Lalit Kumar Yadav @ Kuri Vs State of U.P.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1022 OF 2006

LALIT KUMAR YADAV @ KURI … APPELLANT

Versus STATE OF UTTAR PRADESH … RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the impugned common judgment

dated 11th August, 2006 passed by the High Court of Judicature at

Allahabad, Lucknow Bench in Capital Sentence Reference No.1 of 2005

with Criminal Appeal No.252 of 2005 from Jail and Criminal Appeal No.

384 of 2005. By the impugned common judgment the High Court

while dismissed the appeal preferred by the appellant, answered the

reference affirming the death sentence imposed by the Trial Court for

the offence committed under Section 302 IPC for having committed

murder of Km. ‘x’ (victim: original name not disclosed). The High

Court also affirmed the conviction and sentence passed against the

appellant under Section 376 read with Section 511 of Indian Penal

Code for having made an attempt to commit rape on Km. ‘x’ aged

about 18 years and sentenced him to undergo five years rigorous

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imprisonment thereunder.

2. Initially the appeal was heard by the Division Bench of the

Allahabad High Court, Lucknow Bench and after conclusion of the

arguments the Hon’ble Judges pronounced their judgments but had a

divided opinion; one Hon’ble Judge affirmed the order of conviction

and sentence recorded by the Trial Court and the other Hon’ble Judge

reversed the whole judgment and the order of the Trial Court and out

rightly acquitted the accused-appellant on both the counts. Therefore,

the case was referred under Section 392 Cr.PC to a third Judge who

after hearing the parties and on appreciation of evidence by the

impugned judgment dated 11th August, 2006 dismissed the appeals

preferred by the appellant and another on his behalf. The judgment

rendered by the Trial Court has been upheld and the reference was

answered confirming the penalty of death sentence.

3. Learned counsel appearing for the appellant, inter alia, made

following submissions in assailing the judgment under appeal:

(i) `The prosecution has failed to produce any witness

to prove the very factum of the registration of the FIR. Irrespective of

the same it is ante-timed.

(ii) Ram Chandra Chauarasiya (PW-1) is a highly

interested witness and has entered into the witness box only for the

purpose of achieving the conviction of the appellant. The statement of

PW-1 is not corroborated by any one even though witnesses were

available for the same.

(iii) Sriram(PW-9), who was produced to prove recovery memo

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is not an independent but an interested witness who is the son-in-law

of brother of PW-1.

(iv) The ‘polythene’ bag in which the ‘sickle’ was wrapped was

taken by the Investigating Officer without any seal from the site of

recovery.

(v) The alleged recovery of clothes ‘Baniyan and towel’ do not

satisfy the mandate of Section 27 of the Indian Evidence Act.

Therefore, the result of chemical examiner is of no value to prove the

charge.

(vi) Identification by sniffer dog cannot be taken as evidence

for the purpose of establishing guilt of the appellant.

4. Before we proceed to discuss the merits of the above contentions,

it is desirable to notice the case of the prosecution and evidence on

record as recapitulated below:

5. On 23.2.2004, Ram Chandra Chaurasiya (PW-1) and his wife

Vidyawati residents of village Gogulpur, Police Station Satrikh, District

Barabanki had gone to their agricultural field. When they returned to

their house at 2.30 p.m., they were informed by their daughter Guddi

that their another daughter Km.‘x’ had gone to beckon them at 1.30

p.m., as on that day, Govind, the son of Ram Chandra Chaurasiya’s

sala (brother-in-law) had come to their house, his two daughters

thought it proper to inform their parents and it was in this background

that Km. ‘x’ had gone to inform and summon her parents. All the

family members had a long wait for Km.‘x’ to return but when she did

not come back up to 4.00p.m., Ram Chandra Chaurasiya (PW-1) and

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Vidyawati both being worried left in search of their daughter. When

