IPC Ss. 376AB, 300, 201 Evidence Act (1 of 1872), S. 3 -Rape on minor and murder-Circumstantial evidence

2022 CRI. L. J. 4177

AIROnline 2022 ALL 32

(ALLAHABAD HIGH COURT)

Harendra v. State of U.P. 

Captial Cases No. 12 of 2021, 

D-8-7-2022

(A) Penal Code (45 of 1860), Ss. 376AB, 300, 201 Evidence Act (1 of 1872), S. 3 -Rape on minor and murder-Circum- stantial evidence Circumstance of last seen Consistent testimonies of mother and elder sister of deceased that deceased entered into house of accused to have water, thereafter she could not be traced and later on her body was dug out from pit in- side the house of accused No sugges- - tion to the contrary in cross-examination - Fact that on the day of occurrence de- ceased entered the house of accused and was not seen thereafter, proved beyond reasonable doubt. (Paras 38, 39)

(B) Penal Code (45 of 1860), Ss. 376AB, 300, 201- - Evidence Act (1 of 1872), S. 3 - Rape on minor and murder - Circumstantial evidence- Circumstance that on next day of the incident, father of deceased met the accused at his house with scratch al marks on his neck - No suggestion in cross to father of deceased contradicting Es his meeting the accused at his house and s the accused having scratch marks - State- ment in FIR that father of deceased could not meet accused at his house, of no consequence-Father of deceased not con- fronted with FIR in cross-examination - Prosecution proved that on the next day of the incident, father of deceased met the accused at his house with scratch marks on his neck. (Paras 40-43)

(C) Penal Code (45 of 1860), Ss. 376AB, is 300, 201-Criminal P.C. (2 of 1974), S. ed 154-Rape on minor and murder Delay in lodging FIR- Effect Where a minor daughter went missing, delay of three days in lodging FIR is not very ma- terial because family members of a miss- ing girl to hide shame and probing ques- tions, before making their grievance pub- lic, make all efforts to trace out the miss- ing girl - No reason to falsely implicate accused Informant deposed that he had searched the deceased but when his efforts could not bear fruit, he lodged FIR Delay not fatal to prosecution case. (Paras 44-47)

(D) Penal Code (45 of 1860), Ss. 376AB, 300, 201 - Evidence Act (1 of 1872), S. 3 Rape on minor and murder-Presence of accused Proof Presence of the ac- cused in his house on the day and next day of incident proved by elder sister of de- ceased-Accused did not deny his pres- ence on said days - Inference drawn that on the day of the incident when the de- ceased entered the house of accused, he was present in that house - No evidence that his other family members were also present in the house- Fact that accused alone was present in the house on the day of the incident, proved. (Para 48)

(E) Penal Code (45 of 1860), Ss. 376AB, 300, 201-Evidence Act (1 of 1872), Ss. 3, 27- Rape on minor and murder - Re- covery of dead body-Reliability- - Pros- ecution established beyond doubt that dead body was recovered from a pit inside the house of accused-No enmity of the pros- ecution witnesses with accused-Defence plea that the dead body was planted in the house of the accused, rejected -Discov- ery and recovery of dead body of the vic- tim from a pit inside the house of accused, proved.(Paras 49, 50, 51)

(F) Penal Code (45 of 1860), Ss. 376AB, 300, 201-Criminal P.C. (2 of 1974), S. 41 Rape on minor and murder Ar- rest of accused -Time of arrest and by whom the accused was arrested, not dis- closed Accused arrested near Chandigarh-Nothing on record to show whether, before and after the arrest any information was provide to local authoritiesties of Chandigarh Administration or not of - Even an arrest memo was not prepared -Arrest of accused was made in a most casual and cursory manner without fol- lowing due procedure-Arrest of accused appeared to be illegal AIR 1997 SC 610, Followed. AIROnline 2019 DEL 2661. Relied on. (Paras 52, 53, 54

(G) Penal Code (45 of 1860), Ss. 376AB, 300, 201-Evidence Act (1 of 1872), S. 27 -Rape on minor and murder - Recov- ery evidence - Admissibility - Case of prosecution that clothes of accused and deceased allegedly worn by them at time of incident were recovered from pit at the instance of accused - No clear evidence as to when and from where the accused was arrested - Place from where the re- covery of clothes etc. was made was a dug out pit from where dead body of deceased was already recovered-Alleged recovery was made on the disclosure of accused can- not be accepted.(1999) 8 SCC 649: AIR 1999 SC 3544, Followed. (Paras 56, 57)

(H) Penal Code (45 of 1860), Ss. 376AB, 300, 201-Evidence Act (1 of 1872), S. 45 Rape on minor and murder - Medical evidence- -Autopsy and medical evidence confirmed rape and murder of the deceased on or about 6 to 7 days before the autopsy - Deceased was raped and murdered on 1 or about the day when she entered the house of the accused to have water, proved. (Paras 58, 60, 61(e))

(I) Penal Code (45 of 1860), Ss. 376AB, 300, 201-Evidence Act (1 of 1872), S. 3- Rape on minor and murder- Cir- cumstantial evidence Deceased was 1 below the age of 12 years at the time of the incident- Chain of circumstances relied on by the prosecution, completed Conviction, proper