IMPORTANT POINT
The appellant is rightly convicted for raping a young female child of 11 years age, murdering her and dishonestly appropriating silver ornaments of deceased child on circumstantial evidence, recoveries, dishonest answers and other strong circumstances which connect the appellant with offences under Sections 376(2)(f), 302 and 404 IPC beyond doubt.

Headnote:Indian Penal Code, 1860-Sections 376(2)(f), 302 and 404-Offences under-Appellant convicted under on circumstantial evidence-Confirmed in appeal by High Court -Appeals against to Supreme Court-Circumstantial evidence-Evidence Act, 1872-Section 114-Recovery of (i) Silver ornaments worn by victim-(ii) Weapon-(iii) Clothes -Other strong circumstances-Whether connect the appellant with offences charged? (Yes)-Result-Appeals dismissed-Case law discussed on circumstantial evidence.
       Held : A perusal of the judgment of the trial Court and of the High Court shows the following pieces of incriminating circumstantial evidence having been found proved so as to hold the accused guilty of the offences charged:-
        (i) Recovery, on the information given by the accused and on his pointing out and producing, of kuralias belonging to the deceased and which she was wearing on the date of the occurrence;
        (ii) recovery of axe, stained with human blood, on information given by the accused;
        (iii) presence of human blood and semen stains on the chaddi (longish underwear) of the accused;
        (iv) presence of marks of injury (two abrasions on his person; and
        (v) presence of blood stains on dhoti, baniyan and bush-shirt of accused. (Para 3)
       Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction. (Para 12)
       A review of several decisions of this Court, some of which we have cited hereinabove, leads to the following statement of law. Recovery of stolen property from the possession of accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisfied: (i) The offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as an integral part of the same transaction; (ii) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence; (iii) availability of some piece of incriminating evidence or circumstance, other than mere recovery of the articles, connecting the accused with such other offence; (iv) caution on the part of the Court to see that suspicion, howsoever strong, does not take the place of proof. In such cases the explanation offered by the accused for his possession of the stolen property assumes significance. Ordinarily the purpose of Section 313 of Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests of circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do. (See Earabhadrappa vs. State of Karnataka, para 13 (supra), Gulab Chand vs. State of M.P., para 4 (supra). (Para 15)
       In the case at hand a little before the probable time of commission of the crime the accused was seen near the place of occurrence. We should not be misunderstood as holding the evidence of availability of the accused near the place of occurrence and his passing on a dantli (sickle) to a young girl-child as evidence of last seen together . We are only holding the presence of the accused near the place of occurrence a little before the time thereof and his having seen the likely victim of the crime thereat. The recovery of kuralias worn by the deceased was made at the instance of the accused and there is a time lag of just 2 days between the offence and the recovery. An axe was recovered on an information given by the accused which is found to be stained with human blood on examination by forensic science laboratory. The axe had mud, pieces of bone and shreds of flesh and fat on it at the time of recovery, as deposed to by the witnesses and perception of which facts needs no expertise. Clothes of the accused were recovered on being produced by him from his house. The four clothes were bundled up in a piece of cloth and kept hidden in an earthen pot. The manner in which the clothes were kept is not one in which the wearing apparels are ordinarily kept in the house. All these clothes were found to be stained with mud and human blood. The chaddi (underwear) was having stains of blood and semen -both. The accused is a bachelor. He had two injuries on his person which could have been caused at or about the time of occurrence. The nature of the injuries was such that they could have been caused either by the scratches of the victim resisting the act of the accused or by the accused coming in contact with rough surface of the ground in the course of commission of the crime. All these circumstances were put to the accused. His only answer to all such circumstances is Galat Hai (i.e., it is false or incorrect). The fact remains that the accused failed to offer any explanation of such circumstance and therefore they can be used as inculpatory circumstances against him and the necessary inferences flowing therefrom used as links in chain of incriminating circumstantial evidence fastening guilt on him. The medical evidence shows that the victim girl was raped, her neck was twisted and she was throttled to kill her. On her death the two legs were chopped off and the kuralias worn by her were removed. The accused was in recent unexplained possession of kuralias. These several criminal acts - rape, killing and theft - were committed in one transaction. The availability of the abovesaid pieces of incriminating circumstantial evidence and their having remained totally unexplained forge a complete chain of incriminating circumstantial evidence so as to fasten guilt upon the accused beyond any reasonable doubt. The silence of the accused supplies the missing link , if any, as held by this Court in the case of State of Maharashtra vs. Suresh (supra). It is not only the recovery of stolen property but also availability of other strong circumstances which have fastened inescapable connectivity of the accused with the offences charged. (Para 19)
       Held finally : For the foregoing reasons we do not find any case having been made out for interference with the judgment of the High Court, confirming the finding of guilty recorded by the Trial Court for the several offences for which the accused was charged and the sentences passed thereon. The appeal is dismissed. (Para 20)

