Ramesh Sinha, J.—The present appeal has been preferred by the appellant against the judgment and order dated 29.6.2013 passed by Additional District Judge-V, Barabanki in S.T. No. 492 of 2012 convicting and sentencing the appellant under section 376 (2) (F) I.P.C. with imprisonment for life and Rs. 5,000/- fine and under section 201 I.P.C. 5 years imprisonment and Rs. 3,000/- fine, and under section 302 I.P.C. imprisonment of death (hanged to death).
2. The prosecution case in brief is that a written report was given by the informant Rajesh Kumar Yadav son of Sant Saran Yadav resident of Gram Maujabad, Majre Shahpur, police station Deva, District Barabanki on 8.4.2012 stating that on 7.4.2012 there was a Mundan ceremony of his youngest daughter Laxmi in which many relatives were present. His daughter, namely, Baby @ Devika at about 10 p.m. went to his father''s cot for sleeping. The informant and his other family members were busy in entertaining the guests. After completion of said ceremony when all the relatives gone, the informant along with his family members slept in the Pundal itself where the said ceremony was held. On 8.4.2012 after waking up when his daughter was not seen, he along with his family members starting searching her. At about 5 p.m. his son while searching her reached at the wheat field of Qamaruddin Halwai where he saw his daughter lying in a dead condition. On receiving the information, the informant reached at the spot and saw his daughter in a dead condition. On her person, he saw injuries including abrasion on private parts of body from which it was clear that his daughter was murdered, hence leaving the dead body on the spot, he informed the concerned police station for necessary action.
3. On the basis of written information Ex. Ka-1, an F.I.R. was registered as case crime no. 87 of 2012 under section 302, 201 I.P.C. against unknown person on which investigation started. On 9.4.2012, the informant Rajesh Kumar Yadav had given further an information at police station Kotwali Deva that he had lodged an F.I.R. for the murder of his daughter on 8.4.2012 and on 9.4.2012 after post mortem of the deceased was conducted and the last rites of the deceased was performed his relatives and other villagers had gathered on which one Vinod son of Garibe Prasad and Shrawan son of Nageshar resident of Gram Mohnapur, police station Jaidpur, District Barabanki, who on 7.4.2012 had come in the Mundan ceremony of his daughter and was present at night informed the informant that on 7.4.2012 at about 11 p.m. when they were coming to his house from the side of school then they saw Ranjeet son of Ram Aadhar of the village taking a girl but at that moment they could not know that it was the daughter of the informant, namely, Baby @ Devika. The informant had earlier some suspicion about the involvement of accused Ranjeet. The Dog Squad of the police had also visited the house of Ranjeet, who taking advantage of the situation had committed rape and murder of his daughter and further he made request that the said information may be also taken into account and be made part of investigation. The information given by the informant which was registered as case crime no. 87 of 2012 under section 302, 201 I.P.C., the investigation was conducted.
4. On completion of investigation charge-sheet was submitted against the accused appellant before the competent court. On 17.7.2012, the trial court framed charges against the appellant under section 376, 302, 201 I.P.C. The accused denied the charges and claimed trial.
5. The prosecution in support of its case has examined P.W. 1 Rajesh Kumar Yadav, P.W. 2 Vinod, P.W. 3 Constable Anil Kumar Singh, P.W. 4 Head Constable Praveen Kumar Singh, P.W. 5 Dr. Brijesh Kumar Srivastava, P.W. 6 Constable Nandlal Yadav, P.W. 7 Constable Lallu Singh, P.W. 8 Dr. Mohammad Azam Hanfi, P.W. 9 S.I. Pramod Kumar Singh, P.W. 10 S.I. Jitendra Giri, P.W. 11 Constable Moharrir Anil Kumar.
6. The documentary evidence which have been produced by the prosecution are written report of the informant dated 8.4.2012 marked as Ex. Ka.-1, application of the informant dated 9.4.2012 marked as Ex. Ka.-2., Chik F.I.R. marked as Ex. Ka.-3, carbon copy of G.D. marked as Ex. Ka.-4, injury report of accused Ranjeet marked as Ex. Ka.-5, Docket marked as Ex. Ka.-6, post mortem report of the deceased marked as Ex. Ka.-7, charge-sheet marked as Ex. Ka.-8, Panchayatnama marked as Ex. Ka.-9, Photonash marked as Ex. Ka.-10, Challan Nash marked as Ex. Ka.-11, letter of Medical Superintendent marked as Ex. Ka.-12, letter of Pratisar Nirikshik marked as Ex. Ka.-13, specimen seal of deceased Km. Baby marked as Ex. Ka.-14, Naksha Nazri, Gram Maujabad marked as Ex. Ka.-115, recovery of blood stained and plain earth marked as Ex. Ka.-16, underwear of the deceased marked as Ex. Ka.-17, empty bottle of liquor marked as Ex. Ka.-18, spot inspection marked as Ex. Ka.-19 and other material exhibits.
