IMPORTANT POINT
Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of and as such absence of injuries on body of victim leads to the conclusion anything possible might have happened.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 392-Murder after robbery-Conviction on basis of circumstantial evidence-Accused appellant took victim away from convent where she was employed on false pretext that her mother was seriously ill-Dead body of victim found in railway track runover by train-Jewellery she was wearing were missing-Jewellery recovered at instance of accused-Medical evidence that victim was raped before death-Charge of rape, robbery and murder-Trial Court acquitting accused holding that prosecution could establish only a strong suspicion-High Court convicting accused of all charges on basis of circumstantial evidence-High Court justified in convicting accused-Victim was last seen alive only in the company of accused-Jewellery of victim was recovered from PW 11 to whom accused sold same-Evidence of nuns of convent that accused took her out on pretext that her mother was ill-No explanation as to how accused came in possession of ornaments of deceased-Incriminating circumstances proved guilt of accused-Adamant attitude of total denial of accused without trying to explain or clarify incriminating circumstances-Accused stood self condemned-Falsity of defence plea proved missing link-High Court rightly convicted accused under Sections 302 and 392.
       Held : PWs 5 to 8 are the inmates of the Convent holding different positions therin and all of them identified Mos 1 to 3 as the ornaments belonging to the deceased Gracy and which she was wearing when she left the Convent with the accused. PW 9, the brother of the victim, also identified the jewels. They have also spoken in unison to the other details relevant, which when cumulatively taken up for consideration reasonably as well as with great certainty establish the various incriminating factors against the appellant involving with the crime, which if at all, could be properly and reasonbly be explained only by him. But they remain totally undeciphered and unexplained by the attitude of total denial of everything by the appellant. PW 11 was working as Manager in the Jewellery Shop in question at Angamaly where the appellant was said to have taken MOs 1 to 3, and sold them for Rs. 5,103/-. Before actual sale, the jewellery was weighed and the slip, Ex. P 7, seized from the diary of the appellant, was said to have been prepared and given to him at that time. The worker in the Shop, PW 14, who prepared the slip after weighing the MOs 1 to 3, has also identified the jewels and the slip. PW 12 is the gold platter having his Shop adjacent to the Jewellery Shop in question. Their evidence, though certain discrepancies not so material as to effect their truthfulness are attempted to be pointed out, positively prove that only the accused sold those jewels representing to be that of his wife and money was urgently required to meet some hospital expenses. There is no reason for them to either falsely implicate or depose against the appellant and we see no relevant or valid reason to disbelieve them. The adverse comments made by the trial judge against their evidence merely on account of certain minor discrepancies are neither justified nor those discrepancies could themselves be said to be enough to detract from the truthfulness or genuineness of their deposition. PW 17, a former employee of the accused in his quarry, was shown to have been paid Rs. 2,500/- by the accused and though the prosecution would attempt to connect the same with the sale proceeds of the jewellery of the deceased, PW 17 could not specifically remember the actual date of the said payment. The appellant could not explain how he came into possession of the ornaments belonging to and worn by the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one outside the company of the appellant. (Para 11)
       Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of PWs 11 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of PWs 11 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever. (Para 12)
       The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioning, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - Mos 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands. (Para 13)
       (ii) Indian Penal Code, 1860-Section 376-Rape-Conviction on basis of circumstantial evidence-Legality of-Victim and accused were last seen together-Dead body of victim found in railway track runover by train-Medical evidence of rape before death-Semen detected in under skirts of deceased-Dhoti of accused did not contain stain of blood or semen-No injuries found on vagina/private parts of body or some other parts indicating any use of force-Anything possible might have happened-Facts found proved do not irresistibly lead to only conclusion of guilt of accused-Conviction set aside.
       Held : The charge under Section 376, IPC, is mainly fastened upon the appellant on the last seen together theory. The factum of rape of the deceased is sought to be proved from Ex. P 20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex. P 21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex. P 8, certificate issued by PW 15, the doctor, also showed that the accused appellant was potent. But in the Report, Ex. P 21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have some strong resistance being a grownup lady and in the process, some injuries would have been found on the vagina/private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside. (Para 14)

