Important point
Where one of the circumstances, in case of circumstantial evidence against accused, was not put to the accused in Section 313 Cr.P.C. proceedings, that circumstance cannot be used against the accused.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 376—Rape and murder—Conviction on basis of circumstantial evidence—Legality of—Six circumstances—Only one circumstance that accused visited house of deceased on day of occurrence and entitled her to go to an orchard to pluck flowers proved—Other circumstances that accused left house of informant together, accused and deceased were seen going towards orchard, seen together in field plucking flowers, seen fleeing away in vicinity immediately after alleged occurrence and absconding of accused from his house not proved—Material witness who told informant that accused committed crime not examined—Informant deposed that he visited police station to lodge complaint but investigation officer suppressed that fact—Investigating officer claimed to have received secret information about occurrence—Prosecution case suffered from vice of suppressio veri on material point—Prosecution case showed circumstances complicity of accused with crime became unworthy of credence—Conviction and sentence set aside. (Paras 9 to 21)
       (ii) Criminal Trial—Circumstantial evidence—Appreciation of—Conviction on basis of circumstantial evidence—When permissible.
       It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence the whole endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. If the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt. (Para 5)
       (iii) Code of Criminal Procedure, 1973—Section 313—Examination of accused—Circumstantial evidence against accused—Circumstance never put to accused in proceedings under Section 313 cannot be used against accused. (Para 18)
       Result : Appeal allowed.

JUDGMENT

B.N. Agrawal, J.—This appeal by special leave has been preferred against the judgment of Patna High Court confirming that of the sessions court whereby the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to death and to pay a fine of Rs. 5000/- inasmuch as further convicted under Section 376 of the Indian Penal Code and sentenced to undergo simple imprisonment for life and to pay a fine of Rs. 5000/-.

2. The prosecution case in short is that on the morning of 27th July, 1995 at about 5 O’clock the appellant, who was co-villager of Ram Sunder Jha (PW 3), the informant, came to his house on the pretext of taking tobacco from him. At that time, the appellant told Rita Kumari, daughter of the informant, that there were plenty of flowers in the orchard of Shobha Kant Mishra and asked her to go with him to the said orchard stating that he would also help her in plucking flowers and in this way enticed Rita Kumari for going to the said orchard. Thereafter, Rita Kumari went out of the house for plucking flowers followed by the appellant. At 6 A.M., some of the co-villagers came to the house of the informant and intimated him that dead body of his daughter, Rita Kumari, was lying in the jute field of Prabhu Mishra whereupon he along with them and his family members went there and found his daughter lying on the ground and her red undergarment removed from one of her legs. It was also noticed that there were white spots resembling semen around her genital organ and black marks of scratches around both sides of her neck. The flower basket with flowers was found scattered there and her chappals were seen at some distance. The informant and his companions having felt that Rita Kumari was unconscious, lifted and brought her to a nearby well belonging to one Jai Narain Mishra where water was poured on her whereafter only it transpired that she was already dead as she did not regain consciousness. The dead body of Rita Kumari was brought by the informant to his house. Stating the aforesaid facts, fard-beyan of the informant was recorded at his house by the Officer-in-charge of Pratap Ganj Police Station on the same day at 11 A.M. wherein it was also alleged that the appellant enticed her daughter, committed rape upon her and killed her by pressing the neck.

3. During the trial the prosecution examined 10 witnesses in all to prove the circumstances against the appellant as undisputedly there is no direct evidence to show his complicity with the crime. Upon the completion of trial, the appellant having been convicted by the trial court, as stated above, and the said conviction having been confirmed by the High Court, the present appeal by special leave is before us.

4. The circumstances which weighed with the two courts below in convicting the appellant may be enumerated hereunder :

I. The appellant came to the house of the informant on the date of the occurrence at 5 O’ clock in the morning on the pretext of taking tobacco from him, met him and his daughter, Rita Kumari, enticed her to go to the orchard of Shobha Kant Mishra for plucking flowers on Madhu Srawani day for being used by elder daughter of the informant, who was newly married, for performing puja.

II. The appellant left the house of the informant along with Rita Kumari for the orchard.

III. The appellant and the deceased-Rita Kumari were seen going towards the orchard.

IV. The appellant and the deceased were seen in the field of Shobha Kant Mishra plucking flowers.

V. The appellant was seen fleeing away in the vicinity of the jute field immediately after the alleged occurrence.

VI. Immediately after the alleged occurrence, the appellant absconded from his house and surrendered in court only after about a month of the alleged occurrence.

5. It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person’s conviction if it is of such a character that the same is

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Important pointWhere one of the circumstances, in case of circumstantial evi­dence against accused, was not put to the accused in Section 313 Cr.P.C. proceedings, that circumstance cannot be used against the accused.

Cases Referred (4)

Important point
Where one of the circumstances, in case of circumstantial evidence against accused, was not put to the accused in Section 313 Cr.P.C. proceedings, that circumstance cannot be used against the accused.