they were going through the agricultural fields, they were shocked to

see their daughter Km.‘x’ lying dead in pool of blood in the plot of one

Vishwanath. Ram Chandra Chaurasiya (PW-1) lodged a written report

(Ext. Ka.1) at Satrikh Police Station where upon a case was registered

and the then Station House Officer Shri Ashok Kumar Yadav assumed

the charge of investigation and immediately swung into action. He

visited the site of occurrence and soon sent for the dog squad. An

Inspector of the Crime Investigation Department, who was In-charge of

a sniffer dog, named ‘Raja’ arrived at the place of occurrence late in

the evening. He instructed ‘Raja’ to pick up the smell of culprit from

the site of occurrence and then find out some clue of the crime and

the criminal. ‘Raja’ who was a very well trained dog of German

Shepherd species and who had earlier helped to uncover many crimes,

smelt all the important spots around the dead body at the site of

occurrence and chasing the trail of the same smell, it walked along

with police personnel and villagers behind, and straightaway reached

at the house of the accused-appellant. The appellant and his brother

wrapped with blankets were sleeping inside their house. ‘Raja’ barked

at the blanket of the accused-appellant, who was immediately grabbed

over by the police. On the next day i.e. on 24th February, 2004, the

Investigating Officer recovered at the instance of accused-appellant

the bloodstained Baniyan (vest) and a Gamchha (towel) of the

accused-appellant and also Hansiya (scythe) used in the commission

of crime. The chemical examiner on examination of the three

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recovered articles noticed that there was blood on all the said

incriminating articles. The inquest report was also prepared on 24th

February, 2004 by the Investigating Officer. As recited in the said

report, the throat of the victim of occurrence was found chopped off.

Her neck was barely connected with the trunk. The dupatta of the

deceased was found embedded in the large wound and all the five

fingers of her left hand had cut wounds. Her dead body was packed

and sealed in a bundle and sent for post-mortem. Although the scene

at the site of occurrence revealed that the Salwar (trouser) of the girl

had been untied and taken off down and she was found in the naked

state and also there were the signs of violence all around which

indicated that a ferocious attempt to commit rape on her was made,

yet the Doctor found that the girl had not been ravished.

6. The Investigating Officer prepared the site plan of the

occurrence. He collected ordinary and bloodstained earth from there

and packed them in separate boxes. The trampled wheat plants

around the dead body revealed a tale of violence. Both the chappals

of the deceased were also lying at a distance. After interrogating all

the relevant witnesses, collecting the relevant reports including the

post-mortem, the Investigating Officer accomplished the investigation

and submitted a charge-sheet against the accused appellant.

7. Lalit Kumar Yadav pleaded not guilty before the Trial Court and

denied all the incriminating allegations levelled against him. He,

however, admitted that he had been arrested by the police at 11.00

p.m. on 23rd February, 2004, i.e. the date of occurrence.

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8. The prosecution examined as many as ten witnesses in support of

the prosecution story. Ram Chandra Chaurasiya (PW-1) is the father of

the deceased. He proved his report and also testified that the

accused-appellant had teased the deceased girl a few days before the

occurrence and when Km.‘x’ complained about the incident of teasing

to her cousin Ashok Kumar, the latter had scolded the appellant.

Unfortunately, Ashok Kumar died subsequent to the occurrence. He

also proved that the police called a dog who after smelling the site of

occurrence tracked down to the house of the accused and caught him.

9. Ram Prakash Yadav (PW-2) was the witness to whom the appellant

had allegedly confessed about the commission of crime. He was,

however, declared hostile and it was suggested that he being a

‘Yadav’ had helped the accused by retracting his earlier statement.

He, however, confirmed the fact of a sniffer dog being brought to the

village by the police.

10.Similarly, Ram Prakash (PW-3), S/o Jagannath turned hostile by

rejecting the suggestion of the prosecution that the accused-appellant

conveyed and confessed to him that he had killed the girl as she was a

girl of easy virtue.

11.Abdul Lais Khan (PW-4) is the handler of the German Shepherd Dog

known as ‘Raja’. The said dog was taken to the village in the late

evening on the date of occurrence. Shri Khan was then the Sub-

Inspector in the Crime Research Branch (Dog Squad), District Lucknow.