JUDGMENT

Raju, J.-The appellant, who was able to escape from the long arm of law due to his acquittal by the trial Court was soon made to realise that the sword in the hands of justice never fails to vindicate itself in preserving ultimately law and order in the society when he was indicted for offences under Sections 376, 392 and 302, IPC, and imposed with punishments of imprisonment for life under Section 302, IPC, and rigorous imprisonment for seven years each on the other counts, to run concurrently.

2. The case of the prosecution is that on 16.9.1994 at about 5.30 p.m., the appellant, representing himself to be the husband of one of the sisters of Gracy the deceased went to St. Mary s Convent, Vandoor, where she was employed as Kitchen maiden and on a false pretext that her mother was ill seriously and had been admitted to Medical Trust Hospital, Ernakulam, took her away with the permission of PW 5, the Sister incharge of the Covent at the relevant time. The further case is that the appellant after taking the victim out of the Convent, had her walk along with him by the side of the Railway Line in Koratty and thereafter at a desolate place not only raped and robbed her of her ornaments, but laid her on the Rail track to be run over by the passing train.

3. On 17.9.1994, PW 2, the key man attached to Karukutty Railway Station, found the dead body of a female on the up track railway line and informed PW 1, the Station Master, who, in turn, brought it to the notice of Koratty Police Station as per Ex. P1, on which PW 28, the Head Constable, registered an FIR in Crime No. 166/1994 under the caption "unnatural death". An inquest was held over the dead body and along with the findings in the inquest report, a brown blouse, a white brassier, a brown polyester sari with blue and green design and two under skirts, one blue in colour and the other green were also seized, besides taking photographs of the dead body. The autopsy was done by PW 10, the Lecturer and Police Surgeon attached to the Forensic Department of Medical College, Trichur, on 20.9.1994 and he submitted his report under Ex. P 4.

4. While matter stood thus, it appears that PW 7, the mother superior and incharge of the Convent, was informed on 18.9.1994 over telephone by a person claiming to be one Joseph that Gracy would return to the convent in a few days since her mother had recovered. Finding that she did not so return on 5.10.94, PW 8, another Sister and inmate of the convent, went to the house of the victim and learnt that the mother of Gracy was neither ill nor was admitted in any Hospital and that she did not at all return home thereafter. PW 9, the brother of deceased, went and made enquiries in the Convent and when he was asked to come the next day, on 6.10.94 PW 9, PW 26 (Member of the Panchayat), the accused and two other relatives of the deceased went and got other details and even at that stage the accused was said to have been identified by PW 5 as the person who took Gracy from the Convent. PW 9 thereafter lodged a complaint, Ext. P 18, with the Circle Inspector of Police, Pudukkad, and an FIR in Crime No. 281/94 was registered under the caption "man missing". During the course of investigation, PWs 5 to 7 and 9 were asked to meet PW 29, the Sub-Inspector, Koratty Police Station, when they seem to have also identified the photographs to be that of Gracy and that the clothes shown also belonged to her. Statements were also recorded from them. On 9.10.94, PW 30, the Circle Inspector of Police, Chalakkudy, took up the investigation, visited the scene of occurrence, prepared a Mahazar, Ex. P22, and arrested the accused on the same day. As per the statement of the accused, PW 30 seized MO4-diary and Ex. P7, a slip from the accused under Ex. P 6 Mahazar. MOs 1 to 3 were also seized thereafter under Ex. P 5, as per statement Ex. P5(a). The vaginal swab and smear, collected during the course of autopsy as also the clothes taken from the dead body and the dhoti re

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2000 Supreme(SC) 895

Cases Referred (1)