# Virendra Baghel v. State of U.P

- **Citation:** (2022) 7 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-08
- **Case number:** Capital Case No. 15 of 2021
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-baghel-v-state-of-u-p-48838
- **Pages:** 20

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Circumstantial Evidence-There is no eye
witness account of either rape or murderFor
conviction
to
rest
solely
on
circumstantial evidence, it is necessary for
the
prosecution
to
prove
beyond
reasonable
doubt
each
of
the
circumstances that is to be relied against
the accused and must demonstrate that
the
circumstances
form
a
chain
so
complete that it leaves no reasonable
ground for the conclusion consistent with
7 All. Virendra Baghel Vs. State of U.P.
753
the innocence of the accused and shows
that in all human probability the act has
been done by the accused.

Settled law that in a case of circumstantial
evidence the prosecution has to prove each
circumstance beyond reasonable doubt so that
the same makes the links of a chain complete
pointing only to the guilt of the accused.

Criminal Law-Indian Evidence Act, 1872-
Section 3- Chance witness had to explain
his presence at the place where he
witnessed the deceased in the company of
the appellant-Explanation rendered by
PW-4 for his presence there is not
satisfactory and convincing-Conduct of
the chance witness subsequent to the
incident is also important, particularly,
whether he has informed anyone about
the fact.

Where a chance witness fails to explain his
presence at the place of occurrence as well as
his subsequent conduct, then his testimony
cannot be held to be trustworthy and reliable.

Criminal Law- Indian Evidence Act, 1872-
Sections 25 & 27- Confession made by an
accused to the Investigating Officer is
concerned, it is not admissible in evidence
by virtue of Section 25 of the Indian
Evidence Act-However, that portion of the
confession that leads to the recovery of
any incriminating material, such portion
alone, is admissible under Section 27 of
the Evidence Act-Material discrepancy in
the testimony of witnesses with regard to
the time of arrest of the accused.
Ordinarily,
where
the
arrest
of
the
accused becomes doubtful a taint gets
attached to the testimony of police
witnesses with regard to the disclosure of
the accused being the basis of recoveryrecovery of slippers of the deceased and
bricks
were
allegedly
made
in
the
presence of a number of witnesses but
none of those witness were examined
during trial. Recovery was sought to be
proved solely on the basis of testimony of
Sanjay Singh (PW-11), the Investigating
Officer, whose testimony, in respect of
arrest, we have found unreliable.
Only that portion of the confession of the
accused that distinctly pertains to the
recovery is admissible in evidence but where
the arrest is doubtful, independent witnesses
have not been examined and the testimony
of the investigating officeris also unreliable,
then no credibility can be assigned to the
recovery.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 293- Human
blood on the jeans (pant) of the appellant
is not a clinching circumstance against the
appellant as it has not been confirmed
whethe

## Text

_Characters 0–39,821 of 68,479. This is a partial read: ask again with offset=39821 for what follows._

752 INDIAN LAW REPORTS ALLAHABAD SERIES
strong suspicion, the accused cannot be
held guilty. The Apex Court in case of The
State
of
Odisha
Vs.
Banabihari
Mohapatra and another AIR 2021 SC
1375, in paragraph no. 38, observed:-

"It is well settled by a plethora of
judicial pronouncement of this Court that
suspicion, howsoever strong cannot take
the place of proof. An accused is presumed
to be innocent unless proved guilty beyond
reasonable doubt. This proposition has
been reiterated in Sujit Biswas v. State of
Assam reported in AIR 2013 SC 3817."

Recently, a three judges bench of
Apex Court in the case of Shailendra
Rajdev Paswan (supra), in paragraph 16,
observed as follows:-

"16. It is well settled by now that
in a case based on circumstantial evidence
the Courts ought to have a conscientious
approach and conviction ought to be
recorded only in case all the links of the
chain are complete pointing to the guilt of
the accused. Each link unless connected
together to form a chain may suggest
suspicion but the same in itself cannot take
place of proof and will not be sufficient to
convict the accused."

63. In the case at hand, the chain of
circumstances pointing to the guilt of
appellant
could
not
be
completed.
Therefore, in our view, the appellant is
entitled to be acquitted.

64. For all the reasons recorded
above, the judgment of the trial court in our
opinion cannot be sustained and is liable to
be set aside. The appeal is allowed. The
reference to confirm the death penalty is
answered in negative and reference to
confirm the death penalty awarded to
accused-appellant Ram Pratap @ Tillu is
rejected. The judgment and order of the
trial court is set aside. The appellant Ram
Pratap @ Tillu is acquitted of all the
charges for which he has been tried. The
appellant shall be released forthwith, unless
wanted in any other case, subject to
compliance of the provisions of Section
437-A Cr.P.C. to the satisfaction of the
court below.

65. Let a copy of the judgment be sent
to the court below for information and
compliance.
----------
(2022)07ILR A752
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

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

Capital Case No. 15 of 2021
(Reference No. 12 of 2021)

Virendra Baghel ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rizwan Ahmad, Sri Dilip
Kumar (Senior Adv.)