He testified that at about 8 p.m. on February 23, 2004, he was

directed by the Senior of Superintendent of Police, Lucknow to go to

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the site of occurrence. Accordingly, he arrived there at 8.30 p.m.

alongwith the German shepherd dog named as ‘Raja’. He started the

search work at 9 p.m., it being a night with dark all around, a

patromax lantern was lightened up near the dead body of the victim.

He asked for arrangement of more light which was provided by the

Investigating Officer and then he instructed the dog to smell the

footprints of the culprit around the dead body and then set the dog

scot-free and asked it to move. He alongwith the police personnel and

other villagers walked behind the dog. After walking about 1 k.m. the

dog reached in the village Gokulpur Aseni. It then traversed through

the Khadanja street. After tracking the street in front of 10-12

houses, the dog entered into a thatched house, where two boys were

resting on a wooden cot. The dog barked at the accused Lalit Kumar

who was identified by Abdul Lais Khan in the Court as the same

person, who was smelled by the dog and whom it had attempted to

pounce and catch hold. However, in the meantime, the Station House

Officer of Police Station Satrikh apprehended Lalit Kumar. In nutshell,

according to the evidence of this witness, the accused was the

offender whose footprints were there around the dead body.

12.Head Constable Ram Prakash Shailesh (PW-5) had prepared the

chik report Ex.Ka.5 on the basis of Ram Chandra Chaurasiya’s written

report (Ext.Ka.1). He registered the case in the General Case Diary at

Sl.No.33 on 23rd February, 2004 and submitted its copy Ext.Ka.6.

13.Dr. Arun Chandra Dwivedi (PW-6) is the Doctor, who conducted the

post mortem of the victim’s corpse and prepared the autopsy report

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(Ext.Ka.7). He proved the said report before the Trial Court and

testified that the neck of the deceased was almost severed from the

trunk with a namesake junction of the skin. He confirmed that it was

possible for the neck of the victim being severed by the sickle having

small teeth.

14.It is significant to note that Dr. Arun Chandra Dwivedi was

summoned by the High Court under Sections 367(1) and 391 of the

Code of Criminal Procedure with a view to ascertain as to whether the

major injury by which there was almost a severance of the neck from

the trunk could possibly be caused with the sickle (Mat.-Ex.8). High

Court while passing an order on July 13, 2005 expressed that

something lacking so far as the use of sickle was concerned. The

doctor deposed in the Court that the major incised wound found on the

neck could have been caused by the sharp edged ‘hansia’ (sickle) but

it could not be asked in the Trial Court as to whether this kind of injury

could possibly be caused by the aforesaid ‘hansia’ Mat.-Ext.8, which

had teeth on its blade. In common parlance such a ‘hansia’ curved in

design is known as ‘Aaridar’ – means blade with teeth. Dr. Dwivedi

appeared before the High Court. The sealed bundle of the sickle was

opened in the Court and shown to Dr. Arun Chandra Dwivedi, who was

then posted as Medical Officer, District Hospital, Barabanki. He

testified before the High Court that the injuries shown in the post

mortem report Ext.Ka.7 could possibly be caused by the sickle Mat.-

Ext.8. It was also stated by him that the injuries in the fingers of the

deceased could have been sustained by the victim while defending

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herself.

15.Head-Constable Devtadeen (PW-7) took out on March 16, 2004 the

two sealed bundles of this case from ‘malkhana’ of the Police Station

Satrikh at 2.30 p.m. and after making an entry in the G.D. went to the

Court of Chief Judicial Magistrate, Barabanki and obtained a letter, a

copy addressed to the Chemical Examiner for examination of the

incriminating articles. Then on 17th March, 2004, he went to the

laboratory and deposited both bundles alognwith the letter in the

laboratory.

16.Constable Awadhesh Kumar (PW-8) proved that he carried the

dead body of the victim to the mortuary for autopsy.

17.Sriram (PW-9) is a relative of the informant Ram Chandra

Chaurasiya. He came to participate in the cremation of the latter’s

daughter. In the evening, the Investigating Officer met him and asked

him to accompany him to the accused-appellant’s house. He went

there along with other village men. The accused had taken all of them

including the Investigating Officer inside the house and took out the

sickle wrapped in a ‘polythene’ and his clothes namely Baniyan and

Gamchha. To depic this discovery, memo Ex.K.12 was prepared by the

Investigating Officer. This witness identified his signature on it.

