IMPORTANT POINTS
1. False answer offered by an accused when has attention is drawn to incriminating circumstances would render that circumstance capable to inclupating him. In a situation like such a false answer can also be counted as providing "a missing link" for completing the chain.
2. There are three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself.
3. Identification parades are not primarily meant for the court. They are meant for investigation purposes.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 376-Rape and murder-Appeal against acquittal-Accused raping and murdering four year old girl-Circumstantial evidence-Witnesses deposing that accused was having crying child with him-Evidence of shop keeper from who accused purchased pepperming for appearing girl-Witness identified accused and victim-Place where dead body hidden was shown by accused-Doctors evidence of rape and injuries on genital of accused-Accused known to victim s family-Accused already faced another trial for rape and and murder of 8 year old child-Conviction by Trial Court awarding death stence-High Court acquitting accused holding circumstance proving guit not established-High Court side-stepped reliable and formidable circumstances forming into complete chain and pointing unerringly to irresistible conclusion that child was raped and killed by none other than respondent himself-Judgment of High Court set aside-Though case perliously near region of rarest of rare case Supreme Court refrained from imposing extreme penalty as accused was accquitted by High Court.
       (ii) Identification Parade-Procedure for legality of-Witnesses and persons to be mixed with accused were kept in separate rooms-Witnesses could not see accused from their room-Accused was taken on foot from police station to place of parade-Then usual procedure followed-High Court criticising mode of transporting accused to place of parade foot and not covering face while transit and holding that test identification parade irretriveably vitiated-Unsustainable-Procedure adopted could not be found fault with.
       Held : Ext. 17 is the minutes of the Test Identification Parade conducted by the magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect. Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then the suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. (Para 21)
       If potholes were to be ferreted out from the proceedings of the magistrate holding such parades possibly no Test Identification Parade can escapte from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiatd every Test Identification Parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held. (Para 22)
       The safefuards adopted by PW-2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that the Division Bench niggled on unimportant details and came to the wrong conclusion that the Test Identification Parade was irretrievably vitiated. (Para 23)
       (ii) Indian Evidence Act, 1872-Section 27-Recovery statement-Recovery of dead body incriminating material-Accused pointing out place where dead body was concealed-Presumption in case when accused does not state that it was concealed by him-Three possibilities-One, he himself would have conceased it, second, he would seen somebody else concealing it and third, he would have been told by another about concealment-If accused declines to tell about his knowledge about concealment, Court can presume that it was concealed by accused himself.
       There are three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act. (Para 25)
       (iv) Evidence - Circumstantial evidence-False answer-When can be counted as providing missing link for completing chain.
       In a situation like such a false answer can also be counted as providing "a missing link" for completing the chain. (Para 26)

JUDGMENT

Thomas, J. -A gory episode is narrated in this case the gravamen of which is a grisly prepetrated rape and murder of a four year old female child. The rapist had abducted the child from her house and decoyed her to a field at Arvi (in Vardha district of Maharashtra State). After the rape and murder the mangled body of the child was dumped in the field where pulses and cotton were cultivated. The man whom the police challaned as a culprit was convicted and condemned to death penalty by the sessions court but he now stands exonerated as a Division Bench of the High Court of Bombay proclaimed him not guilty. The State of Maharashtra is not prepared to reconcile with the clean chit granted to him by the High Court and hence this appeal by special leave has been filed by the State.

2. Sneha is the name of the little child who was subjected to the beastly sexual ravishment. She was endearingly called Gangu by her kith and kin. She had a brother younger to her and the children were living in the family house which is presumably a joint family house. The life of Gangu was snuffed off on 22.12.1995.

3. As per the prosecution version the accused (who is respondent in this appeal) was already an accused in another case facing an allegation that he committed rape and murder of one eight year old female child by name Ujawala. While he was in jail in connection with that case he came into accquiantance with a prisoner (PW6- Sanjay) who is the brother of Gangu s father (PW5 - Rameshwar). Both of them were later released from prison. (We are told that respondent was acquitted in that case).

4. After such release from jail respondent visited Sanjay s house, and subsequently he paid frequent visits to the said house. During such visits he made himself familiar to Gangu. On 22.12.1995 respondent went to that house and when he was told that Sanjay had gone out, he left the house. Sneha was then playing near the gate of her house. Respondent would have moved away by alluring the little child to go with him. The fact remains that after respondent left the house in the afternoon no one in that house had seen Gangu alive.

5. Respondent took Gangu to the shop of PW8 Mahadeo, and later to the shop of PW14 Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death.

6. As Gangu was not seen in the house or its precinets till nightfull the panic-stricken members of her family began to make hectic searches for her. As all such efforts failed her uncle Raju went to the police station and reported that Gangu was missing from that house. Next morning her father Rameshwar (PW-5) went to the police station and lodged Ext. 22 - compliant in which he expressed strong suspicion against the respondent regarding the disappearance of his child.

7. Respondent was arrested on the evening of 23.12.95. During interrogation the police came to know that dead body of the child was concealed in a farm. Though a search was made in the night to find out the spot where the body was concealed it did not fructify due to darkness. Hence the police resumed the search operation on the next morning and the spot was pointed out by the respondent wherefrom the dead body of Gangu was traced out.

8. When autopsy was conducted on the body by two doctors of the local hospital a woeful picture of sexual molestation was etched by them. Ext. 68 (Post-mortem Report) contains the data, inter alia, that the vagina was torn down at the perinial region by 1" with irregular lacerations and a fleshy torn portion was found protruding out therefrom. Contusions and abrasions on the labia majora of both sides besides swelling were also noticed by the doctor. There where number of constusions and abrasions on her face also. Dr. Avinash S. Lawhale, Medical Superintendent and Dr. Pathoda, Medical Officer of Rural Hospital, Arvi, District Wardha, after completing the jointly conducted autopsy reported

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1999 Supreme(SC) 1487

Cases Referred (3)