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Circumstantial Evidence-There is no eye
witness account of either rape or murderFor
conviction
to
rest
solely
on
circumstantial evidence, it is necessary for
the
prosecution
to
prove
beyond
reasonable
doubt
each
of
the
circumstances that is to be relied against
the accused and must demonstrate that
the
circumstances
form
a
chain
so
complete that it leaves no reasonable
ground for the conclusion consistent with
7 All. Virendra Baghel Vs. State of U.P.
753
the innocence of the accused and shows
that in all human probability the act has
been done by the accused.

Settled law that in a case of circumstantial
evidence the prosecution has to prove each
circumstance beyond reasonable doubt so that
the same makes the links of a chain complete
pointing only to the guilt of the accused.

Criminal Law-Indian Evidence Act, 1872-
Section 3- Chance witness had to explain
his presence at the place where he
witnessed the deceased in the company of
the appellant-Explanation rendered by
PW-4 for his presence there is not
satisfactory and convincing-Conduct of
the chance witness subsequent to the
incident is also important, particularly,
whether he has informed anyone about
the fact.

Where a chance witness fails to explain his
presence at the place of occurrence as well as
his subsequent conduct, then his testimony
cannot be held to be trustworthy and reliable.

Criminal Law- Indian Evidence Act, 1872-
Sections 25 & 27- Confession made by an
accused to the Investigating Officer is
concerned, it is not admissible in evidence
by virtue of Section 25 of the Indian
Evidence Act-However, that portion of the
confession that leads to the recovery of
any incriminating material, such portion
alone, is admissible under Section 27 of
the Evidence Act-Material discrepancy in
the testimony of witnesses with regard to
the time of arrest of the accused.
Ordinarily,
where
the
arrest
of
the
accused becomes doubtful a taint gets
attached to the testimony of police
witnesses with regard to the disclosure of
the accused being the basis of recoveryrecovery of slippers of the deceased and
bricks
were
allegedly
made
in
the
presence of a number of witnesses but
none of those witness were examined
during trial. Recovery was sought to be
proved solely on the basis of testimony of
Sanjay Singh (PW-11), the Investigating
Officer, whose testimony, in respect of
arrest, we have found unreliable.
Only that portion of the confession of the
accused that distinctly pertains to the
recovery is admissible in evidence but where
the arrest is doubtful, independent witnesses
have not been examined and the testimony
of the investigating officeris also unreliable,
then no credibility can be assigned to the
recovery.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 293- Human
blood on the jeans (pant) of the appellant
is not a clinching circumstance against the
appellant as it has not been confirmed
whether the blood was of the deceased or
of the appellant-There was no semen
found and so far as blood is concerned its
origin
was not
ascertained,
that
is,
whether it was of the appellant or the
deceased- Neither the recovery memo of
nail clipping of the appellant nor the
medical report of the appellant was
prepared and proved. Even the doctor,
who examined the appellant and took his
nail clipping, was not examined. Further,
there is no evidence on record to show
that the alleged nail clipping of the
appellant was sealed and forwarded to
forensic lab for analysis. In absence of
these material evidences, merely on the
basis
of
bald
statement
of
the
Investigating Officer, it cannot be held
that the nail clipping sent to forensic lab
was of the appellant. Otherwise also, we
do not consider the presence of blood in
the
nail
clipping
as
a
clinching
circumstance against the appellant for the
reasons: (a) due to disintegration it could
not be determined that blood found on
nail clipping was human blood; and (b) if
one uses nail to scratch one's body, often
traces of blood get trapped in the nails
hence presence of blood there, in absence
of determination of its origin, in our view,
is
not
a
clinching
incriminating
circumstance.

Where the prosecution has failed to ascertain
the origin of the blood, as the blood was found
to be disintegrated, and has also failed to prove
the recovery memo of the nail clipping then the
same cannot be said to constitute a clinching
evidence against the accused.
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 53 A-When the
appellant was arrested, as per provisions
of
Section
53A
Cr.P.C.,
his
medical
examination should have been conducted.
No such medical examination of the
appellant has been brought on record
much less proved.

Not conducting the medical examination of the
accused would be one of the grounds for
disbelieving the story of the prosecution.

Criminal Law- Indian Evidence Act, 1872 -
Section 106 of the Evidence Act does not
absolve the prosecution of its primary
responsibility to prove the prosecution
case
beyond
reasonable
doubt-Before
shifting the burden upon the accused to
furnish explanation of the incriminating
circumstances appearing against him, it is
necessary for the prosecution to prove its
case
beyond
reasonable
doubt-The
prosecution has failed to prove beyond
reasonable doubt that the deceased was
last seen alive with the accused-appellant
and that the recoveries were made at the
instance
of
the
appellant
therefore,
burden could not have been placed upon
the
appellant
to
explain
those
circumstances.

Settled law that the burden under Section 106
of the Evidence Act cannot be shifted upon the
accused before the prosecution proves its case
beyond reasonable doubt. (Para 43, 44, 51, 55,
56, 58, 59, 61, 62)

Criminal Appeal allowed. (E-3)

Case Law/Judgements relied upon:-

1. Anwar Ali Vs St. of H.P, 2020 (10) SCC 166

2. Rajesh Yadav & ors. Vs St. of U.P., 2022 (3)
ADJ 114 (SC)

3. Jarnail Singh Vs St. of Punj., 2009 (9) SCC
719

4. Rammi @ Rameshwar Vs St. of M.P. (1999) 8
SCC 649
5. Krishan Kumar Malik Vs St.of Har. (2011) 7
SCC 130

6. Shivaji Chintappa Patil Vs St. of Maha. 2021
(5) SCC 626

(Delivered by Hon'ble Sameer Jain, J.)

1. The appellant (Virendra Baghel)
has been convicted under Section 302, 201,
363, 376AB IPC and 3(2)(V) SC/ST Act
vide
judgment
and
order
dated
17.09.2021/18.09.2021
passed
by
Additional District and Sessions Judge/
Additional Special Judge, POCSO Act
Court No.1, Firozabad in P.S.T. No. 1730
of 2019 (State of U.P. Vs. Virendra Baghel)
and
has
been
awarded
following
punishment:-

(i) death penalty under Section
302 IPC and 376AB IPC read with Section
3(2)(V) SC/ST Act

(ii) 7 years R.I. with fine of Rs.
5,000/- and in default one month additional
imprisonment under Section 201 IPC and
363 IPC

2. As for offences punishable under
Section 302, 376 AB IPC, read with
Section
3(2)(V)
SC/ST
Act,
capital
sentence has been awarded, the court below
has sent a reference for confirmation of
death penalty, which has been registered as
Reference No. 12 of 2021..

3. The appellant has also submitted
his appeal from jail against the aforesaid
judgment and order, which has been
forwarded by the Superintendent (Jail),
Firozabad vide letter dated 23.09.2021. The
same has been registered as Capital Case
No. 15 of 2021. The appellant has prayed
that the judgment and order of conviction
and sentence recorded by the trial court be
7 All. Virendra Baghel Vs. State of U.P.
755
set aside and that he be acquitted of the
charges.

4. To represent the appellant, who
could not engage a private counsel, Sri
Dilip Kumar, learned Senior Counsel, was
appointed as Amicus Curiae.

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

Introductory facts

6. The prosecution story in a nutshell
is that an FIR was lodged by PW-1 on
26.04.2019, at about 6.10 hours at Police
Station Linepar, District Firozabad, under
Section 363 IPC, against unknown person,
which was registered as Case Crime No. 61
of 2019. As per the FIR, on 25.04.2019, at
about 11.00 AM, the deceased (i.e.
daughter of the informant-PW-1), aged
about 11 years, had gone missing. The FIR
neither named any suspect nor disclosed
where the girl could have gone yet, without
any basis it was registered under Section
363 IPC.

7. On 26.04.2019, at about 13.16 hours,
an information is received by Police Station
Basaipur Mohamadpur, Firozabad that dead
body of a lady is lying in Gram Sofipur
behind the shop of Barashree in a burnt
condition. This information is entered as G.D.
Entry No. 20 at 13.16 hours on 26.04.2019
whereafter S.I. Sahab Singh (PW-10) arrived
at the spot and prepared the inquest report
(Ext. Ka-13), by about 16.30 hours. By the
time the inquest report was prepared, the
identity of the body could not be established.
Therefore, inquest proceeding was conducted
in respect of an unknown body of a girl aged
about 13 years.

8. On 27.04.2019 family members of
the deceased identified the dead body as to
connect it with the missing girl referred to in
Case Crime No. 61 of 2019 (supra).

9. The autopsy of the body was
conducted on 27.04.2019 at about 3.30 PM.
As per autopsy report (Ext. Ka-4) the body
was in a decomposed condition, rigor mortis
had passed all over the body and the skin had
peeled off at places. The autopsy surgeon
found following ante mortem injuries:-

1. Fracture of Nasal Bone and
mandible, skin and muscles absent.

2. Fracture right radious and ulna
lower part, right palm missing, skin and
muscle absent, bone exposed of whole right
upper limb

3. Depressed fracture of left tempo
parietal, skin absent, bone exposed.

4. Contusion 8cm X 4cm upper
part of chest, right of midlime

5. Abraded contusion 18cm X 3cm
on back of chest

Note:- Skin and muscle missing at
places (face, scalp, right upper limb).

Genital Organs (vagina) found
lacerated. Uterus was non gravid. Vaginal
smear slide was prepared and sent for
examination.

