JUDGMENT

Ved Prakash Vaish, J. The appellant Bindadin challenges the correctness of the judgment dated 25.5.1998 in Sessions case No.17/96 arising out of FIR No.47/93 registered at Police Station Anand Vihar whereby he has been convicted under Section 302/376 Indian Penal Code, 1860 (IPC). Vide order on sentence dated 26.05.1998, the appellant has been sentenced to undergo life imprisonment and to pay fine of Rs.10,000/-, in default he is to undergo further rigorous imprisonment for six months under Section 302 IPC and to undergo rigorous imprisonment of ten years and a fine of Rs.5,000/- and in default to further undergo rigorous imprisonment for another three months under Section 376 IPC. Both the substantive sentences shall run concurrently but the sentences in default shall run one after the other after the expiry of the period of substantial sentences.

2. The allegations against the appellant/accused are that on 13.2.1993 at House No.33, Dayanand Vihar, Delhi, he committed rape and murder of `X' (assumed name), aged about 19 years. The prosecution examined as many as 21 witnesses to substantiate the charges. In his statement under Section 313 Cr.P.C., the appellant pleaded false implication. He, however, did not prefer to lead evidence in defence. On appreciating the evidence and considering the rival submissions of the parties, learned Trial Court vide impugned judgment held that appellant is the perpetrator of the crime and sentenced him. Being aggrieved, the present appeal has been preferred.

3. Learned counsel for the appellant submitted that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error by relying upon the testimonies of Shanti (PW-1) and Asha (PW-2), who were interested witnesses. There was no direct evidence against the appellant and the prosecution case is entirely based on circumstantial evidence. The Trial Court overlooked the fact that the appellant had already left the job as Chowkidar of the said house before the incident and, therefore, there was no possibility that the appellant could be involved in the crime. Moreover, prosecution did not establish that the appellant was present in the house. The complainant-Sharwan Kumar (PW-4) himself was a primary suspect and being affluent and well off, he was instrumental in the arrest and implication of the appellant. Further, the incident had occurred in the house of the complainant (PW-4). There was no evidence that the victim was seen going in the appellant's room any time. No independent witness from the public was produced. Vital discrepancies and contradictions in the testimonies of the prosecution witnesses regarding the manner in which the appellant was arrested and clothes were recovered from his room were ignored. Semen spots were not found on the victim's clothes.

4. We have considered the submissions made by the learned counsel for the appellant and Additional Public Prosecutor for the State and have carefully examined the records.

5. At this stage, it would be relevant to notice the five golden principles, which have to be kept in mind while examining cases of circumstantial evidence as elucidated by the Supreme Court in Sunder @ Sundarajan vs. State by Inspector of Police, (2013) 2 Scale 204. These are as under:-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra : 1973 CriLJ 1783 where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague co