Bal Govind Alias Govinda Vs State Of UP: Evidence Of Victim Being Last Seen With Accused Not Convincing

DATE OF JUDEMENT
18TH November 2021

BENCH
Justice Manoj Misra
Justice Sameer Jain

PARTIES
Appellant- Bal Govind Alias Govinda
Respondent- State of U.P.

SUBJECT

In a case where the trial court had given death penalty to the accused for raping and murdering a minor girl, the Allahabad HC acquitted the accused on the grounds that the evidence that the deceased was last seen with the accused is not convincing.

LEGAL PROVISIONS

Section 302 of IPC lays down the provision for punishment of murder which is death or life imprisonment.

OVERVIEW

• Father of the deceased, on 8.08.2020 filed an FIR in which it was alleged that the accused (aged11-12 years) had enticed his daughter to go with him on 06.08.2020 after which she was found dead on 8.08.2020.
• The FIR was registered for offences punishable under section 302, 201 and 363 of I.P.C. and section 5/6 POSCO Act against the appellant/accused.
• After commencement of the trial, the younger sister (about 6 years old) of the deceased was examined by the prosecution. She stated that she does not remember the date of the incident; that on the day of the incident she and her sister were on their way to bazaar when she brought her a toffee and sent her back and then went away with her elder sister.
• One of the witnesses, Sushil Kumar submitted that he had given the information regarding the involvement of Govinda (accused) on 6-08-2020 by dialing 112. He also stated that on 06-08-2021, he saw Balgovind taking away the deceased. He, however, failed to disclose the time when he saw the appellant with the deceased.
• Further, the shop owner, Dilip Kumar, submitted that the accused Govinda came to his shop with one girl and purchased a packet of biscuit worth Rs. 5. He said that he could not recognize the girl at that time butafterwards when the body was recovered, he came to know that the deceased was the girl who had come to the shop with the appellant.In his cross-examination, however, he stated that both the girls had come to his shop at that time, and that Govinda (appellant) had purchased salted snacks, toffee, and biscuits as well, and had sent the younger daughter back after giving her toffee, and had taken the deceased with him.

Trial court Findings

After finding that the accused was of 25 years and the deceased was aged below 12 years, the trial court concluded that the case warranted a death penalty. Following circumstances were found proved against the accused-appellant:

1. The deceased was aged below 12 years.
2. On 06.08.2020, the accused took the deceased under the pretext of getting her a toffee, which is established by the testimony her sister (PW1). PW1 had also accompanied them up to a distance but was sent back by the accused after getting her a toffee form PW-6, the shop owner and an independent witness confirmed.
3. The deceased was last seen alive with the accused when he purchased toffee,etc for her and her sister (PW1) and thereafter the deceased did not return.
4. In the morning of 08.08.2020, deceased’s body was recovered from a maize field about one and one-half km away. The post mortem examination disclosed ruptured hymen and smothering which indicated that she was ravished and then murdered.

In the lack of an explanation, all of these elements add up to rule out all other possibilities other than the conclusion that the accused lured the deceased and her sister (PW-1) with toffee, sent her sister back home, ravished the deceased, and then killed her.

ISSUE

Whether the appellant is liable to be convicted and receive death penalty?

JUDGEMENT ANALYSIS

• The court stated that in a case which is base on circumstantial evidence, to sustain conviction, the circumstances from which the conclusion of guilt is to be drawn should, first of all, be fully established and all the facts so established must be consistent only with the hypothesis of the guilt of the accused.
• When evaluating the statement of the younger sister, the court did not find much merit in it to conclude that the deceased was last seen alive in the company of the appellant. She did not speak of the date and time when she was with her sister (the deceased) on way to the Bazaar and was offered a toffee by the appellant.
• The statement of Sushil Kumar was found to be equally insignificant to carry the last seen theory forward as he also could not tell the time as to when he saw the deceased with the appellant.
• Lastly, the court examined testimony of the shop keeper. His testimony was also discarded as it was noted that his deposition is based more on his thoughts than knowledge. His testimony did not inspire confidence of the court to record with conviction that the accused-appellant was with the deceased in the evening/night of 06.08.2020. “Such evidence may, at best, create suspicion but would notpartake the character of proof”, held the court.
• After analysing the matter further, the court came to the conclusion that the prosecution evidence could not complete the chain of circumstances to prove the guilt of the accused-appellant by excluding all other hypothesis.
• The court examined the matter from another perspective to see whether the claims in the FIR were based on the informant's own knowledge or were made at the instance of police based on strong suspicion in order to settle a sensitive case. The court noted that there were 100-150 persons on the scene who were unaware of the crime's origins and were protesting. “Thus, there must have been immense pressure on the police to solve out the case”, said the court.
• The court after observing all of this came to the conclusion that the accused appellant was named on mere suspicion, and not on evidence, to solve out the case also proved by the fact that neither a missing report nor an FIR was lodged till after expiry of few hours from the discovery of the body on 8th August, even though, allegedly, the girl had been missing since 6th August.
• The court came to a firm conclusion after discussing and analysing the entire prosecution evidence that the prosecution evidence may, at best, give rise to a suspicion against the appellant but fails to prove the circumstances of a conclusive nature and tendency from which it might be held that the accused has committed the crime.
• The court held that the prosecution has failed to prove the charges for which the accused-appellant was tried and, therefore, the judgement and order of the court below was set aside.
• The court allowed the appeal, rejected the death penalty and acquitted the appellant of all the charges for which he was convicted.

CONCLUSION

The court in this case held that the circumstantial evidence was not enough to prove that the last person she was with could be the accused. The court relied on the fact the in cases where circumstantial evidence is available, the guilt to be drawn should be fully established. The circumstances concerned in any given case 'must or should' be established and not just 'may be' established to be convicted.

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