10. As per autopsy report, death
occurred about two days before due to
shock and haemorrhage as a result of ante
mortem injuries. After autopsy, a sealed
bundle of clothes i.e. Salwar, Kurta and one
pair of Payal was handed over to police.

11. On 28.04.2019, the appellant was
arrested regarding which, an arrest memo
(Ext. Ka-10) was prepared and, on his
756 INDIAN LAW REPORTS ALLAHABAD SERIES
pointing out, four bloodstained bricks and
one pair of black colour Chappal (slipper) of
the deceased were recovered from the spot on
28.04.2019. Investigating Officer also lifted
bloodstained and plain earth from the spot
and prepared the recovery memo (Ext. Ka14). Recovery memo of slipper of deceased is
Ext.
Ka-15
and
recovery
memo
of
bloodstained bricks is Ext. Ka-16. On
28.04.2019, Investigating Officer also seized
Jeans (pant) of the appellant which he
allegedly wore at the time of the incident and
was wearing at the time of arrest. In this
regard a seizure memo (Ext. Ka-17) was
prepared. The jeans (pant) of the appellant
was seized to find out whether it carried
semen stain. During investigation, Top,
Kurta, one pair Payal, bloodstained and plain
earth, Bricks, Jeans (pant of appellant),
Vaginal smear and nail clippings of the victim
were sent to Forensic Lab, Agra, U.P.
Forensic Lab Report, dated 15.06.2019, was
forwarded to C.O. Sadar, Firozabad. As per
Forensic report, dated 15.06.2019, on all the
items blood was found. On item nos. 1 (Top),
2 (Kurta), 4 (earth piece), 5, 6 (Bricks), 7
(Jeans Pant) and 8 (Vaginal smear) human
blood was found. On item no. 8 (vaginal
smear) blood/sperm of human origin was
found. No sperm could be found on Jeans
Pant.

12. After investigation, Investigating
Officer submitted charge-sheet against the
appellant under Sections 363, 302, 376AB,
201 IPC and Section 3(2)(V) SC/ST Act
and 5(m) POCSO Act. After submission of
charge sheet cognizance was taken and on
26.8.2019 charges were framed under
section 363, 302, 376 A B, 201 IPC and
3(2)(v) SC/ST Act and 5(m)/6 POCSO Act
against the appellant. Appellant denied all
the charges and claimed trial.

Prosecution Evidence

13.

During
trial,
prosecution
examined 11 witnesses. Their testimony is
noticed below:-

14. PW-1 is the informant of the
case. She is the mother of the deceased.
She stated that on 25.4.2019, at about 11
am, her daughter (the deceased), aged
about 11 years, had gone to play but she did
not return. At that time, she (the deceased)
wore payjama-kurta. PW-1 stated that
report of the incident was dictated by her to
X (not examined), who wrote it, and the
same was given by her at the police station.
The written report was marked Ext. Ka-1.
PW-1 stated that, later, she came to know
that the appellant raped and killed her
daughter by crushing her head with the help
of bricks. She further stated that the bricks
used in the incident were recovered at the
instance of the appellant.

15. During cross-examination, PW-1
stated that she is illiterate but can sign. On
the report, she had put her thumb
impression. PW-1 stated that the incident is
of 25th but she is not aware about the
month and the year as she is illiterate. PW1 stated that now she does not remember
who was the scribe of the report. PW-1
stated that she named the appellant. His
name was disclosed by her Jethani (PW-2).
During cross-examination, PW-1 stated that
the house of the appellant is in front of her
house and that after lodging the report, the
appellant was apprehended by her and
others and they took him to the police
station. She further stated that she does not
remember after how many days of the
report, appellant was apprehended and
taken to the police station. She also could
not tell as to for how many days the
appellant was detained at the police station.
PW-1 could not tell as to on how many
papers police got her thumb impression.
7 All. Virendra Baghel Vs. State of U.P.
757
She stated that the written report was
dictated by her and was scribed at the
police station. She stated that the police did
not take her to any other place except the
police station. PW-1 also stated that the
written report (Ext. Ka-1) was read over to
her. She denied the suggestion that the
report was not read over to her.

16. PW-2 is the Aunt of the
deceased (wife of the elder brother of the
father of the deceased). She stated that on
25.4.2019, at about 11:00 AM, when she
was sitting at her house, deceased was seen
crossing the railway track. PW-2 requested
the deceased not to cross the track but she
(deceased) did not pay any attention to her
advise and crossed the railway track. When
the deceased was standing across the track,
she saw the accused also crossing the track
and talking to the deceased and thereafter
the appellant took her away. During crossexamination, PW-2 stated that the railway
track is near her house but she does not
know the place from where the dead body
was recovered. She (PW-2) also stated that
she had informed the informant (PW-1) on
the same about what she had seen but she
was not aware as to who was the accused in
the report. PW-2 stated that she witnessed
the deceased crossing the railway line at
about 11 AM. But after the train passed
from the line, she did not see the deceased
thereafter. PW-2 stated that the appellant
and the deceased were spotted together,
talking to each other, for five minutes and,
thereafter, where they went she does not
know. PW-2 denied the suggestion that she
did not witness the deceased in the
company of the appellant.