18.Sub-Inspector Ashok Kumar Yadav (PW 10) is the Investigating

Officer of this case. According to his evidence, this case was

registered in his presence at the Satrikh Police Station. He then

reached at the site of occurrence at about 6.30 p.m., inspected the

site of occurrence, saw the dead body lying in the agricultural field of

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Vishwanath, prepared the site-plan Ext.Ka.13 and then contacted his

higher authorities and asked for a Dog Squad. He sent his own police

jeep for bringing the dog. The Deputy Superintendent of Police Deena

Nath Dubey was also present at the site of occurrence. Abdul Lais

Khan, Sub-Inspector, incharge of the Dog arrived at the site of

occurrence long after the sunset and examined the site in the light of

patromax. Shri Khan instructed the dog to smell the entire site of

occurrence as also the dead body and then the said dog with the help

of the trail of the smell reached at the house of the accused, who was

lying on a ‘takhat’, i.e., the wooden cot. The dog barked at him. He

then interrogated the accused about his relationship with the

deceased. At 7 p.m. on the other day, he prepared the inquest report

(Ext.Ka.4) and interrogated other witnesses. The accused was then

formally arrested and he led to the recovery of the sickle (Mat.-Ext.8),

his Gamchha (Mat.-Ext.9) and Baniyan (Mat.-Ext.10). After completing

other formalities of interrogating the witnesses and collecting other

material exhibits, the Investigating Officer brought the accused and

the sealed bundles and boxes of the incriminating articles to the police

station. On having completed the task of investigation, this witness

submitted charge-sheet Ext.Ka.28 against the accused.

19.The defence of the appellant was that of denial. The appellant in

his statement under Section 313 Cr.P.C. stated the charges had been

wrongly framed and also denied all the incriminating allegations

levelled against him.

20.The prosecution relied upon four pieces of circumstantial evidence

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first, Sniffer Dog- tracking evidence, the other is recovery of sickle i.e.

the weapon which was used by the appellant to cut the neck of the

girl, the third is the recovery of clothes of the appellant and past

conduct of the appellant pertaining to eve teasing of the deceased girl.

21.Relying upon the prosecution case and the evidence led in support

thereof, the learned trial court held the accused-appellant guilty under

Sections 302 and 376 read with Section 511 of the I.P.C. and then

sentenced him to death for the offence under Section 302 I.P.C. and 5

years rigorous imprisonment for the offence under Section 376 read

with Section 511 of the IPC. The High Court on reference affirmed the

death sentence.

22.There is a suspicion on the veracity of the First Information Report

(Ext. Ka-1) with reference to its entry in the G.D. Report (Ext.Ka-6).

According to recital of the G.D. report (Ex.Ka.6) Ram Chandra

Chaurasiya himself submitted his written report at the police station.

The reference was made it to the testimony of Ram Chandra

Chaurasiya (PW-1), father of the victim who testified that he dictated

the report and got it sent to the police station. He however, could not

recollect the name of the villager who carried the said report. This

was the ground taken by the counsel for the appellant to raise

suspicion on the veracity of the first information report. As a matter

of fact, there is nothing inconsistent between the testimony of the

PW-1 and G.D. Report. The FIR (Ext.Ka.1) takes few facts. Neither

any accused was named in it nor there is any infirmity. A perusal of

the said report would reveal that the informant (PW-1) mainly

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disclosed in it that his daughter Km.‘x’ aged about 18 years had gone

in search of her parents, was found dead in the agricultural field of

Vishwanath on 23rd February, 2004. It was also added that some

person incised her neck. A prayer for necessary action was pressed

into service. The occurrence came to the notice of informant PW-1

after 4.00 p.m. and the written report was submitted at 6.10 p.m. on

the same day at Satrikh Police Station, about 7 kms. from the village.

Looking to the gravity of the offence and shock of the family

members of the deceased, it cannot be said that there is delay in

reporting the matter to the police.

