totally
biased against the appellant.

19. Learned trial court has not taken
into consideration the evidence of defence
witness Bihari Lal who is an independent
witness. The learned trial court has given
fanciful presumption and reasons in the
judgment in favour of the prosecution.
There are major contradictions on material
points in the statement of prosecution
witness of fact and their statement did not
inspire any confidence and the same are not
reliable and trustworthy. The prosecution
has failed to prove its case beyond
reasonable doubt. The provisions of section
313 Cr.P.C has not been properly complied
with. The investigation of the case is highly
10 All. State of U.P. Vs. Govind Pasi
967
tainted. The sentence awarded by the
learned trial court against the appellant is
too severe. The appellant is a young boy
having no criminal history. Therefore by
way of this appeal the appellant has prayed
for setting aside the judgment and order
dated 17/5/2018 passed by the trial court.

20. Learned counsel for the appellant
argued that the learned trial court has erred in
convicting and sentencing the appellant as there
is no evidence against him. The prosecution has
not proved its version. The post mortem report
does not corroborate the version of eye
witnesses. He was not named in the FIR which
came into the light only after the recovery of the
dead body. The sentence awarded by trial court
is too severe, therefore, the judgment and
sentence passed by trial court is liable to be set
aside.

21 To the contrary, learned Government
Advocate appearing on behalf of the State has
argued that the victim was 10 years old and
when she was returning from school, the
appellant lifted her in his lap, carried her to
sugarcane field of Shripal, committed rape and
brutally murdered her. She was strangulated by
her own scarf which she was wearing on her
head at the time of going to school. It is also
stated by learned A.G.A that this is a rarest of
the rare case where the appellant has murdered
10 years old girl after committing rape therefore
the judgment passed by the learned trial court is
based on ocular and documentary evidence as
well as the recovery of under-garments of the
deceased ''X' which were recovered at the
pointing out of the accused appellant. Therefore
the judgment of the trial court is sustainable and
is liable to be upheld.

22. We have considered the rival
submissions and perused the record of the lower
court as well as record of this appeal and gone
through the settled case law.

23. In the present matter FIR was
lodged by the informant against the
unknown person stating that the deceased
''X' was his niece. She was studying in
M.D. Public School in Class III. On the
date of occurrence on 29.01.2013 she went
to the school at about 9:30 a.m. but did not
return from the school. During search the
dead body of the deceased ''X' was found in
the field of Shripal. She was strangulated
by her own scarf.

24. In order to prove the case, the
prosecution adduced evidence of P.W.-1
who stated on oath that her niece was
studying in M.D. Public School in Class
III. She did not return from school at due
time and on being searched the dead body
was found in the field of Shripal.

25. P.W.-2 deposed in Court and
stated that on 29.01.2013 when he was
carrying paddy at his horse-cart he saw
Govind Pasi standing at the chak road near
the sugarcane field and he saw the deceased
''X' running towards the school carrying her
school bag thereafter P.W.-2 returned his
home.

26. P.W.-3 deposed that at about 10
a.m. on 29.01.2013 he was passing through
the road and when he reached the chak road
near Gurwa Kumbhi he saw the appellant
standing in front of sugarcane field of
Shripal and the deceased ''X' was going
towards school via Gorwa Chak Marg. As
soon as she reached near the sugar cane
field of Shripal, the convict appellant
Govind Pasi lifted her in his arms and
moved towards the field of Shripal.
Thereafter, the P.W.-3 got shaved and went
to his duty. Afterwards on his return from
duty when he came to know about the
death of the deceased ''X'. Then he became
assured that the incident must have been
968 INDIAN LAW REPORTS ALLAHABAD SERIES
committed by the accused Govind Pasi and
no one else.

27. P.W.-4 stated on oath that when he
was
returning
from
defecation
on
29.01.2013 at about 10 a.m, he saw the
deceased going to school carrying her
school bag. The deceased did not return
thereafter.

28. P.W.-5 stated on oath that he
conducted autopsy on the body of the
deceased along with Dr. S.P. Bansal. The
dead body of the deceased was brought by
Constable Sirajuddin and Constable Angad
Verma in the sealed condition. The body
was identified by the uncle of the deceased.
The whole proceedings of postmortem was
videographed. The following ante mortem
injuries were found on the body of
deceased ''X'.

(i) Two contusions on the right side of
the face 3cm below the eye, 0.3x0.2cm in
lower jaw area.