17. PW-3 is the uncle of the
deceased. According to PW-3, the deceased
was enticed away and killed by the
appellant after committing rape. PW-3
stated that the deceased belonged to
Bahalia caste, which is a scheduled tribe.
During cross-examination, PW-3 stated that
on the date of incident, he was not at home.
He had gone to buy bangles. He stated that
his wife (PW-2) informed him about the
incident, at about 3 pm. PW-3 stated that
his brother and brother's wife (PW-1) had
gone to lodge the report on the date of
incident. He stated that he had gone to the
police station along with the wife of his
brother (PW-1) to lodge the FIR but he is
not aware whether any person's name was
disclosed in the FIR or not. PW-3 stated
that after a day or two of the incident, dead
body of the deceased was recovered. PW-3
accepted the suggestion that he did not
witness the deceased (i.e. the victim) going
with any one and that what he has stated is
on the information received from his wife.

18. PW-4 is the neighbour of
informant (PW-1). He stated that on
25.4.2019 when he was going to the
market, he saw the appellant with the
deceased standing in front of a bank in
Ram Nagar. He asked the deceased as well
as the appellant as to where they were
going and the appellant informed him that
they were going to the market. PW-4 stated
that thereafter he did not see the deceased
alive. He stated that the appellant enticed
away the deceased, raped and murdered
her.

19. During cross-examination, PW-4
stated that he is a graduate and sells
bangles. He has no relationship with the
family of the deceased and that his house is
about 50 meters away from the house of the
informant. He stated that on 25.4.2019 he
had left his house to go to Shikohabad for
business at about 5.30 am; sold bangles till
about 10 am and returned back home by
about 2.00 pm. PW-4 stated that he used
758 INDIAN LAW REPORTS ALLAHABAD SERIES
the same path for going and coming back
home and on that route no Bank is located.
During cross-examination, PW-4 stated that
he saw the deceased at Ram Nagar S.B.I.
Bank at about 11.30 am but admitted that
this information was not given by him
either to the informant or to the police.

20. Constable Ravindra Singh, is
PW-5. He proved the chik FIR as Ext. Ka-2
and computerized G.D. Entry of kayami
mukadma as Ext. Ka-3.

21. In his cross-examination, PW-5
stated that the case was lodged against
unknown person and at the police station,
the informant (PW-1) and the scribe (not
examined) had arrived on 26.4.2019 at 6:10
am in the morning and they had come with
a written report (Ext. Ka-1). PW-5 denied
the suggestion that he did not prepare the
chik FIR as per the application given by the
informant (PW-1).

22. Jitendra Singh is PW-6. He is
one of the witnesses of the inquest report
(Ext. Ka-13). He stated that on 26.4.2019,
in Sofipur region of police station Basai
Mohammadpur, a dead body of an
unknown female was recovered which was
in a decomposing state. The inquest of the
body was completed by about 1:00 PM.

23. In his cross-examination, PW-6
stated that he is a resident of Sofipur; while
he was going towards his field, on the way,
seeing the crowd, he stopped; police
arrived there 5 to 6 minutes after his
arrival; he does not know who informed the
police; the dead body was lying in field but
he does not know whose field it was. PW-6
stated that dogs had eaten a major portion
of the body. The body was carrying a
payjama. But the condition of the body was
very bad, therefore, it was not possible to
identify the same. PW-6 stated that where
the body was lying, there were no bushes
around.

24. Dr. Anurag Vyas is PW-7. He is
the autopsy surgeon who conducted the
autopsy of the body, on 27.4.2019. PW-7
stated that he received the body in an
unsealed condition. According to PW-7,
dead body was in a decomposed condition
and rigor mortis had passed from all over
the body. Skin peeled off at the places and
eyes, mouth, tongue and teeth were not
present. He described the injuries noticed
by him, which we have already noticed
above.

25. According to PW-7, vagina was
ruptured and he had prepared a vaginal
smear slide and had sent it for pathological
examination. According to PW-7, time of
death was about two days before autopsy
and cause of death was due to ante mortem
injuries. PW-7 stated that salwar, kurta and
one pair of anklet (after sealing) were
sealed and handed over to the police. PW7 proved the autopsy report as Ext. Ka-4.
In his cross-examination, PW-7 stated that
the right hand of the body of the deceased
was missing, skin and muscles of face and
scalp were also missing. According to PW7, the age of the deceased would be
around 13 years. PW-7 stated that the
deceased might have taken food 3 to 5
hours before her death. He stated that the
body of the deceased was identified as per
information provided by father or uncle of
the deceased.