We, therefore, find that there is no inconsistency on the point to

act.

23.The second submission of the appellant is that Ram Chandra

Chaursiya (PW-1) is highly interested witness and his statement is not

corroborated by any other witness though available.

Ram Chandra Chaursiya (PW-1) disclosed that a few days

before the date of occurrence, accused teased his daughter and also

threatened her. Her daughter Km.‘x’ explained about the accused

misconduct to her cousin Ashok Kumar. Later, on having received the

complaint about the indecent behaviour of the accused, he scolded

him. Unfortunately, Ashok Kumar died subsequently but the evidence

of the victim’s father is quite convincing and worth to believe. In fact

in FIR he has not named the accused. Merely because PW-1 is the

father of the deceased victim girl, his evidence cannot be doubted on

that count in absence of any suspicion.

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24.The next argument assails the testimony of Sriram (PW-9) on the

ground that he is related to the deceased. He fairly stated that he is

son-in-law of Ram Chandra’s cousin. He has come from Ibrahimpur

village of district Barabanki. He was the person who accompanied the

police party to the house of the accused. He has fully corroborated the

testimony of the Investigating Officer and testified that the accused

leading the police party and a few citizens including himself opened

the door of his house and had taken out the sickle lying below the cot.

He rejected the defence suggestion that the Investigating Officer had

pointed out towards the sickle; rather asserted that it was the accused

himself who had picked up the sickle and handed over to the

Investigating Officer. The accused unwrapped the sickle from the

‘polythene’ sheet. The Investigating Officer retained the sickle

alongwith polythene. There is slight variance on the point of time of it

being prepared. Whereas it is recited in the recovery memo that the

police party being led by the accused arrived at the accused house at

6.00 p.m., Sriram (PW-9) disclosed that it was about 7.00-7.30 p.m.

when the memo was prepared. It is the common experience that the

daylight continues even after sunset upto 20-25 minutes. The

villagers give approximate timing generally based on the position of

the sun. So, the possibility of the recovery memo being prepared in

the daylight at the time of the day meeting with night popularly called

as ‘Dusk’ is absolutely credible. The variance besides being

insignificant is justified, as after recovery, it would have taken some

time for the Investigating Officer to finish the job after completing all

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the relevant formalities including examination of the weapon. The

whole recovery memo is found written in the handwriting of the

Investigating Officer. Therefore, in the time of its preparation has no

adverse bearing. Only because Sriram (PW-9) is being related to the

deceased there can be no reason to doubt the veracity of his

testimony as his presence in the village on 24.02.2004 is justified. On

having heard about Ram Chandra’s daughter death, in ordinary course

being a relative he came to express his condolence and participated in

the cremation of the girl. He cannot be stated to be chance witness.

In fact nothing could be extracted from his cross-examination, which

might be given indication of his being not a probable witness of the

recovery of sickle and recovery memo (Ext. Ka-12). We, therefore,

find that his presence in the village being most natural and probable,

his evidence is full of credit and acceptable.

25.The next contention made on behalf of the appellant was that

polythene in the Sickle wrapped and taken by Investigating Officer was

without any seal at the time of recovery. This contention is untenable

on the face of recovery memo itself. In the latter part of this memo

(Ext.Ka-12), description of the Sickle is given and then it is recited in

clear terms that it was sealed then and there in a packet and recovery

memo prepared.

The Investigating Officer (PW-10) has also stated that on

the statement of the accused, the sickle was recovered from his house

in presence of witness Sriram (PW-9) and also got recovered Gamchha

(Towel) and Baniyan of the accused. The recovery of the sickle which

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was kept in the clothes under the Cot was made from the house of the

accused. The Investigating Officer has also stated that the sickle was

having bloodstains and after taking the sickle and bloodstained

Gamchha and Baniyan in custody he sealed the same.

26.The validity of recovery proceeding has been questioned by the

learned counsel for the appellant and submitted that the confessional

statement is not admissible under Sections 25 and 26 of the Indian

Evidence Act. However, Section 27 of the Indian Evidence Act,

provides as follows:

“27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved.”

