Vinod Pasi vs State of U.P.

Heard Sri Atul Pandey, learned Amicus Curiae appearing for the appellant and Sri Amit Sinha, learned A.G.A. for the State.

Upon the occurrence of the incident on 20.4.2012, a first information report was lodged on 21.4.2012. As per the first information report, the niece, Lakshmi, of the first informant was raped by the accused Vinod Pasi, behnoi (sister's husband) of the informant. It was stated that the accused was staying with the informant and that on 20.4.2012 at around 05:00 PM, he had taken the victim X with him after enticing her with biscuits. This taking of the victim by the accused and that too by giving of biscuits to her on the way, was seen by the witnesses Ajay Kumar and Shyam Lal. The first information report further states that at around 08:30 AM in the morning, the dead body of the victim X was found. The first information report further mentions that the accused, who was the behnoi (sister's husband) of the first informant, had committed the offence of rape on the victim and thereafter had killed her. Upon a question being asked by the police officials, which was mentioned in the first information report, the informant had stated that the age of the victim was seven years and that the age of the accused was 25 years. Upon the first information report having been lodged, investigation commenced. From the site in question, the plain soil and the soil having blood was collected and a memo of it was prepared as Exhibit Ka-15. The undergarment, which the victim was wearing, was also recovered and a memo of the recovery was marked as Exhibit Ka-16. Thereafter, the inquest report was prepared on 21.4.2012. The inquest had commenced on 21.4.2012 and had concluded on the same day at 12.30 PM. Thereafter the body was sent for post mortem and the cause of death was ascertained to be ante mortem injuries.

In the note of the post-mortem, it was also said that swab from vagina was taken and smear was also prepared. This was sent through the constable concerned for a forensic test to establish the presence of spermatozoa. Also, the injuries on the accused were examined on 21^st of April, 2012 for the purposes of deciphering as to whether he had committed rape. Thereafter, the police had submitted its report and charges were framed by the court under Section 302, 376 and 201 of I.P.C. Upon the denial of charges by the accused, trial had commenced. From the side of the prosecution as many as five witnesses had appeared.

PW-1 was the first informant, Sanjay Kumar Pasi. He had stated that the accused, who was his behnoi and his name was Vinod Pasi, was staying with him at the relevant point of time. He had taken the victim out along with him after luring her with biscuits. This taking of the victim and giving her biscuits was as per PW-1 seen by Shyam Lal (PW-2) and Ajay Pasi (PW-3). When the victim did not comeback home, then inquiries were made from Vinod Pasi himself but he did not tell the informant about the fact as to where he had taken the victim. On the next day at 08:30 AM, Vinod told the PW-1 that if the body was searched in Gau Ghat on the western portion of some temple in the jungle, then it could be recovered. When the first informant went there, he found the dead-body of the victim. He had stated in his examination-in-chief that upon a bare look at the dead-body, it could be said that the victim was raped and thereafter killed. He had stated that he had got the F.I.R. lodged after dictating the same. He had thereafter stated that after the lodging of the F.I.R., he came back home and asked the accused about the whole incident and the accused told him that the victim was lured by him by giving biscuits and thereafter he had committed rape on her.

In the cross-examination, the prosecution witness, Sanjay Kumar Pasi (PW-1), had stated that he was living in a joint family along with his three brothers and mother. One brother was married whereas the younger brother and he himself were not married. Ram Raj, the elder brother of the PW-1, was staying separately from him, while the younger brother, Chandkesh, was staying with him. He had then stated about his occupation and had stated that he was working as a driver in the brick field. He had also stated that at the relevant point of time the accused was staying along with his sister at her mayka and that his sister and Vinod had come around six days prior to the occurrence of the incident. He had thereafter stated that the accused himself had two sons and one daughter. He had stated that on the relevant date, he had comeback home at around 06:00 PM and had met his mother, sister and his bhabhi but the behnoi was not there. When he reached home at 06:00 PM, he had started searching for the victim. However, on the next day, in the forest the victim was found dead. He had also stated that the accused on the relevant date i.e. on the 21^st of April, 2012, had comeback home in the evening at around 05:00 PM and that the entire night he was with him. They were all trying to search out the victim. The cross-examination further continued and he had stated, at page 22 of the paper book, that he had himself seen Vinod Pasi taking the victim out on the 20^th of April, 2012. He had stated that he had not seen himself that the accused had killed the victim but he had stated that he had definitely seen him i.e. the accused taking the victim with him. He had then stated that he could not with any certainty say as to who had seen the dead-body first.