26. Baldev Singh Khaneda is PW-8.
He is the 3rd Investigating Officer who
investigated the case from 21.6.2019. He
proved few stages of the investigation and
addition of Section 3 (2)(v) SC/ST Act. He
proved the charge sheet as Ext. Ka-11.
7 All. Virendra Baghel Vs. State of U.P.
759

27. In his cross-examination, PW-8
stated that he perused the caste certificate
of the victim (deceased) she was member
of SC/ST caste. He stated that during
investigation he had asked the doctor
whether the victim had been raped and the
doctor had confirmed it.

28.

PW-9
is
Sub
Inspector
Chhatrapal
Singh. He
is
the
first
investigating Officer of the case. He stated
that on 26.4.2019, he was posted at police
station Linepar as Sub Inspector. On
registration of the case, he recorded the
statement of witnesses including PW-1
(mother of the deceased). PW-9 stated that
PW-1 in her statement recorded under
Section
161
Cr.P.C.
had
expressed
suspicion against the appellant and at her
instance, he inspected the spot. PW-9
proved the site plan as Ext. Ka-12. PW-9
further stated that on 27.4.2019 it was
entered in C.D. Parha No.2 that the
kidnapee's body has been recovered and
identified by her family members; and that
dead body was sent to mortuary for post
mortem. He stated that during investigation
name of the appellant surfaced and
Sections 302, 376 AB IPC 3⁄4 POCSO Act
were added whereafter, the investigation
was conducted by the Station House
Officer.

29. In his cross-examination, PW-9
stated that after lodging the FIR, he went to
the house of informant (PW-1) and had
recorded her statement. PW-1 supported the
FIR and expressed suspicion against the
appellant. Other than the name of the
appellant, PW-1 did not disclose name of
any other person. PW-9 stated that PW-1
had informed him that although nobody
was named in the FIR but she has suspicion
against the appellant. He further stated that
when he went to the house of the appellant
he could not find him. PW-9 admitted that
neither the dead body of the deceased was
recovered by him nor he sent the body for
autopsy. He stated that the body was sent
for post mortem by police of police station
Basai Mohammadpur, Firozabad. PW-9
stated that he received the autopsy report
from police station Basai Mohammadpur,
Firozabad. PW-9 stated that while he
investigated the matter, he could not arrest
the appellant because after addition of
sections 302, 376 AB IPC, investigation
was taken over from him by S.H. O. Sanjay
Singh (PW-11). PW-9 stated that except
expression of suspicion by PW-1 against
the appellant, he could not collect any other
evidence against the appellant. PW-9 stated
that after recovery of dead body, the name
of appellant surfaced in the statement of
witnesses. According to those witnesses,
the appellant had taken away the deceased.

30. Sub Inspector, Sahab Singh is
PW-10. He stated that on 26.4.2019 while
he was posted at Basai Mohammadpur,
Firozabad he received information from
mobile No. 8006288765 at No. 100 that in
village Sofipur, behind the shop of Bara, a
body of a lady is lying in a burnt condition.
After receiving the information, he arrived
at spot along with lady constables and
prepared the inquest report (Ext. Ka-13).
PW-10 produced the clothes of the
deceased in Court, which were made
material Ext. Nos. 15, 16 and 17.

31. During cross-examination PW-10
stated that the dead body was in a
decomposed condition and at the time of
inquest, the identity of the body could not
be fixed. The body was in a red-green
colour kurti, which had yellow prints, and
maroon coloured salwar. PW-10 stated that
he handed over the clothes in a sealed
condition to the police of police station -
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Linepar. He stated that after the inquest
proceeding, he did not carry out any further
investigation of that case.

32. Sub Inspector, Sanjay Singh is
P.W. 11. He is the Second Investigating
Officer of the case. He stated that on
27.4.2019 he prepared parcha No. II A of
the case diary and on 28.4.2019, arrested
the appellant who confessed his guilt and
on his pointing out, from the spot, blood
stained and plain earth was lifted and
recovery memo (Ext. Ka 14) was prepared.
PW-11 produced the blood stained and
plain earth which were made material Ext.
1 to 6. PW-11 stated that he also recovered
slippers of the deceased from the spot and
prepared recovery memo (Ext. Ka-15).
According to PW-11, the slippers were
identified
by
deceased's
father
(not
examined). According to PW-11, from the
spot, four bricks and one blood stained
main brick was recovered of which a
recovery memo Ext. Ka-16 was prepared.
PW-11 produced the bricks as material Ext.
7 to 10 and also produced the main brick
used by the appellant to crush the face of
the deceased, which was marked material
Ext. 11 and 12. PW-11 stated that he
recovered the jeans (pant) of the accusedappellant and prepared its recovery memo
(Ext. Ka-17). PW-11 produced the jeans
(pant) of the appellant as material Ext. 14.
PW-11 proved the arrest memo of the
appellant as Ext. Ka-18. According to PW11, on 29.4.2019 medical examination of
appellant was conducted and his nail
clippings were taken by the doctor. PW-11
stated that on 29.5.2019, he collected the
caste certificate of deceased and added
Section 3(2)(v) of the SC/ST Act thereafter,
further investigation was conducted by
Circle Officer (PW-8) as the deceased
belonged to Bahalia caste, which is one of
the
scheduled
tribes.
On
25.8.2021,
examination-in-chief of PW-11 was again
recorded. He stated that he had prepared
site plan of the place of the incident. The
same was marked Ext. 19. During crossexamination, PW-11 stated that he arrested
the appellant on 28.4.2019 on the basis of
information furnished by the informer. He
stated that at the time of appellant's arrest,
there was no public witness. PW-11 stated
that the place of incident was a secluded
place where new plots were being carved
out. At the spot there was a half constructed
room. Only its wall was there. The place of
incident was about 400 to 500 meters away
from the main road. PW-11 stated that at
the time when the accused had taken him to
the spot, there was no dead body. He denied
the suggestion that the case was not
properly
investigated
and
that
he
deliberately did not rope in independent
witnesses.