JUDGMENT

R.C. Lahoti, J.- G a young child of 11 years, daughter of PW6, the father and PW7, the mother, resident of a village within the limits of P.S. Shambhupura, Distt. Chittorgarh had gone to fetch fodder from the filed of theirs at about 4 p.m. on 2.9.1992. She did not return back to home until 7 p.m. whereupon an extensive search was launched by the parents, associated with the villagers, who made inquiries not only in the village but also in nearly villages but without any result. Mohan Lal and Chhagan Lal, PW16 and PW23 found the dead body of the missing girl in the field of Udai Lal at about 7 a.m. on 3.9.1992. Udai Lal s field is situated near the field of PW6. They informed the villagers whereupon they assembled in the field of Udai Lal. The dead body was in a bad shape. The neck was broken. There were marks of injury on the neck which appeared to have been twisted. Blood was oozing out from neck and private parts of the body. Her both legs were chopped off from near the ankles and were lying separated near the body. The kuralias (silver ornament worn by girls in the villages) which the deceased used to wear, one in each leg, were missing. The dead body and the chopped off legs were picked up from the field and brought to home. Bhanwar Lal, PW5, was sent to police station to lodge an F.I.R. of the incident. The investigation commenced. Ghaghara (a garment worn by girls on the lower part of the body) which the deceased was wearing, was found to be stained with blood oozing out from vagina and was seized. Post mortem was conducted. According to the facts found and the opinion based thereon, the girl was raped and then killed by throttling. The neck of the deceased was pressed with thumb and fingers. Thumb and finger marks could be visibly seen on the neck. The death was caused by asphyxia. The legs were separated from the body after her death by chopping off with a sharp edged weapon.

2. The accused was arrested shortly after midnight of 3rd and 4th September, 1992. The investigation pointed out to his involvement in the crime. He was challaned and put up for trial. The trial Court held the accused guilty of the offences punishable under Sections 376(2)(f), 302 and 404, IPC. The accused was sentenced to 10 years rigorous imprisonment and fine of Rs. 100/-, in default to undergo additional R.I. for 3 months under Section 376(2)(f), to life imprisonment and fine of Rs.100/-, in default to undergo additional R.I. for 3 months under Section 302 and to 2 years R.I. and fine of Rs.100/- in default to undergo additional 3 months R.I. under Section 404, IPC. The Division Bench of the High Court has maintained the conviction recorded and sentences passed by the trial Court dismissing the appeal preferred by the accused. This appeal has been preferred by special leave.

3. A perusal of the judgment of the trial court and of the High Court shows the following pieces of incriminating circumstantial evidence having been found proved so as to hold the accused guilty of the offences charged:-

(i) Recovery, on the information given by the accused and on his pointing out and producing, of kuralias belonging to the deceased and which she was wearing on the date of the occurrence;

(ii) recovery of axe, stained with human blood, on information given by the accused;

(iii) presence of human blood and semen stains on the chaddi (longish underwear) of the accused;

(iv) presence of marks of injury (two abrasions) on his person; and

(v) presence of blood stains on dhoti, baniyan and bush-shirt of accused.

4. The accused was arrested at 2 a.m., i.e. in the wee hours of 4.9.1992. Soon on his arrest he gave information that an axe and two silver kuralias were kept in the south-east corner of the field of victim s father and he could point out the places. Pursuant to the information so given, the accused led the police, accompanied by Panch witnesses, to the fi

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2001 Supreme(SC) 1524

Cases Referred (7)