7. The statement of the accused-appellant was recorded under section 313 Cr.P.C. in which he denied the prosecution case and stated that the case against him has been instituted because of the enmity. He has stated that he was taken from his house on 8.4.2012 by the police, who tortured him and caused injuries on his private part. Thereafter he was challaned showing his false arrest on 10.4.2012 though his arrest was shown in the G.D. on 9.4.2012. The scribe of the second F.I.R., namely, Prem Sukh Yadav, who is the uncle of the informant and a Government Ameen, was having some dispute with the accused-appellant and his family members earlier to the incident regarding ''Medh'' of the field and crop of mustard, hence he bore enmity with him.
8. P.W. 1, Rajesh Kumar Yadav was examined by the trial court and in his statement he has deposed that on 7.4.2012 there was a Mundan ceremony of his youngest daughter Laxmi aged about one year in which many relatives and villagers were gathered. In the said ceremony arrangement of food for the guests and religious songs were made. His daughter, namely, Baby @ Devika at about 10 p.m. went to his father''s cot for sleeping as she used to sleep with his father. The informant and his other family members were busy in entertaining the guests. After completion of said ceremony when all the relatives gone, the informant along with his family members slept in the Pundal itself where the said ceremony was held. On 8.4.2012 after waking up when his daughter was not seen, he along with his family members and some relatives, who stayed at night starting searching her. At about 5 p.m. his son while searching the sister reached at the wheat field of Qamaruddin Halwai where he saw his daughter lying in a dead condition. On receiving the information, the informant reached at the spot and saw his daughter in a dead condition. On her person, he saw injuries including abrasion on several parts of body on which apprehending that his daughter was murdered, he got a report written by one Dinesh Chandra Yadav of his village. He stated that what he dictated to Dinesh he wrote and after writing he read the same before him then he made signature on it. The said report is on record as Ex. Ka. 1. He has given the said written report in the concerned police station on the basis of which F.I.R. was lodged. Thereafter the police arrived at the spot and recorded his statement. The dead body of the deceased was lying in the field of the Qamaruddin where the underwear of the deceased and empty bottle of country made liquor were also lying, the police took possession of the same. On 9.4.2012, the post mortem of the deceased was conducted and thereafter the dead body of the deceased was handed over to him. The last rites of the deceased was performed in the presence of his relatives and villagers. He stated that Vinod and Shrawan, who came to participate in the funeral has told him before all the relatives and villagers that on 7.4.2012 at 11 p.m. when they were coming to his house to participate in the Mundan ceremony of his daughter Laxmi from the side of school, they saw accused Ranjeet was taking a girl but they could not presumed that it was the daughter of the informant, namely, Baby and for what purpose she was being taken away. He had strong suspect about the involvement of the accused Ranjeet in the crime as he was of bad character. After the incident, the Dog Squad of the police went to the house of accused Ranjeet twice. He states that the accused appellant, who is present in the Court had committed rape and murder of his daughter. He also stated that he had given an application at the concerned police station which was written by one Prem Sukh Yadav and signed by him which is on record as Ex. Ka. 2. In his cross examination, he has stated that the dead body of his daughter was lying at the Southern side of the field where the crops were found to be damaged. There were abrasion found on the person of the deceased and from her private part blood was coming out and her underwear was lying separately where empty bottle of liquor was also lying. He stated that the Dog Squad when reached the house of the accused-appellant had started barking on which the police personnel got opened the door of the house of accused-appellant and apprehended him and took him to the police station. The said incident had taken place between 11-12 p.m. on 8.4.2012. He stated that Prem Sukh was of his village and his uncle. He stated that the report which he got written by Prem Sukh was not at the dictation of police and he has lodged the same on his own.
9. P.W. 2 Vinod, who is the real brother-in-law of the informant and maternal uncle of the deceased had deposed that his sister is married with P.W. 1 Rajesh Kumar Yadav, who has seven children and the eldest one is son. The deceased Baby was aged about 4 years and the youngest one is Laxmi, aged about one year whose Mundan ceremony was held on 7.4.2012 that he along with other family members and relatives had come to participate at the house of his sister at village Maujabad in the night at abut 9-10 p.m. After having the dinner, he along with his cousin Shrawan went towards Gwari Chauraha situated at Chinhat and Lucknow Road for having Gutkha. At about 11 p.m. in the night while they were returning from the side of school, they saw accused-appellant, who is present in the Court, carrying a girl on his shoulder and going towards the agricultural field. The accused Ranjeet Yadav was known to them prior to the incident as he used to come at his sister''s house frequently. Ranjeet was also invited in the function where he met him. He stated that he along with Shrawan had returned to his village Mohnapur in the night of 7.4.2012 itself. On 9.4.2012 at about 12 p.m. in the afternoon, he again came to his sister house. After performing the last rites of the deceased, when they gathered at the evening he told his brother-in-law whatever he saw on 7.4.2012 regarding the accused-appellant. He has strong suspicion that accused-appellant has murdered the deceased after committing rape on her. On receiving the said information, his brother-in-law had gone to the police station and thereafter, the police arrived. The police has interrogated him along with Shrawan and in their statement they told the police whatever they saw.
10. P.W. 3 Constable Anil Kumar Singh in his statement has stated that on 8.4.2012, he was posted at police Lines Lucknow and is a member of Dog Squad. On the said date he has received an information from the Control Room to report at police station Deva, District Barabanki. On which, he along with Constable Handler Sriram Yadav had gone to the said police station in a jeep driven by Ram Bhawan Singh along with Dog Squad from where he reached at the place of occurrence where the high officials of the police were present. On the spot the crop of wheat damaged and empty bottle of country made liquor was lying. On smelling the empty bottle of country made liquor and smell of foot prints of the accused, the dog went from the field for about 200-300 meters through the house of the deceased where she was sleeping reached at the house of the accused-appellant and after roaming around the said house stopped there. Thereafter, the police surrounded the said house and on search of the said house one person tried to flee away from the house on which the police apprehended him. The said witness in his cross examination had further stated regarding the capability of the dog with respect to smelling strength is maximum period is 24 hours.
11. P.W. 4 Praveen Kumar Singh has stated that on 8.4.2012 he was posted as Head Constable and on the said date a written report was given by the informant, who was accompanied Manoj Yadav and Dinesh Yadav on the basis of which Chik No. 31 of 2012 and Case crime no. 87 of 2012 under section 302, 201 I.P.C. was lodged against unknown person. He proved the chik F.I.R. in his writing and signature. He has further stated that he has endorsed the said F.I.R. in G.D. No. 29 at 7:45 p.m., carbon copy of which is also on record which was also compared with original. He has proved the chik F.I.R. as Ex. Ka. 3 and G.D. as Ex. Ka 4. He further stated that he had given the information about the registration of the case to the higher officials on the R.T. set and telephone.
12. P.W. 5 Dr. Brijesh Kumar Srivastava, who was examined before the trial court has stated that he was posted as Medical Officer at District Hospital Barabanki on 10.4.2012 on which date he has examined accused Ranjeet Singh. He stated that he was also a member of Medical Board consisting of Dr. V.H. Gupta Emergency Medical Officer, Dr. I.K. Ram Chandani Senior Consulting Physician. He was the Chairman of the said Board and in his presence and supervision the medical examination of accused Ranjeet was done at 3 p.m. which is as follows:-
"Dr. V.H. Gupta, examined Ranjeet aged about 20 years Male S/o Ram Adhar, R/o vill-Mauzabad H/o Shahpur, P.S. Dew Distt. BBK. At Emergency Deptt. Distt. Hospital Barabanki on 10.4.2012 at 01.15 P.m., whose medico-legal Examination was done on 10.04.12 at 3.00 Am. At PHC Dewa Distt. BBK.
B/B: CP. 163, Shankar Lal, Ps. Kowali Dewa, BBK.
MI: Black mole over Rt. Side of face, 4.0 cm. Lateral to nose.
Examination of Accused:-
1. Age about 20 years.
2. General built average built body.
3. Height 163.0 cm.
4. Wt. 55 kg.
5. Stains of semen present on the underwear (infront) which is being sealed and handed over to CP. concerned for further investigation.
Examination of Sex Organ:-
Prepuce-Normal
Blance-Cluish coloured mild swelling present all over the glans.
Frenulum-Normal
Pubic hair shaved and sealed and handed over to CP. concerned for further investigation.
Part of all nails are cut and sealed and handed over to CP. concerned.
Opinion:- Injury KUO. Caused by friction.
Duration:- about two to four days."
13. He has proved the medical report of accused Ranjeet as Ex. Ka.-5. The injuries found on the penis of the accused appellant was possible in an incident which had taken place on 7.4.2012 in between 10-11 p.m. It was stated that the said injury can be caused to the accused if he had committed rape on any minor girl. He has further proved the writing and signature of Panel of doctors, i.e., Dr. V.H. Gupta and Dr. I.K. Ramchandani, who were working with him. In his cross examination he has stated that the first medical examination which was conducted of accused Ranjeet at Deva, the doctor has mentioned healed linear abrasion.
14. P.W. 6 Constable Nand Lal Yadav has stated before the trial court that on 8.4.2012, he was posted as constable at police station Deva, District Barabanki and after the inquest of the deceased was conducted her dead body was handed over to him on 9.4.2012 at 8 am along with other police papers for taking the dead body to the mortuary for post-mortem. On 9.4.2012 he had handed over the dead body of the deceased to the official concerned for post-mortem and so long as the dead body was in his custody along with constable Shanker Lal, he had not allowed any person to temper with it. After the post-mortem was conducted, the dead body of the deceased was handed over to her father and submitted the post-mortem report along with other police papers in the concerned police station and copy of the post-mortem report was got received by him in the S.P. Office, Barabanki.
15. P.W. 7 Constable Lallan Singh has stated that on 17.4.2012 he was posted at police station Deva, District Barabanki. On the said date he has received the case property at the police station in a sealed condition and thereafter he produced the same in the Court of C.J.M. at the docket in a sealed condition on which the C.J.M. put his signature. He further took two copies of the docket of the case property from the Court of C.J.M. and on 30.4.2012 he handed over the same to Forensic Science Laboratory for its examination and thereafter brought one of the docket and submitted the same in the Malkhana of concerned police station and he has proved his signature on the same.