33. After the prosecution evidence
was recorded, the trial court recorded
statement of the appellant under Section
313 Cr.P.C. The appellant denied the
incriminating circumstances and stated that
dead body of an unknown lady was
recovered in a decomposed condition;
without identification, inquest report was
prepared; and merely on the basis of
suspicion, he has been made accused.

Defence Evidence

34. After the statement of appellant
was recorded two defence witnesses were
examined, namely:-

35. Seetu is DW-1. He stated that the
appellant is his uncle. On 24.4.2019, there
was a marriage of his sister -Mangla.
Appellant attended the marriage of his
sister from the evening of 24.4.2019 and
was there till 26.4.2019. DW-1 stated that
7 All. Virendra Baghel Vs. State of U.P.
761
attending that marriage, Mannu s/o Sultan,
who happens to be son of his Bua, was also
present. In his cross-examination, DW-1
stated that he resided in District Jalaun
whereas the appellant is resident of District
Firozabad. DW-1 stated that he did not go
to invite the appellant. The invitation was
given by his brother on phone. He admitted
that during the course of marriage video
was prepared and photographs were taken
but there is no photograph of the appellant
with DW-1. He also stated that the
appellant is not his close relative. He
denied the suggestion that his uncle
(appellant) did not attend the marriage of
his sister and his photo is not there in the
video.

36. Mannu is DW-2. He stated that
Seetu (DW-1) is his friend. DW-2 came on
23.04.2019 to attend the marriage of sister
of Seetu (DW-1) there he met the appellant
in the evening of 24.04.2019. DW-2 stated
that he returned from the marriage on
27/28.04.2019. DW-2 stated that he is not
aware as to when appellant returned from
the marriage. During cross-examination,
DW-2 stated that he is not aware as to from
where the Baraat came and when the Baraat
arrived. At that time he was in his house,
having food. He denied the suggestion that
appellant was not present in the marriage.

37. The trial court upon consideration
of the evidence on record found the
appellant guilty of rape and murder of the
deceased and, accordingly, convicted him
under Sections 363, 302, 376 AB, 302 IPC
read with Sections 3(2)(v) SC/ST Act and
awarded death penalty under Sections 302,
376 AB IPC read with Section 3(2)(v)
SC/ST Act.

38. We have heard Sri Dilip Kumar,
learned Senior Counsel, assisted by Sri
Rizwan Ahmad for the appellant; and Sri
Amit Sinha, learned AGA for the State and
have perused the record.

Trial Court Findings

39. Trial court found following
incriminating circumstances proved:-

(i) The deceased was last seen alive
in the company of the appellant on
25.04.2019, firstly, at about 11.00 am near the
railway crossing by PW-2 and, secondly, at
about 11.30 am near SBI Ram Nagar by PW-4
and, thereafter, she was not seen alive;

(ii) Body of the deceased was
recovered on 26.04.2019. The autopsy
conducted on 27.04.2019 and the serologist
report disclosed that she was raped and
murdered two days before;

(iii) On the disclosure made by the
appellant on 28.04.2019 blood stained brick
and slippers of the deceased was recovered;

(iv) At the time of arrest on
28.04.2019, the Jeans (Pant) worn by the
appellant carried blood stain; and

(v) The serologist report confirmed
presence of human blood on the brick
recovered at the instance of the appellant as
also on the Jeans (pant) and nail clippings of
the appellant.

40. Trial court found that the proven
circumstances constituted a chain so
complete that it conclusively pointed
towards the guilt of the appellant and as the
appellant failed to discharge the burden
placed upon him under Section 106 of the
Evidence Act to explain as to why he
should not be held guilty, convicted the
appellant and sentenced him accordingly as
already noticed above.

