IMPORTANT POINTS
1. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.
2. If the discrepancies are material it would be safer to err in acquitting than in convicting the accused.

JUDGMENT

Dr. B.S. Chauhan, J.:- These appeals have been preferred against the impugned judgment and order dated 4.1.2008, passed by the High Court of Rajasthan (Jaipur Bench) in D.B. Crl.A. Nos. 1250 and 1749 of 2003 by way of which, the High Court has dismissed the aforesaid appeals and affirmed the judgment and order dated 5.8.2003 of the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur District in Sessions Case No. 19 of 2002 by way of which, the appellant stood convicted for the offences punishable under Sections 302, 376 and 201 of the Indian Penal Code, 1860, (hereinafter referred to as `the IPC’), and was awarded a sentence of life imprisonment alongwith a fine of Rs.1,000/- under Section 302 IPC; 10 years rigorous imprisonment alongwith a fine of Rs.1,000/- under Section 376 IPC, and rigorous imprisonment of 5 years alongwith a fine of Rs.500/- under Section 201 IPC, and in default of depositing such fine, to further suffer rigorous imprisonment for a period of six months. The substantive sentences, however, were ordered to run concurrently.

2. As per the case of the prosecution, the necessary facts related to the present case are as under:

(A) Pooja, a 4 year old girl, went missing on 22.5.2001. Her family members searched for her relentlessly and also reported the matter to the police. She was eventually found lying dead on the roof of a lonely house on 24.5.2001. Rohtash (PW.1), father of the deceased, submitted a written report (Ex.P-1) of the incident at Police Station, Kotputli and upon the receipt of such report, a case under Sections 302 and 201 IPC was registered, and investigation pertaining to the same also commenced. Thereafter, postmortem was performed on the dead body, necessary memos were drawn, and statements of witnesses were recorded. The appellant was arrested on 27.5.2001 and upon completion of the investigation, chargesheet was filed.

(B) The trial court concluded the trial and convicted the appellant under Sections 302, 376 and 201 IPC, vide impugned judgment and order dated 5.8.2003 and awarded the sentence as referred to hereinabove .

(C) Aggrieved, the appellant filed an appeal in the High Court which was dismissed vide impugned judgment and order dated 4.1.2008.

Hence, these appeals.

3. Ms. Vibha Datta Makhija, learned Amicus Curiae, has submitted that the circumstances relied upon by the prosecution have not been satisfactorily established, and that additionally, the circumstances said to have been established against the appellant do not provide a complete chain that is required to prove the guilt of the appellant. There are material contradictions in the depositions of Rohtash (PW.1), Indira (PW.2), Kalawati (PW.3) and Naurang (PW.4), who are father, mother, grandmother and grandfather of the deceased, respectively. Their depositions have wrongly been relied upon by the courts below, as no reliance can be placed on their evidence. Moreover, the statements of the witnesses are self contradictory, and the standard of proof required to convict a person in a case of circumstantial evidence, has not been met either. The law requires, that the circumstances relied upon in support of the conviction must be fully established, and that the chain of evidence furnished by those circumstances must be so complete, so as not to leave any reasonable doubt for a conclusion, consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn, must not only be fully established, but also be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. They must not be capable of being explained by way of any other hypothesis except the guilt of the accused, and when all the said circumstances are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. Thus, the appeals deserve to be allowed.

4. Per contra Ms. Pragati Neekhra, l