Therefore, in the light of aforesaid provisions, the statement of

accused so far as it relates to giving of information regarding the

hiding of the sickle and recovery of the same can be taken into

account to prove the truth of the incident and to prove the statements

of other witnesses which corroborated the same.

27.In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, this

Court noticed the scope and ambit of Section 27 of the Indian Evidence

Act and observed:

“16. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the

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provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused’s own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.”

28.In Pandurang Kalu Patil v. State of Maharashtra, (2002) 2

SCC 490, this Court observed:

“5. Even the recent decision in State of Maharashtra v. Damu (2000) 6 SCC 269 this Court followed Pulukuri Kottaya AIR 1947 PC 67 with approval. The fallacy committed by the Division Bench as per the impugned judgment is possibly on account of truncating the word “fact” in Section 27 of the Evidence Act from the adjoining word “discovered”. The essence of Section 27 is that it was enacted as a proviso to the two preceding sections (see Sections 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to anyone while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. Nonetheless, the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulukuri Kottaya AIR 1947 PC 67 (p. 70, para 10) that “it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced”. The following sentence of the learned Law Lord in the said decision, though terse, is eloquent in conveying the message highlighting the pith of the ratio: (AIR p. 70, para 10)

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“Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant.”

29.In Bodh Raj alias Bodha and others v. State of Jammu and

Kashmir, AIR 2002 SC 3164, it was held that a statement even by

way of confession made in police custody which distinctly relates to

the facts discovered is admissible in evidence against the accused.

The statement which is admissible under Section 27 is the one which is

the information leading to discovery. Thus what is admissible being

the information, same has to be proved and not the opinion formed on

it by the police officer. The exact information given by the accused

while in custody which led to the recovery of the article has to be

proved; the exact information must be adduced through evidence.

30.In the present case the recovery of ‘Gamchha’ and ‘Baniyan’ at the

instance of the accused from the underneath the Takhat (Cot) is an

important factor that connects the accused with the crime. According

to the report of the chemical examiner and serologist, blood was also

found on the said ‘Gamchha’ and ‘Baniyan’ belonging to the accused.

This leads to the conclusion that at the time of committing murder the

accused was wearing the ‘Gamchha’ and ‘Baniyan’ and thereafter he

concealed them underneath the Takhat.

Therefore, the aforesaid contention raised on behalf of the

appellant that the alleged recovery of clothes i.e. Gamchha and

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Baniyan do not satisfy the mandate of Section 27 of the Indian

Evidence Act cannot be sustained.

31.It was lastly urged on behalf of the appellant that identification of

accused by sniffer dog cannot be relied upon as it is not admissible in

order to prove the guilt of the appellant.

Similar contention was raised in Abdul Rajak Murtaja

Dafedar v. State of Maharashtra, (1969) 2 SCC 234, wherein this

Court opined “that in the present state of scientific knowledge

evidence of dog tracking, even if admissible, is not ordinarily of much

weight.”

32.In Gade Lakshmi Mangaraju alias Ramesh v. State of A.P.,

(2001) 6 SCC 205, this Court noticed the criticism advanced against

the reception of evidence pertaining to sniffer dog. The objection was

that the life and liberty of human being should not be made to depend

on animals sensibilities and that the possibility of a dog misjudging the

smell or mistaking the track cannot be ruled out, for many a time such

mistakes have happened. In the said case, this Court relying decision

in Abdul Rajak Murtaja Dafedar (supra) case held:

“17. We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.”

33.In Dinesh Borthakur v. State of Assam, (2008) 5 SCC 697,

while the same question was considered, referring to Gade Lakshmi

Mangaraju (supra) case this Court held “the law in this behalf,

therefore, is settled that while the services of a sniffer dog may be

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taken for the purpose of investigation, its faculties cannot be taken as

evidence for the purpose of establishing the guilt of an accused.”

34.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. The evidence of dog tracking only shows how the

accused was arrested. The Trial Court and the Appellate Court

noticed the motive of the accused. Ram Chandra Chaurasiya (PW-1)

disclosed in his evidence that a few days before the date of

occurrence, the accused has teased his daughter and also threatened

her. Her daughter Km.‘x’ complained about the misconduct of the

accused to her cousin Ashok Kumar and the latter admonished the

accused for the same. Ashok Kumar died subsequently but the

evidence of the girl’s father is quite convincing and worthy of credit.