Submission of behalf of the appellant
762 INDIAN LAW REPORTS ALLAHABAD SERIES

41. Learned counsel for the appellant
submitted that there is no admissible
evidence on record against the appellant
and trial court failed to appropriately
appreciate the evidence on record and
wrongly convicted the appellant in the
present case. Learned counsel for the
appellant submitted that perusal of the FIR
(Ext. ka 2) shows that it was lodged against
unknown person but the informant (PW-1),
who lodged the FIR, in her testimony stated
that she had named the appellant. This
shows that prosecution did not come with
clean hands and have contrived the story on
suspicion/guess work. He submitted that as
per the informant (PW-1), after the FIR, the
appellant
was
apprehended
by
the
informant (PW-1) and others and was
handed over to the police and, therefore,
the prosecution story that the appellant was
arrested by the police on 28.4.2019 on the
information of an informer, appears false
and as arrest of the appellant become
doubtful, the alleged recoveries at the
instance of the appellant would neither be
admissible nor can be used against the
appellant. Learned counsel for the appellant
further submitted that the evidence of PW-2
and PW-4 in respect of the circumstances
of last seen is neither reliable nor
conclusive. Further, even if it is accepted
then too, merely on the basis of the
evidence of last seen, appellant cannot be
convicted as the time gap between the
appellant last seen alive with deceased and
the recovery of dead body is very large.
Moreover, the prosecution has failed to
show that the place where the deceased was
last seen alive with the appellant was in
close proximity to the place from where her
body was recovered. He further submitted
that the name of the appellant surfaced on
the basis of information given by PW-2 but,
according to PW-2, she had given that
information on the very first day yet, the
appellant was not named in the FIR, which
was lodged on 26.04.2019. This casts a pale
of doubt on the testimony of PW-2 that she
saw the appellant with the deceased on
25.04.2019 at about 11.00 am. Learned
counsel for the appellant submitted that
though the serological report mention that
human blood was found on the jeans (pant)
of the appellant but the recovery memo
(Ext. Ka-17) of the pant does not mention
blood stain on the pant, therefore, it
appears, after recovery of the pant, false
evidence was created by the police.
Moreover, the blood group was not
matched with the deceased. Hence, it
cannot be said with certaintly that the blood
found on the pant of the appellant was of
the deceased. He also submitted that the
dead body of the deceased was found in
village Sofipur, behind the shop of
Barashree, within the jurisdiction of police
station Basi Mohammad Pur whereas,
according to the prosecution, the place of
incident was a half constructed room. This
place is totally different from the place
from where the dead body was found.
Thus, the alleged disclosure statement
becomes totally doubtful because if the
appellant, after committing rape and
murder, covered the body in a half
constructed room with bricks how the same
was recovered from some other place.
Therefore, the prosecution story appears
false and no reliance can be placed on it.
Learned counsel for the appellant also
submitted that according to Jitendra (PW6), one of the witnesses of the inquest
report, the dead body was lying in an open
field. If it was so, then the alleged hiding of
the body in a half constructed room and
recovery of bricks therefrom, allegedly on
the basis of disclosure, falls to the ground.
It was urged that the trial court failed to
consider this important aspect of the case
and
without
properly
evaluating
the
7 All. Virendra Baghel Vs. State of U.P.
763
evidence related to recovery and last seen
convicted
the
appellant
and
thereby
committed a grave mistake. Learned
counsel for the appellant submitted that the
present
case
is
a
case
based
on
circumstantial evidence; the prosecution
miserably failed to prove the incriminating
circumstances beyond reasonable doubt
and the chain of circumstances was not
complete and, therefore, conviction and
sentence recorded by court below is liable
to be set aside. In the alternative, learned
counsel for the appellant submitted that as
the
present
case
totally
rests
upon
circumstantial
evidence,
reference
to
confirm death penalty should be negatived.

Submission on behalf of the State

42. Per contra, learned AGA
submitted that there is evidence on record
which proves that the appellant was last
seen along with the deceased and on the
same day, deceased was murdered; that
apart from last seen evidence, on the
pointing out of the appellant blood
stained bricks were recovered and as per
the forensic lab report, on the bricks
human blood was found. As per evidence
of autopsy surgeon, the vagina was found
ruptured, therefore, it is apparent that
before murder the girl was raped. Learned
AGA submitted that forensic lab report
confirmed that on the Jeans (pant) of the
accused-appellant there was human blood
and in nail clipping of the appellant,
blood
was
found,
which
is
a
corroborative
piece
of
evidence
confirming
the
involvement
of
the
appellant in the rape and murder of the
deceased. Learned AGA further submitted
that the prosecution has successfully
proved the chain of circumstances and the
trial court rightly convicted the appellant.
On the question of sentence, learned
counsel for the state submitted that since
it is a case of rape of a minor girl and,
thereafter, the girl was brutally murdered,
death sentence awarded to the appellant is
justified and, therefore, the appeal is
liable to be dismissed and death penalty
awarded by the trial court should be
confirmed.

Analysis

43. The instant case is based on
circumstantial evidence. There is no eye
witness account of either rape or murder. As
to when conviction can be recorded on
evidence of a circumstantial nature, the law is
settled. In a recent decision in the case of
Anwar Ali Vs.