(ii) Five contusions of area 0.2x0.2 cm
to 0.3x0.3 cm extended up to left eye
towards the left nose and contusions of
5x3cm on the cheek.

(iii) Ligature marks 0.8x3 cm on the
upper side of the neck on the left side in the
middle line.

29. After conducting postmortem both
the doctors opined that the cause of death is
asphyxia due to strangulation. P.W.-5
collected and prepared vaginal swab slide
and sixth left rib for the purposes of DNA
test.

30. P.W.-6 Constable Rahul Singh
stated that he lodged the FIR on the basis of
written report by Jamuna Prasad and
reduced in writing the chik report No. 7 of
2013 at about 20:30 p.m. and the chik
report (Ka-3) G.D No. 38 as K-4.

31. The P.W.-7 appeared in trial court
with the S.R. Register and prove that the
name of the deceased was entered at page
No. 42 and her name was deleted when she
passed away. P.W.-7 further stated that class
teacher Sukh Raj Maurya marked absence
of deceased in the attendence register on
29.01.2013. The copy of register is
produced exhibit Ka-6.

32. P.W.-8 Dinesh Chand Chaurasiya
deposed that on 30.01.2013 at 8:30 p.m.,
Investigating Officer recovered undergarments of appellant Govind Pasi at his
pointing out which was hidden near the
well situated on the western side of the
sugarcane field. The convicted Govind Pasi
gave his blood sample, semen and undergarments to Investigating officer who
sealed them and prepared recovery memo
which was signed by him and by witness
Ram Kumar as well as by the accused
Govind Pasi which is exhibit Ka-a7. P.W.-9
also corroborated the evidence of P.W.-8.

33. P.W.-10 Dr. Vipin Verma stated on
oath that he medically examined the
appellant and abrasions were found on the
face of the appellant caused by pointed
object which were 48 to 72 hours old. The
witness also stated that these abrasions may
be caused by nails of 10 years old girl. The
following injuries were found on the
accused appellant:

(1) Multiple abrasion (3.5x 1.5 cms)
right side of face 03 cms away from right
angle of mouth.

(2) Abrasion (01x0.3 cms) left side of
face 3.5 cms away from left angle of
mouth.
10 All. State of U.P. Vs. Govind Pasi
969

Duration: 48 to 72 hours.

Opinion: All injuries are caused by
some hard and blunt object and simple in
nature.

34. It is the case based on
circumstantial evidence. Hon'ble Apex
Court had laid down certain principles
applicable to appreciation of evidence in
cases involving circumstantial evidence in
Manoj and others Vs. State of Madhya
Pradesh reported at 2022 LiveLave (SC)
510:

"149. In one of its earlier decisions
this court had in Hanumant v. The State of
Madhya Pradesh indicated that the correct
approach of courts trying criminal cases
involving circumstantial evidence should be
that the circumstances alleged, be fully
established;all the facts so established
should be consistent only with hypothesis of
the guilt of the accused; circumstances
should be conclusive and of such tendency
that they should be such as to exclude every
hypothesis but the one proposed to be
proved. This view was followed later in
Tufail v. State of Uttar Pradesh and Ram
Gopal v. State of Maharashtra. All these
and other decisions were revisited in the
three-judge bench decision in Sharad Birdi
Chand Sarda v. State of Maharashtra and
the court enunciated a set of principles that
every court trying criminal cases entirely
based on circumstantial evidence had to
follow.

150. The conclusions recorded by this
court in Sarda were listed in Para 152
(which were characterised in Para 153 as
"five golden principles").They are extracted
below:

"(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. It may be noted here that
this Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is not only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji Sahabrao Bobade & Anr v State
of Maharashtra where the following
observations were made:

"Certainly, it is a primary principle
that the accused must be and not merely
may be guilty before a court can convict
and the mental distance between 'may be'
and 'must be' is long and divides vague
conjectures from sure conclusions."

(2) The facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say. they
should not be explainable on any other
hypothesis except that the accused is guilty,

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

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

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused.