The aforesaid incident clearly reflects upon the motive of the accused.

The prosecution has brought on record evidence as to string of her

trouser was found untied and the trouser had been taken down. She

was lying naked when found dead. The scene at the site of occurrence

indicates that the trouser of the deceased had been taken down with a

view to outrage her modesty. A portion of her dupatta were found

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thrust in her mouth so as to gag her. The other part of the dupatta

was found in the incised wound on the neck so as to soak blood. The

pair of the chappals of the deceased was lying at a distance. The

wheat plants were noticed to be trampled which indicates violence and

a scuffle between the victim and the assailant. The episode of eve

teasing of the girl indicates that the accused wanted sex with her and

it was in this background that he made a forcible attempt to rape her.

It appears that the girl was bold and brave and she resisted the

accused forceful attempt which enraged and provoked the accused to

eventually commit the heinous act.

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. The accused

who was then taken into custody gave statement regarding

commission of crime. Though the statement is not admissible, at his

instance the sickle as well as blood stained cloths were recovered.

The report proved that the sickle was blood stained. The Doctor has

given statement that the injury caused upon the victim could have

been caused by the weapon so recovered which establish that the said

weapon was used in committing the murder. Ram Chandra Chaurasiya

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(PW-1) father of the victim had given statement that earlier also the

accused eve-teased his daughter Km.‘x’ for which his nephew Ashok

Kumar scolded accused. Ram Prakash (PW-3) although turned hostile

had made statement that accused had confessed to him that since the

girl has refused sexual relationship with him he had murdered her.

Though such statement cannot be relied upon independently to hold

the accused guilty, other chain of evidence reaches to only one

conclusion i.e. against the accused. Recovery of handkerchief from

the place of murder, with the mark of “Heart” and inscription of the

words “I Love You”, establishes that some person were closed to her.

The position of her cloth of the lower body “salwar” establish that the

person tried to have sex with the girl and the injuries on the fingers of

the girl also established that she protested somehow. These

circumstances also lead to the conclusion that the person who could

not succeed in outrage the modesty of the girl, murdered her. There is

no other evidence contrary to it. Further, there is no evidence to

suggest that the father of the deceased had any enmity or grudge with

anyone who may be suspected to have committed the murder. All

these circumstances proved that it is nobody else but the accused who

attempted to commit rape and murdered the deceased Km.‘x’.

35. On the point of awarding death sentence, a Constitution Bench of

this Court in Bachan Singh v. State of Punjab (1980), 2 SCC 684

observed:

“206. Dr Chitale has suggested these mitigating factors: “Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the

Page 22

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 w ould 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.

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.........”

36.In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, this

Court discussed the circumstances in which the death sentence can be

awarded and summarised the guidelines indicated in Bachan

Singh(Supra) as under

“38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment

Page 23

for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

37. The nature, motive, impact of a crime, culpability, quality of

evidence, socio-economic circumstances, impossibility of rehabilitation are

the factors which the court may take into consideration while dealing with

such cases as was spelt out in Santosh Kumar Satishbhushan Bariyar

v. State of Maharashtra, (2009) 6 SCC 498.

38. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 4

SCC 220, while affirming award of death sentence by the High Court, this

Court noticed the rising crime rate in recent years particularly violent crime

against women. In the said case, this Court reiterated the principle that it

is not possible to lay down any cut and dry formula relating to imposition of

sentence but the object of sentencing should be to see that crime does not

go unpunished and the victim of the crime, as also the society, has the

satisfaction that justice has been done. The said case concerned with the

rape and murder of an 18 year old girl by a security guard of the flat where

she lived. The Court found it to be a fit case for imposition of capital

punishment.

39. This Court in many cases such as Atbir v. Govt. of NCT of Delhi,

(2010) 9 SCC 1, case confirmed the death sentence awarded by the trial

Court as affirmed by the High Court for different reasons after applying the

principles enunciated in the judgments referred to above.