16. P.W. 8, Dr. Mohammad Azam Hanfi has stated that he was posted as Medical Officer on 9.4.2012 at the District Hospital Barabanki. He has conducted the post mortem of the deceased Km. Baby aged about 4 years, who was brought in a sealed condition by S.H.O. Deva Kotwali, Barabanki along with police papers and constable Nand Lal Yadav and Shanker Lal, who had identified the same. On the dead body of the deceased following ante-mortem injuries were found on her person:-
"Ante mortem injuries
1. Multiple abrasion on nexk anterialy & laterally illegible (Limbs) clavicle each about min. size 1 cm. X 4.5 cm. & max size 3 cm. x 1 cm. Present in mid line. On cutting (Illegible) ecchymosed congested.
2. (illegible) abrasion on both lower limb below knee joint anteriorly.
3. (illegible) abrasion (illegible) cut over anteriorly both upper limb. Below elbow.
4. Both labera major showing superfacial linner abrasion brownish cut end. Extending for (illegible) size (7 cm. x 0.5 cm.)
5. Lateral majora showing gaping and ecchymosed."
6. Hymen lacerated & ecchymosed.
7. Vaginal orifice admitting two fingers easily margins torn & ecchymosed. Vaginal (iilgible) taken & sent for exami.
17. As per the opinion of the doctor the cause of death of the deceased is asphyxia as a result of ante mortem strangulation. He found that injury nos. 1, 2, 3 and thyroid cartilage bone was fractured which was sufficient to cause death. He further stated that death would have occurred between 7.4.2012 to 8.4.2012.
18. P.W. 9 Pramod Kumar In-charge Inspector has stated that he was entrusted the investigation of the case by the earlier I.O. Jitendra Giri-P.W. 10, who was transferred. He recorded the statement of Constable Anil Kumar Singh-Dog Handler and Constable Sri Ram Yadav and thereafter submitted charge-sheet against the accused on 2.5.2012 and proved the same as Ex. Ka. 8.
19. P.W. 10 Jitendra Kumar Giri, who was posted as Inspector at police station Deva on 8.4.2012 has stated that the F.I.R. of the present case was lodged on 8.4.2012 and in his presence the case was registered on which he started investigation and got the inquest of the deceased done by S.S.I. Vijay Singh. He has proved the inquest report, photonash, Challan, letter to C.M.O. and R.I. and further stated that he has handed over the dead body of the deceased after inquest for post mortem with police papers to Constable Shanker. He recorded the statement of the informant Rajesh Kumar on the same day on the orders of higher officials. He has called the Dog Squad information of which he has endorsed in the case dairy. He states that the Dog reached at the house of accused Ranjeet smelling from where the dead body of the deceased was lying on the pointing out of the informant on 9.4.2012. He had prepared the site plan of the place of occurrence. He has also recovered from the place of occurrence underwear of the deceased and sealed the same. He has also recovered one empty bottle of country made liquor in which Miss Jalwa was written and he sealed the same in the presence of witnesses. He has also mentioned in the case dairy about the second information given by the informant on which Section 376 I.P.C. was added. On 10.4.2012, he arrested the accused and recorded his statement, who confessed his guilt.
20. P.W. 11 Constable Anil Kumar has stated that he was posted on 9.4.2012 at the concerned police station and on an application given by the informant, he added Section 376 I.P.C. in the F.I.R. which was registered as Case Crime No. 87 of 2012 under section 302, 201 I.P.C. and also endorsed the same in the G.D. and proved the same as Ex. Ka. 20.
21. Heard Sri Gopal Krishna Pathak, learned counsel for the appellant, Sri U.C. Verma, learned A.G.A. for the State and perused the record.
22. Learned counsel for the appellant argued that the F.I.R. of the present case was lodged against unknown persons by P.W. 1. Initially the F.I.R. was registered under section 302, 201 I.P.C. on 8.4.2012 at 7:45 p.m. whereas the incident has taken place on 7.4.2012 and on 9.4.2012 another F.I.R. was lodged giving reference to the earlier F.I.R. by which Section 376 I.P.C. was added in the present case and the scribe of the written report was one Prem Sukh Yadav, who was the real uncle of the complainant P.W. 1, who was inimical to the appellant. He submitted that the finding recorded by the trial court in this respect that the two information given do not make the prosecution case doubtful appears to be not correct as the trial court has failed to appreciate the fact that the witness of last seen were not reliable at all and further the case laws which have been cited on behalf of the appellant were held to be not applicable in the facts and circumstances of the instant case. He further urged that the finding of the trial court regarding the arrest of the accused also appears to be not correct as the arrest of the accused justifying the possibility of manipulations in the prosecution case after taking him into custody on 8.4.2012 in the night but the police has shown his arrest on 10.4.2012 which also shows his false implication in the case as is apparent from the evidence of P.W. 10 Jitendra Giri. It was next submitted that the Dog Handler P.W. Constable Anil Kumar Singh has submitted before the trial court in his evidence that the sniffer Dog did not take any smell of the house of the accused and also not of accused but the trial court then too has believed its evidence and convicted the appellant. He further argued that the learned trial court brushed aside the inimical relationship of the accused with the uncle of complainant, namely, Prem Sukh Yadav with whom altercation took place between him and family members of the accused and also the case laws which cited in this regard was held to be not applicable in the present case. He submitted that there was no motive on the part of the accused appellant to commit the crime but the trial court took the motive as suggested by the prosecution with accused on imaginary and flimsy ground. He submitted that the inquest report, medical report, post mortem report and the report of the laboratory also makes the prosecution case doubtful and any such doubt based on the circumstantial evidence does not