Important Point
The Appellant cannot be convicted for offences u/s. 302 and 376(2)(f) IPC on weak circumstantial evidence, although the offence is gruesome and revolts the human conscience.

Headnote:Indian Penal Code, 1860—Sections 302 and 376(2)(f)—Offence of murder and rape of a girl of 5 years—Conviction based on circumstantial evidence—Circumstance of last seen together not believable—Abnormal conduct of the accused not cogent and convincing—Recovery of under wear and baniyan of doubtful nature —Plea of alibi not apparent—Absconding of accused not established —Conclusion—Acquittal—Appeal allowed—Case law referred—(Evidence Act, 1872—Section 27—Cr. P.C. 1973—Section 313).
       Held : The fact remains that the testimony of Shalu, PW7 aged 4 years, even if taken at its face value, does not constitute such a circumstance as to draw an incriminating inference against the accused and connect him with the crime. (Para 13)
       Any person even if innocent and not connected in any way with a gruesome crime which had recently occurred and was talk of the town, if called by police and interrogated as a suspect, would be scared and be apprehensive of the likelihood of his being implicated in the crime. Placed in such situation if a villager, unaware of the law, happens to ask a person, who he feels knows the things better than what he himself does, as to what would be the period of incarceration to be suffered by any person for such an offence the impulse for inquiry may be outcome of a feeling of nervousness or mere inquisitiveness; such an enquiry is not necessarily suggestive of the working of a criminal mind. (Para 16)
       In the present case the age of the accused was about 21 years at the time of the incident. On his arrest he was subjected to medical examination and found to be a potent and capable person. Presence of semen stain on underwear, assuming that the underwear belonged to the accused though there is no evidence adduced in this regard, is not by itself an incriminating piece of evidence connecting the accused with the crime in question. So also the discovery of ‘B’ group blood-stain on the underwear cannot be treated as an incriminating piece of evidence against the accused connecting him with the crime because there is no evidence that the underwear belonged to the accused and further the possibility of the underwear being stained with the blood of the person to whom it belonged, or the accused if he was wearing it has not been ruled out. (Para 19)
       Denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not, by any stretch of reasoning or logic, amount to pleading alibi. We are clearly of the opinion that the accused-appellant has not taken a plea of alibi and therefore the question of finding it false, and then drawing an inference adverse to him, does not arise at all. (Paras 21 & 22)
       If the accused was arrested at Behror there is no reason why the memo of arrest should not have been prepared at village Behror. At least this fact should have been mentioned in the memo of arrest even if the same was prepared at village Kotputli. Secondly, Harish Chand Sharma himself states that between 19.3.1991 and 25.3.1991 the accused was called several times at the police station and on 21.3.1991 itself he was called twice in a day. Thus, he was always available to the police. Kalu Ram, PW5, accompanied by a friend Santosh, PW9, had gone to see a movie in cinema talkies Heera-Moti two days after the date of the incident and there the accused was present on his duty. There is no evidence adduced by the prosecution to hold that soon after the date of the offence the accused was found missing from his residence or the place of his employment and was not available, though searched, at the place or places where normally he ought to have been. Hence, it could not have been held that the accused was absconding. (Para 23)
       Held consequently : Thus, none of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixit’s case AIR 1981 SC 765, this Court cautioned - “human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions”. This Court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. The Trial Court and the High Court have proceeded on an assumption of availability of five pieces forging links in the chain of circumstantial evidence out of which we have found, as stated hereinabove, four of the alleged circumstances not to be pieces of incriminating circumstantial evidence at all. We are left with against him. This is necessary to exclude the likelihood of any innocent having been picked up and branded as culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of ‘beyond doubt’ evidentiary value. The appeals are allowed. Conviction of the accused-appellant under Sections 302 and 376(2)(f) of Indian Penal Code is set aside. He is acquitted of the charges framed against him. He shall be set at liberty forthwith if not required to be detained in connection with any other offence.(Paras 24 to 26)

Judgment

R.C. Lahoti, J.—The accused-appellant has been held guilty of offences punishable under Section 302 and Section 376(2)(f) of Indian Penal Code. The trial Court sentenced the appellant to death under Section 302 IPC and to undergo rigorous imprisonment for life and pay a fine of Rs.10,000/-, in default of payment to undergo further R.I. for 3 years, under Section 376(2)(f) IPC. While the learned Additional Sessions Judge made a reference to the High court for confirmation of death sentence under Section 366 Cr.P.C., the appellant preferred an appeal putting in issue his conviction and sentence. The criminal reference and the criminal appeal were heard by a division bench of Rajasthan High Court. The two learned Judges, constituting the division bench, differed in their opinion. In the opinion of one learned Judge, the circumstantial evidence, on which rests the prosecution case, was not sufficient to record a finding of guilty against the appellant on any of the charges framed against him. In the opinion of the other learned Judge, the prosecution evidence was sufficient to sustain the conviction, as recorded by the trial Court, though, the case was not one of those ‘rarest of rare cases’ as would warrant death sentence being awarded to the appellant. In view of the difference of opinion, the learned acting Chief Justice assigned the case for hearing by a third Judge under Section 392 of Cr.P.C. The third learned Judge has, on an independent appreciation of evidence, recorded his own findings upholding the conviction of the accused on both the charges framed against him and thus agreeing with one of the two learned Judges constituting the division bench in conclusion. In the result, the High Court has declined the confirmation of death sentence but upheld the conviction on both the charges found proved and dismissed the appeal laying challenge to the conviction subject to modification in the sentence by substituting sentence of life imprisonment for death sentence under Section 302 IPC. The accused-appellant has filed this appeal by special leave.

2. Kumari S, a young child aged about 5 years, was last seen at about 4 p.m. on 18th March, 1991 and thereafter she did not return home. At about 7 a.m. on 19th March 1991, Kishori Lal, PW 4 informed BD (PW2), the unfortunate father of S, that dead body of a girl was lying near Mohalla Basera on the outskirts of village Kotputli. BD rushed to the place only to find that the dead body was of none else than his own daughter S. Blood was oozing out from her mouth and private parts. A noose was also found around her neck. At 7.25 a.m. on 19.3.1991 first information report was lodged by BD at police station Kotputli. Offence was registered under Sections 302 and 376 IPC. The investigation commenced. The dead body was sent for post-mortem examination which was performed at 9.30 a.m., on the same day, by a medical board of three doctors. It was found that the victim was brutally ravished and thereafter killed. According to the medical opinion the probable cause of death of S was shock produced due to vaginal trauma and rupture of post-fornix along with asphyxia due to ligature around the neck. All injuries found on the person of the victim could be around 6 to 24 hours old prior to the time of post-mortem examination. The vaginal injuries, clotted blood and injuries to post-fornix were indicative of rape having been committed on the victim. The clothes were removed from the dead body and seized. Slides of vaginal swap were prepared for cyto-chemical analysis for blood and seminal stains. The forensic science laboratory confirmed presence of Group-B blood on the clothes of deceased.

3. The accused was arrested on 3.4.1991 on suspicion. On 4.4.1991, he was medically examined. There was no injury on his private parts or on any other part of body. The clothes on his person did not have any blood or seminal stains. He was a grown up male of 21 years and capable of performing sexual i

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Important PointThe Appellant cannot be convicted for offences u/s. 302 and 376(2)(f) IPC on weak circumstantial evidence, although the offence is gruesome and revolts the human conscience.

Cases Referred (3)

Important Point
The Appellant cannot be convicted for offences u/s. 302 and 376(2)(f) IPC on weak circumstantial evidence, although the offence is gruesome and revolts the human conscience.