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

151. These principles have stood the
test of time, and the evidence in all criminal
cases, have been evaluated in their light,
throughout the country. In light of these
binding principles this court would now
examine
whether
the
circumstances
supported by evidence, i.e., those accepted
by this court in the previous part of the
judgement, was of such conclusion as to
stand the test of the five golden principles
enunciated in Sarda (supra).
970 INDIAN LAW REPORTS ALLAHABAD SERIES

35. P.W.-1 Jamuna Prasad stated that
deceased was his niece who was going to
school on the fateful day. When she did not
return from school at due time, he started
search and during search he found the dead
body of the deceased in the sugar case
field. Her scarf was tied on her neck.
Apparently, he presumed that she was
murdered. This witness is not the witness of
fact rather he proved exhibit-Ka 2. PW-2 in
his statement proved the fact that at about 8
to 8:30 a.m. on 29.01.2013, he unloaded
paddy in the field of Mata Badan r/o
Village Kumbhi situated near government
tubewell and loaded rice belonging to Ram
Abhilash and delivered the same. As soon
as he reached near the field of Shripal he
saw convict/appellant Govind Pasi standing
there and his bicycle was also lying there.
This witness proved the the deceased ''X'
was running towards the school carrying
her bag. When he returned home in the
evening, he came to know that the deceased
''X' did not return from school and he along
with the complainant started searching the
deceased ''X'. As soon as they reached the
place where the accused was standing in
the morning and deceased ''X' was moving
towards the school, the dead body of the
deceased ''X' was found in the field of
Shripal. The body of the deceased ''X' was
naked and pooled in blood at that time.
P.W.-3 also corroborated the testimony of
P.W.-2 and stated that he was going to
government tube well in village Kumbhi
and saw that convicted appellant Govind
Pasi standing near the sugarcane field of
Shri Pal and the deceased ''X' aged about 10
years was going to school via Gorwa Chak
Marg. The witnesses also deposed that as
soon as the deceased ''X' reached near the
sugar cane field of Shripal, Govind Pasi
lifted her in his arms and went towards the
field. Thereafter the witnesses went on his
duties and came to know in the evening
that the dead body of the deceased ''X' was
found in the field of Shripal. He firmly
believed that this must have been done by
convict appellant Govind Pasi.

36. All the prosecution witnesses No.
2 to 4 had seen the accused Govind Pasi
standing in front of the sugar cane field of
Shripal and the victim running towards her
school. P.W.-3 had also proved that the
deceased ''X' was being taken towards the
field by the appellant. P.W.-7 who is the
Principal has proved that the victim did not
attend the school on the fateful day i.e. on
29.01.2013 which further corroborates that
fact that the deceased ''X' was picked up by
accused-appellant before she reached her
school. . She was not seen thereafter by any
of the villagers. Thus prosecution proved
last
seen
evidence.
The
chain
of
circumstances is also closely related and
proves that the victim was going to school
and the accused was near the field of Shri
Pal and when the deceased ''X' reached near
the field, the convicted appellant Govind
Pasi lifted her in her arms and moved
towards the filed. Thereafter, she was found
dead in the field of Shripal.

37. In State of U.P. Vs. Satish (2005)
3 Supreme Court Cases page no. 114,
Hon'ble Supreme Court has held thus:

" 22. The last-seen theory comes into
play where the time-gap between the point
of time when the accusd and the deceased
were last seen alive and when the deceased
is found dead is so small that possibility of
any person other than the accused being
the
author
of
the
crime
becomes
impossible. It would be difficult in some
cases to positively establish that the
deceased was last seen with the accused
when there is a long gap and possibility of
other persons coming in between exists. In
10 All. State of U.P. Vs. Govind Pasi
971
the absence of any other positive evidence
to conclude that the accused and the
deceased were last seen together, it would
be hazardous to come to a conclusion of
guild in those cases. In this case there is
positive evidence that the deceased and the
accused were seen together by witnesses
Pws 3 and 5, in addition to the evidence of
PW 2."

38. Duryodhan Rout Vs State of
Orissa 2014 (86) ACC 574 Hon'ble
Supreme Court has held thus:

"11. The trial court convicted the
appellant on the basis of the chain of
circumstantial evidence available against
the accused. It was found that the accused
carried the deceased on his cycle at about
4 pm but returned alone at 5p.m. He
confessed to have murdered the deceased
before Mulia Bhoi (P.W 5) ........ Thus, the
accused was last seen with the deceased.
There is nothing to indicate that within one
hour, there was any scope for anybody else,
other than the accused to commit rape and
murder of the deceased. The chain of
circumstances of the case thereby leads to
the hypothesis that the accused and the
accused alone was the author of the crime,
and therefore, the trial court rightly
convicted the accused under Sections 376
(2) (f)/ 302/201 IPC."