call for any conviction and sentence to an accused. He further submitted that the evidence led by the prosecution of P.W. 1 and 2, who are highly interested and partisan witnesses and no independent witness has come to support the prosecution, therefore, the conviction and sentence of the appellant be set aside. He next argued that it is highly improbable that the deceased, who was a minor girl aged about 4 years used to sleep with her grand father but no explanation as to this effect that at 10:00 p.m. she can alone go to sleep at the cot of her grandfather and the grand father has not been produced before the trial court. He further submitted that non examination of witness of last seen Shrawan, who was said to be accompanying P.W. 2 Vinod would have been most reliable as he was not related to the complainant and the prosecution with holding the said witness also creates doubt about the prosecution case and the conviction of the appellant only on the basis of evidence of P.W. 1 and 2 does not appear to be proper, hence the conviction and sentence by the appellant is liable to be quashed. Thus the argument of learned counsel for the appellant in short is that the case rests on circumstantial evidence there is no direct evidence against the appellant only on the basis of last seen evidence and injuries found on the private part of the appellant, he was convicted and sentenced. Moreover, the witnesses are highly interested and partisan witnesses and their evidence is at the instance of Prem Sukh Yadav, who is the real uncle of the complainant and the evidence of his arrest on the basis of sniffer Dog does not led a complete chain of circumstances to prove the guilt of the accused and his conviction and sentence by the trial court for death sentence is liable to be set aside. In support of his argument he has placed reliance on the judgment of the Apex Court in the case of Sahdev v. State of Karnataka, reported in 2012 (6) SCC 403 and drawn the attention of the Court towards paras-13, 28, 34 of the said judgment, 2013 (81) SCC 166, Baldev and another v. State of U.P. and drawn the attention of the Court towards paras-11, 21 and 22, 2013 (81) ACC 442, Rishi Pal v. State of Uttrakhand and drawn the attention of the Court towards paras-15, 16, 18, 19, 20, 2013 (82) ACC 102 ,Chhotu @ Ajay v. State of U.P. and drawn the attention of the Court towards paras- 7, 13, 17-21, 23-25 and 27, 2014 (85) ACC 932, Dhan Raj @ Dhand v. State of Haryana and drawn the attention of the Court towards paras- 14 -18, 2012 (77) ACC 251 Sampath Kumar v. Inspector of Police, Krishnagiriand drawn the attention of the Court towards paras 10 to 16, 2014 (86) ACC 31, Manish v. State of U.P. and drawn the attention of the Court towards paras-23- 25 and 35 & 36, 2013 (82) ACC 431, Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan and drawn the attention of the Court towards paras 17 to 27 and 30, 32, 34, 36, 38 to 40.
23. He lastly argued that the conviction of the appellant under section 302 I.P.C. for imprisonment of death does not fall within the category of rarest of rare case, hence the same should be set aside and the reference to made by the trial court to that count should also be rejected and the sentence under Section 302 I.P.C. may be converted for imprisonment of life.
24. Per contra learned A.G.A. vehemently opposed the arguments of learned counsel for the appellant and justified the judgment and order of the trial court convicting and sentencing the appellant. He submitted that the deceased, who was a minor girl aged about 4 four years was taken away by the accused appellant from her house where ''Mundan'' ceremony of her younger sister was going on and many relatives and others persons of the village including the accused appellant was invited as all family members of the deceased were engaged in looking after the guests invited in the said ceremony the accused taking advantage of the said ceremony took the deceased to a lonely place in the night and committed rape on her and thereafter strangulated her to death. He argued that the place from where the dead body of the deceased was recovered, i.e., the field of Qamaruddin where the underwear of the deceased was lying and empty bottle of country made liquor was recovered. The brother of the deceased, who saw the dead body of the deceased immediately informed his father P.W. 1, who along with other persons reached there as they were searching the deceased when she was not traceable in the morning on 8.4.2012. He immediately lodged the F.I.R. suspecting the murder of his daughter by some miscreants at the concerned police station on 8.4.2012 after the recovery of the dead body. He further pointed out that another application was given by the father of the deceased on 9.4.2012 giving reference to the earlier F.I.R. as he suspected that her daughter was subjected to rape also on the basis of which Section 376 I.P.C. was added in the present case. It was submitted by the learned A.G.A. that as the F.I.R. was lodged against unknown persons and after registration of the case, the police in order to arrest the culprit of the crime had taken the help of sniffer dog which was called at the instructions of higher authorities, who also arrived at the place where the dead body of the deceased was lying and the dog had travelled from there and reached to the house of the accused smelling underwear of the deceased and empty bottle of liquor lying at the place of occurrence and started barking and when the police got opened the door of the said house, the accused tried to flee away from the house and was arrested on 8.4.2012 by the police. He next submitted that as per the statement of P.W. 1, the informant and father of the deceased along with the statement of P.W. 2 Vinod recorded by the trial court, who was though related to P.W. 1 as he was his brother-in-law was also invited in the said ceremony had seen the accused carrying a child on his shoulder in the night but the said witness was not aware of the fact that it was the deceased and when he came to know that the deceased was untraceable and her dead body was recovered from the field of Qamaruddin, he also reached there and after cremation of the dead body of the deceased, he