Important points
1. Where a case rests squarely on circumstantial evidence, inference of guilt could be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person.2. For delayed examination of certain witnesses during investigation, unless Investigating Officer is categorically asked as to why there was delay, defence cannot gain any advantage.3. In an appeal against acquittal, appellate Court has the power to revise evidence but scope of revision is to be guided by the principle that miscarriage of justice is prevented.4. Offence of rape and murder of six year old child girl falls in the rarest of rare category which calls for death sentence.

Headnote:(i) Indian Penal Code, 1860—Sections 363, 366, 376(2), 302 and 201—Rape and murder of 6 year old girl child—Conviction of appellant based on circumstantial evidence—Circumstances relied upon by the Trial Court were that little before occurrence accused was seen by PW3 and PW5 carrying deceased on a bicycle and he was seen in perplexed state by PW2 near the place from where later on dead body of deceased was found—There was recovery of accused’s under wear and also under garments of deceased which she was wearing at the instance of accused and recovery was treated under Section 27 Evidence Act—High Court set aside conviction on a view that examination of PWs 3 and 5 after long passage of time rendered their version unacceptable and name of accused was no indicated in FIR—State appeal—During trial no question was raised about delayed examination of PWs 3 and 5—Unless Investigating Officer was asked to explain that delay, defence could not gain any advantage—No suggestion to these witnesses was given that they had not seen accused and deceased together—Informant had explained reason for not mentioning name of accused in FIR and High Court ignored to consider it—Impugned order of acquittal was untenable and deserved set aside. (Paras 5, 17 and 23)
       (ii) Criminal Trial—Case based upon circumstantial evidence—Inference of guilt could be justified only when all incriminating facts and circumstances were found duly proved and established and were found incompatible with innocence of accused or guilt of any other person. (Paras 9, 14 and 16)
       (iii) Criminal Trial—Case based on circumstantial evidence—Last seen theory—Where time gap between the point of time when accused and deceased were seen last alive and when the deceased was found dead is so small that possibility of any person other than accused being author of the crime becomes impossible, theory comes into play. (Para 22)
       (iv) Criminal Trial—Delayed examination of witness during investigation—Unless Investigating Officer is categorically asked why there was delay, defence cannot gain any advantage therefrom.
       Held : As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. v. State of Punjab (AIR 1973 SC 1409), Bodhraj @ Bodha and Ors. v. State of Jammu and Kashmir (2002 (8) SCC 45) and Banti @ Guddu v. State of M.P. (2004 (1) SCC 414)]. (Para 18)
       (v) Criminal Procedure Code, 1973—Section 378—Appeal against acquittal—No embargo on appellate Court to revise evidence on which acquittal is based—Paramount consideration of court is to ensure that miscarriage of justice is prevented.
       Held : There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only where there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003(5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17). (Para 24)
       (vi) Indian Penal Code, 1860—Sections 376(2) and 302—Sentence—Accused convicted under on circumstantial evidence and sentenced to death by trial Court—Conviction restored in appeal filed by the State—Keeping in view the judgment in Bachan Singh’s case and Machhi Singh’s case, case in hand fell in rarest of rare category—Death sentence awarded by trial Court was appropriate.
       Held : Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. Anything less than a penalty of greatest severity for any serious crime is thought to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. Considering the view expressed by this Court in Bachan Singh’s case (supra) and Machhi Singh’s case (supra) we have no hesitation in holding that the case at hand falls in rarest of rare category and death sentence awarded by the trial Court was appropriate. (Paras 30 and 31)

Judgment

Arijit Pasayat, J.—Leave granted.

2. One Vishakha @ Akansha (hereinafter referred to as the ‘victim’) who had not even seen six summers in her life lost her life on account of bestial acts of the respondent Satish (hereinafter referred to as the ‘accused’) who allegedly raped her and thereafter murdered her. When the victim went out to school on 16.8.2001, her parents would have never thought in their widest dreams that she would not come back home and would fall victim to the barbaric and inhuman acts of the respondent. Rape is one of the most depraved acts. The iniquitous flagitious act becomes abonimal when the victim is a child. The diabolic act reaches the lowest level of humanity when the rape is followed by brutal murder.

3. In a nutshell the accused faced trial in the following backdrop.

On 16.8.2001 the victim who was studying in Sarvodya Public School had gone to school and did not return at the usual time. On the next day morning her dead body was found in the Sugarcane field of one Moolchand around 6.00 a.m. She was lying in a dead condition and blood was oozing from her private parts and there were marks of pressing on her neck. Report was lodged at the nearly Police Station and the dead body was sent for post mortem examination. Dr. R.K. Gupta (PW-7) conducted the post mortem around 2.00 p.m. on 17.8.2001 and opined that death was within the preceding 24 hours.

4. Three persons claimed to have seen the accused nearby the place of occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW-3) and Kulbhushan (PW-5) claimed to have seen the deceased being carried on a bicycle by the accused who was taking the bicycle with the deceased sitting on the handle thereof. Anil (PW-2) stated that he had seen the accused in perplexed state around 2.00 p.m. near the place from where the dead body of deceased was found. Investigation was undertaken. During such investigation, there was recovery of accused’s underwear as also the undergarment the deceased was wearing. This recovery was treated to be under Section 27 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’).

5. The trial Court found that the circumstances highlighted by the prosecution were sufficient to fasten guilt on the accused. She, therefore, convicted him under Sections 363, 366, 376(2), 302 and 201 of the Indian Penal Code, 1860 (in short the ‘IPC’). The crime was held to be one falling under rarest of rare category. Death sentence was imposed for the offence under Section 302 IPC. Various custodial sentences and fines were imposed for other offences. Since a death sentence was awarded the matter was referred to the High Court for confirmation in terms of Section 366 of Code of Criminal Procedure, 1973 (in short the ‘Code’). The accused preferred an appeal before the High Court. Both the capital sentence reference and the criminal appeal were heard together. By the impugned judgment the High Court set aside the judgment of conviction. It was held that the case rested on circumstantial evidence and the circumstances highlighted by the prosecution did not inspire confidence. Three circumstances were highlighted by the High Court to arrive at the aforesaid conclusions. Firstly, it was held that examination of PWs 3 and 5 after long passage of time rendered their version unacceptable and improbable. The prosecution did not offer any explanation for such delayed examination. Secondly, in the FIR name of the accused was not indicated. Thirdly, presence of the accused nearby the place from where the dead body was recovered, as deposed by PW-2, may be a suspicious circumstance but was not determinative. Accordingly, it was held that prosecution had failed to prove its accusations.

6. In support of the appeals, learned counsel for the State submitted that the approach of the High Court is clearly erroneous both on legal and factual aspects. No question was put to the Investigating Officer (PW-8) regard

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2005 Supreme(SC) 213

Cases Referred (25)