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SUPREME COURT OF INDIA
S. Ratnavel Pandian and K. Jayachandra Reddy, JJ.
Jaharlal Das - Appellant
versus
State of Orissa - Respondent
Crl. Appeal No. 276 of 1991
(Arising out of Special Leave Petition (Crl.) No. 1370 of 1990)
Decided on 12-4-1991
Held: It is well-setted that the circumstantial evidence in order to sustain the conviction must satisfy three conditions: (i) the circumstances from which an inference of guilt is sought to be drawn, must be congently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances; taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any ,other hypothesis than that of the guilt of the accused.
(Para 7)
(ii) Indian Penal Code, 1860 - Sections 302 and 376 - Conviction for the offences under - Death sentence - Appeal against - Offence of rape of a girl aged 5 years - Case depending entirely on circumstantial evidence - The evidence is wholly insufficient to bring home the guilt to the accused - A grave and heinous crime has been committed but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. When there is a reasonable doubt about the guilt of the accused, the benefit of the same should go to the accused.
Held: The prosecution has not established this circumstance conclusively. On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence. We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report: Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt. However, when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established, then the other circumstances are hardly sufficient to establish the guilt of the accused. The courts below have also observed that the accused gave a false explanation. According to the prosecution case the accused is supposed to have stated to P. W s. 1 and 6 that he sent away the deceased in a truck. The courts below held that this explanation is false mainly on the surmise that a minor girl could not have come back on her own in a truck. We are not convinced that on this surmise alone we can hold that the accused has given a false explanation. It is not uncommon in villages for children to go about the fields and walk short distances while coming back to the village. In any event the accused had given an explanation that he sent the girl back to the village in a truck and the same cannot be held to be not plausible and therefore false. the genital of the accused mid presence of stains of blood on the wearing apparels and nail clippings. The prosecution wanted to show that because of the penetration, the accused sustained the abrasions on his penis. The Doctor, P.W.8 who examined the accused has stated that he found only two pin-head abrasions on the genital of the accused and on examination he opined that he could not find any recent sign of sexual intercourse and he also added that there was no such sign of having intercourse within one hour of his examination. However, to a court question, P.W.8 stated that as a result of forcible sexual intercourse those abrasions can be possible. We are unable to see as to how this evidence, in any manner, is helpful to the prosecution. When P.W.8 stated that he could not find any sign of sexual intercourse atleast within one hour of his examination then it is only a matter of conjectures as to when the accused had any intercourse. The accused is a man aged 57 years and it is not as if he was, not used to sexual intercourse. In any event the prosecution has not established that the accused had an intercourse on the day of the occurrence. Then the presence of blood in the nail clippings and on the underpant does not also incriminate arid do not connect the accused in any manner with the alleged offences. The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these bloodstains. Even otherwise having given our earnest consideration, we are not able to say that this last circumstance coupled with the circumstance of last seen in the company of the accused amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established. When such a main link goes, the chain gets snapped and the other circumstances, cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of 'may be true'. But there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. The least that can be said in this case is that atleast there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him. (Paras 9 & 10)
Result: Appeal allowed.
JUDGMENT
K. Jayachandra Reddy, J. - Leave granted.
2. This is a case of death sentence. The fact that such a sentence is awarded even in the year 1990 would immediately suggest that the offence involved should be of a grave nature. Yes, the offence is not only grave but heinous and in human.
3. A girl aged five years was a victim of rape and thereafter murder. The sole appellant before us was tried, convicted and sentenced to death by the Sessions Court and confirmed by the High Court. It is a case depending entirely on circumstantial evidence and the obvious contention is that the circumstantial evidence is wholly insufficient to bring home the guilt to thy accused.
4. No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. Invariably in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof. With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced.
5. The deceased Disco alias Sukumari, a girl aged 5 years was the daughter of P.Ws. 1 and 6, the father and the mother who were drummers by caste. They belong to village Badachatra, an interior part of Mayurbhanj District. They had three children and the deceased was the eldest. In the year 1988, during Kalipuja time the accused who was the resident of Tulsibani village about one kilometer away, came to the house of P.Ws. 1 and 6. He mimed their newly barn daughter. He took his meals in their house and went away saying that he would come with the new dresses far the newly barn daughter. Next day i.e. an 9-11-1988 he came to their house in the morning with new dresses. He told the parents that he, would take the deceased with him to Bombay Chhak to get new dresses far the other two children. He took his lunch and went with the
deceased towards Bombay Chhak. Sometime after his departure P.W.6 told her husband P.W. l to proceed to Bombay Chhak as the deceased might be crying. Accordingly P.W.I accompanied by one Sambhu proceeded towards that Chhak. On the way they met one Babuli and asked him whether he bad seen the accused and the deceased to which he replied in the negative. P. W.I came back to the village and sat in the shop of P.W.2 who informed that he had seen the accused going towards village Tulsibani alongwith the deceased P.W.I and Sambhu then went to that village but could not find them there. Thereafter they went to Jharpakharia Police Station and gave a report to the Officer-in-charge P.W. 11 stating that the deceased and the accused have not returned. He made an entry in the station diary. From there P.W.I again went to the Tulsibani Village where a person informed him that he has seen the accused going towards his house P.W.I went there and enquired the accused. He told P.W. l that the deceased had gone back home but P.W.I caught hold of him but the accused squirmed away from his grip. P.W.I, however, again caught him and took him to his village and according to P.W. l, an being questioned the accused confessed to have raped and committed murder of the deceased. The accused is alleged to have painted the place where he had thrown the dead body, whereafter P.W. l and others proceeded in that direction. P.W. 11 the Police Officer also came in a Jeep and took the accused into custody, drew up an F.I.R. and sent the same to the Police Station far registration of a case. The accused is alleged to have led the Police party to the spat where the dead body was lying. P.W.11 found the deceased lying with injuries an her vagina and other parts. He he1d the inquest in the presence of P.W. A and others and sent the dead body for past-mortem P.W. 7canducted the past mortem. He notice dabrasions all aver the body. He also found
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