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40. In Shankar Kisanrao Khade v. State of Maharashtra, (2013)

5 SCC 546, this Court noticed aggravating circumstances (crime test) –

mitigating circumstances- (criminal test) and rarest of rare case – (R-R test)

and observed:

“52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society- centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.”

41. This Court in Ramnaresh and others v. State of Chhattisgarh,

(2012) 4 SCC 257, applying the various principles to the facts of the said

case and taking into consideration the age of the accused, possibility of

the death of the deceased occurring accidently and the possibility of the

accused reforming themselves held that the accused cannot be termed as

social menace and commuted the sentence of death to that of life

Page 25

imprisonment (21 years).

42. In the present case, on the question of quantum of sentence the

argument raised on behalf of the appellant is that the accused was young

at the time of commission of offence i.e. 21 years of age, that he had no

intention to kill the deceased and there is no past criminal antecedent.

43. On the other hand, learned counsel for the state contended that it

was a heinous crime and the case of the appellant is similar like the case

of Dhananjoy Chatterjee (supra).

44. We have noticed the case of Dhananjoy Chatterjee (supra). In

the said case accused was a security guard and was responsible for

providing security to the residents of the flats. Instead of that he used to

tease a young girl child of one of the lady residents. On the complaint of

the lady resident, he was transferred. To avenge the same he went up to

the flat of the lady and committed rape on her daughter and then

murdered her brutally. That was a case where the protector of residents

becomes the offender.

45. The case of the appellant is not similar. The Trial Court and the

High Court wrongly held that the case of the appellant is similar to that of

Dhananjoy Chatterjee.

46. In the present case, the circumstantial evidence comes to only one

conclusion that appellant attempted to commit rape and because of

resistance he committed the murder of the deceased. The appellant was

aged about 21 years at the time of offence. Initially when the matter for

confirmation of death sentence was heard by the two learned Judges of the

High Court there was a divided opinion, one Judge confirmed the death

Page 26

sentence while the other acquitted the appellant. It is the other Bench

which affirmed the death sentence. It is not the case of the Prosecution

that the appellant cannot be reformed. In fact the possibility of his

reformation cannot be ruled out. There is no criminal antecedent of the

appellant. The Court has to consider different parameters as laid down in

Bachan Singh (supra) followed by Machhi Singh (supra) and balance

the mitigating circumstances against the need for imposition of capital

punishment.

47. While we apply the various principles to the facts of the present

case, we are of the opinion that considering the age of the accused, the

possibility of reforming him cannot be ruled out. He cannot be termed as

social menace. Further, the case does not fall under the “rarest of rare”

category. We, therefore, are unable to uphold the death sentence.

48. For the reasons aforesaid we are commuting the death sentence of

accused-Lalit Kumar Yadav alias Kuri to that of life imprisonment but affirm

the rest part of the conviction and sentence. The appeal is partly allowed

only with regard to the quantum of sentence.

……………………………………………….J. (A.K. PATNAIK )

……………………………………………….J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, APRIL 25, 2014.

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ITEM NO.1A COURT NO.10 SECTION II (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO(s). 1022 OF 2006

LALIT KUMAR YADAV @ KURI Appellant (s)

VERSUS

STATE OF U.P. Respondent(s)

Date: 25/04/2014 These Appeals were called on for pronouncement of judgment today.

CORAM : HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE R.K. AGRAWAL

For Appellant(s) Mr. Pranesh,Adv.

For Respondent(s) Mr. Gaurav Dhingra,Adv.

Hon'ble Mr. Justice Sudhansu Jyoti

Mukhopadhaya pronounced the reportable judgment of the

Bench comprising Hon'ble Mr. Justice A.K. Patnaik and

His Lordship.

The appeal ____ in terms of the

signed reportable judgment

[RAJNI MUKHI] [USHA SHARMA] SR. P.A. COURT MASTER

(Signed reportable judgment is placed on the file)

LALIT KUMAR YADAV @ KURI Vs STATE OF U.P.

LALIT KUMAR YADAV @ KURI Vs STATE OF U.P.