informed about the said fact to P.W. 1 along with one Shrawan had also seen that the accused was carrying the deceased. He argued that as per the medical evidence, the deceased has suffered injuries on her private part and blood was oozing out from the same. Moreover, the injuries were also found on the private part of the accused-appellant, i.e., on his penis which shows strong circumstance of his participation in the present crime though it has been alleged by learned counsel for the appellant that the said injuries was caused to the appellant by the police just to show the good work and solve the present case. He argued that though the case rests on circumstantial evidence but taking into account the evidence on record which shows that the chain of circumstances which have been brought on record bring out the guilt of the accused-appellant and the finding recorded by the trial court in convicting and sentencing the accused-appellant on the basis of evidence on record is perfectly right and the appeal be dismissed by this Court. In support of his contention, he has placed reliance on the judgment of the Apex Court in the case of State of Maharashtra v. Suresh, reported in 2000 SCC (Cri.) 263, Lalit Kumar Yadav @ Kurri v. State of U.P., reported in 2014 Crl. Law Journal 2712 SC and drawn the attention of the Court towards para-34 of the said judgment, in the case of Darga Ram @ Gunga v. State of Rajasthan, reported in 2015 Crl. Law Journal 1403 (SC) and drawn the attention of the Court towards paras-10 and 11.
25. Considered the rival submissions of learned counsel for the parties and perused the record.
26. From the prosecution case it is apparent that the deceased, who was a minor girl aged about 4 years was the daughter of P.W. 1 Rajesh Kumar Yadav. On 7.4.2012, a ''Mundan'' ceremony was organised by P.W. 1 at his house where the relative and other persons of the village were invited along with the accused-appellant, who also belong to the same village. The family members of the deceased including P.W. 1 were busy in taking care of the guests, who were invited in the said ceremony in offering food etc. to them. The accused-appellant, who was also invited in the said ceremony taking advantage of the ceremony took away the deceased from her house and carried her to a lonely place in the village and committed rape on her after consuming liquor as empty bottle of liquor was found by the police at the place where the dead body of the deceased was recovered.
27. When, P.W. 1, the informant, who is the father of the deceased and other family members did not found the deceased in the morning on 8.4.2012 at the place where she used to sleep with her grand father then a search was made in the house and nearby places and ultimately when the brother of the deceased, who was tracing her reached at the field of Qamaruddin found the dead body of the deceased lying there. He immediately informed about the recovery of the dead body of the deceased to his father, who reached there along with his family members and other persons of the village and immediately lodged an F.I.R. of the incident for the murder of his daughter at the concerned police station. After post mortem, the dead body of the deceased was handed over to P.W. 1, who performed her last rites and in the evening when all the relatives had gathered, P.W. 2 Vinod and one Sharawan informed P.W. 1 that in the night when they were returning back to his house after taking Gutkha, they saw the accused carrying a child on his shoulder. They at that time did not suspect that it was the deceased and after recovery of the dead body on 8.4.2012 in the evening and coming to know about the incident then suspected that it was the accused-appellant, who had taken the deceased from her house in the night and committed rape and murder of her. Thereafter on 9.4.2012 another application was given by the informant-P.W. 1 giving reference to the earlier F.I.R. lodged by him suspecting the involvement of the accused-appellant on the basis of which offence under section 376 I.P.C. was added. The investigating officer after investigation submitted charge-sheet against the accused-appellant and charges were framed by the trial court against him on 17.7.2012 under section 302, 201, 376 I.P.C. The appellant was put to trial and was convicted by the trial court for the offence in question against which present appeal has been preferred by him before this Court.
28. The argument which has been advanced by learned counsel for the appellant that the case rests on circumstantial evidence and there is no direct evidence against the appellant and only on the basis of suspicion and evidence of last seen and some injuries found on his private part which was cause to him by the police to work out the case and further the evidence of P.W. Nos. 1 and 2 suffers several discrepancies and contradictions, his conviction and sentence by the trial court is against the evidence on record, hence the same be set aside by this Court cannot be accepted.
29. From the evidence which have been collected by the investigating agencies and produced before the trial court which after examining the prosecution witnesses and other formal witnesses and the recovery which have been made has come to the conclusion that it was the accused-appellant, who has committed the crime and on the basis of evidence led by prosecution convicted the accused-appellant. So far as the cases which have been cited by learned counsel for the appellant in which the Apex Court has held that in a case of circumstantial evidence, the Court must considered the same in the light of settled legal proposition. The inference is drawn from the aspect of the case lodged. The Court has to consider whether the chain of circumstances is complete.
30. In our considered opinion, the said legal proposition as has been laid down by the Apex Court in its catina of decisions is not at all disputed. So far as the instant case is concerned the following chain of circumstances which has been brought by the prosecution to prove the guilt of the accused are as follows:-
1. Recovery of dead body of the deceased from the field of Qamaruddin and her blood stained frock which she was wearing at the time of incident.