39. In Purna Chandra Kusal Vs.
State of Orissa 2012 (78) ACC 957;
Hon'ble Supreme Court has held as
follows:

"6. We find absolutely no reason to
interfere with the conviction of the
appellant. In addition to the last seen
evidence of P W 5 and PW10, we have the
evidence of the recoveries made at the
instance of the appellant. The clothes that
the appellant and the deceased had been
wearing
had
also
been
taken
into
possession by the investigating agency and
were found to be stained with human blood.
We find, therefore, that the last seen
evidence finds full corroboration from the
recoveries."

40. We have gone through all the
documents and evidence produced in the
impugned case by the prosecution. The
witness produced by the prosecution
unequivocally stated that the girl was seen
by the witnesses in the arms of appellant
who was carrying the victim towards the
sugarcane field of Shri Pal. P.W.-7 deposed
that she did not attend the school on that
day as per the register and she was not seen
by any one in village. It is also pertinent to
mention here that in the present case
abrasion were also found on the face of the
accused. P.W.-10 Dr. Vipin Kumar Verma
proved that convict Govind had injuries in
the nature of abrasion 3.5 cm x 1.5. cm at
the distance of 3 cm from the right side of
the face of the appellant and 1.0x0.3 which
is found 3.5 cm away from the left side of
the lips. The injuries are proved by the
doctor during the trial and it is stated that
these injuries may be caused to the
appellant by nails of 10 years old girl.

41. The accused denied the allegation
in his statement under Section 313 Cr.P.C
but did not explain how the injuries on his
face were caused. P.W.- 3 though declared
hostile in court under cross-examination
made by the ADGC, has admitted that the
accused confessed in the police station that
he committed rape upon the victim and
strangulated her.

42. Hon'ble Apex Court held in State
of U.P. Vs. Anil Singh reported at (1998)
supp SCC 686 that:
972 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. It is also our experience that
invariably the witnesses add embroidery to
prosecution story perhaps for the fear of
being disbelieved. But that is no ground to
throw the case overboard, if true, in the
main. If there is a ring of truth in the main,
the case should not be rejected. It is the
duty of the court to cull out the nuggets of
truth from the evidence unless there is
reason to believe that the inconsistencies or
falsehood are so glaring as utterly to
destroy confidence in the witnesses. It is
necessary to remember that a Judge does
not preside over a criminal trial merely to
see that no innocent man is punished. A
Judge also presides to see that a guilty man
does not escape. One is as important as the
other. Both are public duties which the
Judge has to perform"

43. It has been further emphasized
that if discrepancies in the depositions are
minor,
that
that
witnesses
contradict
themselves during their testimonies as
opposed to their previous police statements
what is important is that the nature of
contradictions. In Rammi @ Rameshwar
Vs. State of Madhya Pradesh, Hon'ble
Supreme Court held that:

"24. ... Courts should bear in mind
that it is only when discrepancies in the
evidence of a witnesses are so incompatible
with the credibility of his versions that the
Court
is
justified
in
jettisoning his
evidence. But too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as between
the evidence of two witnesses or as between
two statements of the same witness) is an
unrealistic approach for judicial scrutiny"

44. Thus in view of the above said
facts prosecution has proved complete
chain of circumstances to prove the guilt of
appellant to the extent that no other
conclusion can be arrived at except the
guilt of the appellant. There is cogent
evidence to prove that the the victim was
subjected to rape and murder by convicted
appellant only.

45. Insofar as the question of motive
is concerned in the case of circumstantial
evidence the prosecution has to prove the
motive behind the crime but in cases of
sexual assault motive looses its importance
to be proved. Besides, the motive is
something in the mind of accused which is
not always possible to be proved by
prosecution. Apparently accused/appellant
raped the deceased who was a ten year od
girl to satisfy his lust and murdered her in
order to suppress the evidence against him.

46. In the case of State of U.P. Vs.
Krishanpal 2008 (16) SCC 73 it has been
held by the Supreme Court that the motive
can be considered as a circumstances which
is relevant for evidence. Similarly in the
case of Shriaji Genu Mohite Vs. State of
Maharashtra 1973 Supreme Court 55 it
is observed by the Supreme Court that in
case the prosecution is not able to discover
motive the same shall not reflect upon the
credibility of the witness proved to be
reliable
eyewitnesses.
However,
the
evidence as to motive would not do away a
case where the case is dependent upon
circumstantial evidence, said evidence
would fall as one of the link in the chain of
circumstantial evidence.

47.