PW-2, Shyam Lal, had been nominated in the F.I.R. as having had actually seen the accused taking the victim with him. This witness mentioned about name of the victim’s mother, Budhni and had stated that the victim was around 5-6 years of age. He had stated that he had himself seen the accused taking the victim after luring her with biscuits. He had seen the victim sitting on his shoulders while they were going past his house. He had then stated that on the next day, the dead-body of the deceased was found at the place where the incident had occurred.

In the cross-examination, he had stated that he was a tailor in the village and that his house was around half a kilometer away from the house of the informant. He had thereafter stated that the accused was married to the sister of the first informant. In the cross-examination, he had further stated that he had never made any effort to search the victim. He had also not gone to the place where the dead-body was found. He had also stated that he had not given any statement before the police and that the police had never called him for the recording of any statement. He had thereafter very categorically once again stated that when Vinod Pasi, the accused, was taking the girl then at that point of time Ajay Kumar Pasi (PW-3) was sitting with him at the house of the PW-2 and both had seen the victim being taken away by the accused.

PW-3, Ajay Kumar, was another person who was nominated in the F.I.R. as having had seen the accused taking the victim. He had stated that he had seen the accused taking the victim after luring her with biscuits etc. In his examination-in-chief, he had stated that the accused had comeback home at around 10:00 to 11:00 PM in the night of the 20^th of April, 2012. He had stated that he had suspected that Vinod Pasi was the only person who could have committed the crime of rape on the victim and thereafter could have killed her.

In his cross-examination, however, he had stated that the incident was of around 10-12 years prior to the date when he was testifying in the Court. He had then stated that the incident was informed to him by the accused himself and then had resiled from the statement of his and had stated that, in fact, nobody had told him. He had stated that in between his house and the victim’s house, there were 2 to 3 more houses and that when he had heard about the incident he was at his own house and till such time as he had heard about the incident, he had absolutely no knowledge about the incident. He then mentioned about some marriage which was being solemnized in the village and stated that he had seen the victim in the marriage also. However, the marriage ceremonies suddenly came to a halt because at 07:00 - 08:00 PM, there was a rumor that the girl victim had disappeared. He then had stated that he had throughout in the night tried to search out the victim. However, the fact that the victim had been murdered was known to him only on the next day at around 08:00 - 09:00 PM. PW-3 further in his cross-examination had stated that the victim was his sister (chacheri bahan). He had categorically stated that on the date of incident, he had not seen the child and the statement which he had made is being reproduced here as under:

PW-4 was Dr. Arun Kumar Srivastava who had stated the manner in which he had conducted the post-mortem and had collected the swab etc.

PW-5 was the Investigating Officer, Mahamaya Prasad Singh, Sub-Inspector. He had stated the manner in which he had taken the statements of all the relevant persons. He had stated that the site plan was actually prepared on the pointing of the first informant. He had also stated the manner in which he had collected all the articles about which the recovery memos had been prepared. He had also stated that he had collected the blood sample of the accused. He had also collected the swabs from the genitals of the accused on 24.04.2012. He had thereafter stated in his cross-examination that it was Sanjay Kumar Pasi (PW-1) who had taken him near the dead-body of the victim and had thereafter narrated the manner in which he had found the dead-body.

The Head Constable, Pramod Kumar, who had proved the chick was produced as a court witness.

Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and at no point of time the accused was confronted with any report of the FSL etc.

Thereafter, the Court of Additional Sessions Judge/ Special Judge (POCSO Act), Room No. 2, Prayagraj, found the accused guilty for the offences under Sections 302, 376 and 201 of I.P.C. and punishment was awarded as a capital punishment. A Reference was sent to this Court being Reference No. 8 of 2025. Along with the Reference a Capital Appeal was also filed by Sri Atul Pandey who represented the accused-appellant, Vinod Pasi.

Sri Atul Pandey, learned Amicus Curiae appearing for the appellant assisted the court in answering the Reference and he also argued the Appeal. Learned counsel for the appellant has made the following submissions:

Sri Amit Sinha, learned A.G.A., in support of the judgment which has been referred by the trial court to us for the confirmation of the capital sentence, has submitted that the eye-witness accounts which have been mentioned as having had seen the accused taking the victim for the last time, could not be brushed aside easily. He has submitted that the PW-2 and the PW-3 had seen the accused luring the victim with biscuits to a secluded place and at that place he had committed the offence. He further submitted that all the evidence if were connected then they would only lead to one conclusion and that was that the accused had lured the victim to a secluded place, committed the crime of rape on her over there and thereafter had murdered her.

Having heard learned counsel for the appellant Sri Atul Pandey, and the learned counsel for the State Sri Amit Sinha, this Court finds that there is no conclusive evidence of the fact that the accused had lured the victim to some secluded place and thereafter had committed the offence of rape on her and had thereafter murdered her.

We find the witnesses of facts i.e. the P.W-1, P.W-2 and P.W.-3 were not, at all, reliable witnesses. The P.W.-1 had not stated in the FIR affirmatively that he had actually seen the accused taking the victim but in the court he had testified that he had witnessed the accused taking the victim alongwith him after he had lured her with biscuits.

The P.W.-2 alongwith Shyamlal had stated that he had seen the accused taking the victim with him and he had witnesses this taking of the victim by the accused while he was sitting along with Ajay Kumar, the P.W.-3. The P.W.-2 cannot be believed in toto as the P.W.-3 i.e. Ajay Kumar had stated very categorically that he had never seen the taking of the victim by the accused and that he was only informed of the incident by some local people and that too on the next day when the dead body was found.

In view of the fact that the P.W.-1 had nominated P.W.-2 and P.W.-3 as those witnesses who had actually seen the taking of the victim by the accused and when this story becomes shaky and unbelievable on account of the analysis of the evidence of P.W.- 2 and P.W.-3, we have no other option but to come to a conclusion that all the witnesses of fact i.e. the P.W.-1, P.W.-2 and P.W.-3 were wholly unreliable witnesses.

We are also of the view that the vaginal swab which was taken from the private parts of the deceased victim was never compared with the genital swab of the accused. This might have been an investigational lapse but it definitely goes to the root of the matter and we cannot venture to convict the appellant/accused on such weak evidence.Thus, for the reasons stated above, we are of the view that the appeal deserves to be allowed.

In view of what has been observed above, the judgement and order dated 15.5.2025 passed by the Additional Special judge, POCSO Act, Court No. 2, Prayagraj, in Sessions Trial No. 605 of 2012 (State vs. Vinod Pasi), Case Crime No. 278 of 2012, U/s 302, 376, 201 IPC, Police Station - Nawabganj, Allahabad, is quashed and set aside. Accordingly, the Capital Appeal is allowed.

Accordingly, the Reference is answered and we give our opinion that the accused be acquitted of the charges levelled against him. The appellant, if he is not wanted in any other case, be released forthwith.

Sri Atul Pandey, learned Amicus Curiae for the appellant is to be appreciated for all the hard work he had done. For the hard work done, we provide that the Legal Services Authority would pay the learned Amicus Curiae a sum of Rs. 25,000/-. The Registrar General to oversee the payment.