2. Recovery of blood stained earth from the place where the dead body of the deceased was recovered.
3. The report of Forensic Science Laboratory U.P. Lucknow dated 1.12.2012 which found blood on the frock of deceased and on the soil recovered from the place of occurrence.
4. Recovery of empty bottle of liquor of brand ''Miss Jalwa'' and underwear of the deceased near the dead body.
5. Evidence of sniffer dog.
6. The medical examination of accused-appellant conducted on 10.4.2012 at 1:15 p.m. at P.H.C. Deva, District Barabanki marked as Ex. Ka. 5.
7. The evidence of P.W. 1 Rajesh Kumar Yadav informant of the case and father of the deceased.
8. Further the evidence of P.W. 2 Vinod the maternal uncle of the deceased, who is witness of last seen.
9. The evidence of P.W. 5 Dr. Brijesh Kumar Srivastava, under whose supervision the Medical Board examined the accused-appellant, who found injuries on his penis.
10. The evidence of P.W. 8 Dr. Mohammad Azam Hanfi, who conducted the post mortem of the deceased and found as many as seven ante mortem injuries on her person including on private part and cause of death is his opinion is asphyxia as a result of strangulation.
31. From the evidence of P.W. 1 Rajesh Kumar Yadav, it is an admitted fact that a ''Mundan'' ceremony was organised by him of his younger daughter, who is aged about one year on 7.4.2012 and in the night several relatives and guests were invited. P.W. 2 Vinod, who was the maternal uncle of the deceased was also invited it has also come in the evidence that the accused-appellant was also invited in the said ceremony. The accused-appellant took the deceased from his house to a lonely place taking advantage of the said situation and committed rape on her. As per the post mortem report of the deceased several injuries were found on her person including her private part. The cause of death is asphyxia as a result of strangulation. The accused-appellant was apprehended from his house taking assistance of sniffer dog by the police and challaned on 10.4.2012 after finding evidence against him. Moreover, the injuries which has been sustained by the accused-appellant on his male organ while committing crime goes to show that because of the said injuries, injuries were also caused on the private part of the deceased. The contention of learned counsel for the appellant that the injuries which were found on the private part of the accused-appellant was caused by the police when he was arrested is not at all acceptable. The evidence of P.W. 5 Dr. Brijesh Kumar Srivastava recorded by the trial court also show that the said injuries could be caused to the accused while committing rape on a minor child on 7.4.2012 between 11-12 p.m. and from his evidence it is also clear that the accused committed rape on the deceased. Moreover, from the evidence of P.W. 8 Dr. Mohammad Azam Hanfi, it is evident that the ante mortem injuries were found on the private part of the deceased and blood was oozing out and the cause of death is asphyxia as a result of strangulation and her thyroid cartilage bone was found to be fractured. Lastly the evidence of P.W. 2 Vinod who is witness of last seen coupled with the aforesaid evidences which are sufficient to prove the guilt of the accused-appellant, hence the trial court was right in accepting their evidence. So far as the evidence of sniffer dog is concerned, the Apex Court in the case of Lalit Kumar Yadav (Supra) has held as follows:-
"In the present case, the services of a sniffer dog was taken for investigation. The said dog traced the accused and he was formally arrested in the evening of the next day. The Investigating Officer, Ashok Kumar Yadav (PW-10) corroborated the evidence of Abdul Lais Khan (PW-4) to the effect that �Raja� sniffer dog after picking up scent from the place of occurrence tracked down the house of the accused. What is relevant to note is that the accused has not been convicted on the ground that the sniffer dog tracked down the house of the accused and barked at him. �...........
Since there is no direct evidence to prove the guilt of the accused the Trial Court and the Appellate Court considered the circumstances which led towards the accused. Admittedly, nobody was named in the FIR but referring to the incident that Km.�x� was murdered the FIR was lodged. Since nobody was named in the FIR the Investigating Officer took the help of the dog squad and the dog handler Abdul Lais Khan (PW-4) came with the dog. Dog tracking proceeding was done and the dog tracked the accused. The said fact is not disputed. �........."
32. In the case of State of Maharashtra v. Suresh (Supra) has upheld the conviction of the accused for the rape and murder of four years girl on the basis of circumstantial evidence, i.e., witness of last seen together with recovery of dead body, injuries found on the male organ of the accused and detection of stains of human blood and semen on underclothes of the accused were held on fact and circumstances sufficient to convict the accused with the offence of rape and murder of minor girl. In the instant case the evidence which have been led by the prosecution, i.e., the injuries were found on the penis of the accused-appellant and as per the opinion of the doctor, who had examined the appellant, the said injuries could be caused on his penis while committing rape on a minor girl. Moreover the injuries were also found on the private part of the deceased and blood was oozing out from it as is evident from the post mortem report and blood stains were found on the frock of the deceased as per the report of Serelogist. The evidence of witness of last seen and the evidence of sniffer dog.
33. Thus, in our considered opinion, the prosecution has proved its case beyond reasonable doubt by chain of circumstances which led to only conclusion that the accused-appellant committed rape on the victim and thereafter she was strangulated to death by him, hence the conviction of the appellant by the trial court is perfectly justified and correct which is hereby upheld.
34. Having considered the submissions advanced by the learned counsel for the parties regarding sentence of death awarded to the accused appellants, it is necessary to take into consideration the various pronouncements of the Hon''ble Apex Court taking into the circumstances of each case. Some of the latest pronouncement of the Apex Court on this point in which the earlier decisions of the Apex Court have also been considered are being discussed as under:
35. In similar facts and circumstances, the Apex Court in the case of State of Maharashtra v. Suresh (Supra) where death sentence was awarded to the accused, had altered the sentence to life imprisonment
36. The Supreme Court in the case of Ashok Kumar Pandey v. State of Delhi, reported in 2002 SCC (Cri.) 728, wherein a husband was convicted and sentenced to death for committing the murder of his wife and daughter. The Supreme Court having regard to the decision in the case of Bachan Singh v. State of Punjab, reported in 1980(2) SCC 684 held that in the facts and circumstances of the case it could not be concluded that the present case fell within the category of ''''rarest of rare cases'' hence sentence of death was commuted to rigorous imprisonment for life.
37. The Supreme Court in the case of Mulla and another v. State of U.P., reported in 2010 (2) SCC (Cri.) 1150 has again narrated the principles of Bachan Singh case (supra). In the said case, in the night incident eight miscreants killed five persons mercilessly for non-payment of ransom. Taking into account all the aggravating and mitigating circumstances, the appellants'' death sentence was commuted to life imprisonment which was to extend to the full term of life.
38. In another case of Rajesh Kumar v. State through Government of NCT of Delhi, reported in 2011 (75) ACC 553, relevant paragraph Nos. 86 to 90 and 105, the Supreme Court has held that the principles discussed in Bachan Singh (Supra) set out certain mitigating circumstances which was suggested by Dr. Chitaley. At paragraph 207 of the report of the learned Judge that these are undoubtedly relevant circumstances and must be given great weight in determination of the sentence. The circumstances set out here-in-below:
"206. Dr. Chitaley has suggested these mitigating factors :
Mitigating circumstances. -- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
39. In the said case, the Supreme Court observed that the High Court while discussing the mitigating circumstances as against the aggravating circumstance has not properly followed the principle discussed in Bachan Singh''s case supra), hence the Supreme Court held that the persons convicted of murder life imprisonment is the rule and death sentence is an exception hence the Supreme Court in the said case substituted death sentence by imprisonment for life.
40. In another case, Apex Court in Rameshbhai Chandubhai Rathod v. State of Gujrat, reported in 2011 (2) SCC 764 reiterated the principles of law laid down in Bachan Singh''s case (supra), Mullah''s case (supra). In the said case the Supreme Court considering the gravity of the offence, behaviour of appellant and fear and concern such incident generate in ordered society commuted the death sentence to life imprisonment directing that life imprisonment would extend to the full life of the appellant subject to any remission/commutation at the instance of Government for good and sufficient reasons.
41. Now in the light of the principles laid down in Bachan Singh(supra) case, which has been followed by the Supreme in its latest decisions, as seen above, the present case has to be adjudged whether there are mitigating circumstances which could be taken into account for appellants'' death sentence commuted to life imprisonment to extend full term of life.
42. In the instant case, the State has failed to show that the appellant is a continuing threat to Society or he is beyond reform or rehabilitation. Secondly, accused appellant Ranjeet aged about 20 years, when his statement was recorded by the trial Court under Section 313 Cr.P.C on 1.6.2013. Thirdly, there is no material shown by the State or the complainant to that there was a probability that the appellant would again commit criminal acts of violence as would constitute a continuing threat to Society.
43. In the instant case a minor girl aged about four years has been murdered after committing rape on her by the appellant which is undoubtedly a grave and heinous offence for which the duty of the Court is to impose adequate punishment depending upon the degree of criminality and desirability to impose such punishment, as a measure of social necessity and also as a means of deterring other potential offenders the sentence should be appropriate and befitting the crime.
44. Having considered the principles discussed in the Bachan Singh case (Supra) as well as Rameshbhai Chandubhai Rathod (supra) and other cases of the Apex Court mentioned above, we are of the opinion that the present case does not fall within the category of ''rarest of rare cases'' where the other option of awarding a sentence of imprisonment for life is unquestionably foreclosed. The death sentence taking into all aggravating and mitigating circumstances, the appellant''s death sentence is commuted to life imprisonment to extend to the full term of life of the appellant would be sufficient and meet the ends of justice. We, therefore, reduce the sentence under section 302 I.P.C. of death of the appellant to life imprisonment which extend to the full term of life of the appellant. The sentence imposed by the trial court on the appellant on all other counts would remain unaltered.
45. The accused appellant is already confined in jail, hence he shall serve out the sentence as altered/modified by this Court under section 302 I.P.C. as well as on all other counts by the trial court. All the sentences shall run concurrently.
46. Thus, the reference made by the trial court as well as prayer made by the State to confirm the sentence of death of the appellant under section 302 I.P.C. are hereby rejected.
47. The appeal filed by the accused-appellant is partly allowed.
