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Sections 376, 302 and 201 of Indian Penal Code - Non- mentioning of Name in FIR - not fatal - Last seen theory proved - Confessional statement of Accused was duly corroborated - Apex court held that Lower courts rightly convicted the accused - dismissed the appeal = CRIMINAL APPEAL NO.592 OF 2010 RAMESH ……APPELLANT Vs. STATE THROUGH INSPECTOR OF POLICE ……RESPONDENT= 2014 - Aug.part - http://judis.nic.in/supremecourt/filename=41800

  Sections 376, 302 and  201 of Indian Penal Code - Non- mentioning of Name in FIR - not fatal - Last seen theory proved - Confessional statement  of Accused was duly corroborated - Apex court held that Lower courts rightly convicted the accused - dismissed the appeal =

Whether the absence of name of the accused in the  FIR  points  towards  the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply  the  last  seen  theory  to
establish the guilt of the accused?
Whether the circumstantial evidence in the  present  case  indicate  towards
the guilt of the accused and  whether  these  evidences  are  sufficient  to
establish the guilt of the accused?
    In the case in hand, the deceased child was taken to  the  backyard  of  the
mill by the accused and the same was seen by PW 5 and PW  12.  The  deceased
child went missing since then and was  found  dead  the  next  morning.  The
accused did not explain why did he take the child to the  backyard.  On  the
other hand, he  confessed  to  his  crime  which  was  corroborated  by  the
recovery of a shawl at the instance of the accused himself in  the  presence
of witnesses. Therefore, in the light of the principle  laid  down  by  this
Court, we are of the opinion that the High Court was  justified  in  holding
the accused guilty of rape and murder of the deceased child. We  accordingly
answer this point in favour of the respondent.
It is true that in the present  case,  there  is  no  direct  evidence
which prove that the rape and murder of the deceased child was committed  by
the  appellant.  There  are  no  witnesses  available  on  record  who  have
testified having witnessed the appellant committing the crime. However,  all
the circumstances point towards the appellant as being  the  author  of  the
crime in the present case.
“5. The mode of evaluating circumstantial evidence has been stated  by  this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1  and  it  is
as follows:

“It is  well  to  remember  that  in  cases  where  the  evidence  is  of  a
circumstantial nature, the circumstances from which the conclusion of  guilt
is to be drawn should, in the first instance, be fully established, and  all
the facts so established should be consistent only with  the  hypothesis  of
the  guilt  of  the  accused.  Again,  the  circumstances  should  be  of  a
conclusive nature and tendency and they should be such as to  exclude  every
hypothesis but the one proposed to be proved. In other words, there must  be
a chain of evidence so far complete as not to leave  any  reasonable  ground
for a conclusion consistent with the innocence of the accused  and  it  must
be such as to show that within all human probability the act must have  been
done by the accused.”

19.   Again, in the present case, the recovery of the body of  the  deceased
child from the same well where PW-8  had  seen  the  accused  appellant  the
previous night  throwing  something  in  the  well  provides  for  a  strong
circumstantial evidence.
The unusual behaviour of the accused
in taking  the
deceased child to the backyard of the mill,  
sending  of  his  employee  for
lunch at the same time and 
also the opening the mill in  the  odd  hours  of
the night the very same evening points towards the guilt of the accused.  
We
answer this point in favour of the respondent.

20.   Since, all the points are answered in favour  of  the  respondent,  we
hold that the High Court was  correct  in  upholding  the  decision  of  the
Sessions Judge in convicting the accused of rape and murder of the  deceased
child. We therefore, sustain the decision of the High Court  and  hold  that
the charges under Sections 376, 302 and 201 of IPC are  proved  against  the
appellant. His sentence of life imprisonment and fine of  Rs.5000/-  and  in
default one year rigorous imprisonment under Section 376, life  imprisonment
and fine of Rs.5000/- and on default, one year rigorous  imprisonment  under
Section 302 and also 3 years rigorous imprisonment  and  fine  of  Rs.1000/-
and on default, rigorous imprisonment of six months  under  section  201  of
IPC is confirmed. All sentences are to run  concurrently.  Accordingly,  the
appeal is dismissed as the same is devoid of merit.
2014 - Aug.part - http://judis.nic.in/supremecourt/filename=41800

                                                           REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.592 OF 2010


RAMESH                                               ……APPELLANT

                                     Vs.


STATE THROUGH INSPECTOR OF POLICE       ……RESPONDENT





                               J U D G M E N T




V.GOPALA GOWDA, J.



      This appeal is filed by the appellant being aggrieved by the  judgment
and order dated 19.02.2008 passed by the Madurai  Bench  of  High  Court  of
Madras in Criminal Appeal (MD) No. 3 of  2007  urging  various  grounds  and
legal contentions and prayed  to  set  aside  the  conviction  and  sentence
awarded against him and acquit him from the charges framed against him.

2.    The brief facts in nutshell  are  stated  hereunder  with  a  view  to
appreciate rival legal contentions urged on behalf of the parties:-

      The prosecution charged the appellant under Sections 376, 302 and  201
of Indian Penal Code. The  appellant  pleaded  not  guilty.  The  trial  was
conducted  on  behalf  of  the  respondent-prosecution  and  in   order   to
substantiate the  charges,  it  examined  22  witnesses  and  relied  on  27
exhibits and 4 material objects. The trial court on the  basis  of  evidence
adduced by the prosecution has examined the appellant under Section  313  of
the Cr.P.C. regarding incriminating circumstances found in the  evidence  of
the  prosecution.  The  trial  court  recorded  the  finding  of   fact   on
appreciation of legal evidence on  record  and  convicted  the  accused  and
sentenced him for life imprisonment holding that the  charges  made  against
him under Sections 376, 302 and 201 IPC were proved and punishment  of  life
imprisonment and payment of fine of Rs.5000/-, in  default  to  undergo  one
year R.I. under Section 376 IPC, life imprisonment and payment  of  fine  of
Rs.5000/- in default to undergo one year R.I. under Section 302  IPC  and  3
years R.I. and payment of fine of Rs.1000/- in default to undergo  6  months
R.I. under Section 201 IPC was awarded  to him and  further  held  that  all
the sentences awarded against the appellant was to run concurrently.

3.    The case of the prosecution is that on 3.11.2005 at  about  11.00  am,
deceased-Seeni Nabra, aged 8 years along with her  grandmother  (PW-3)  went
to the rice mill of the appellant  to  get  the  grains  for  grinding.  But
having seen that the front portion of the mill is  closed,  PW-3  asked  the
deceased-child to go and ask the appellant to open the back portion  of  the
mill and it was opened. Accordingly, PW-3 handed  over  the  grains  to  the
appellant and came  to  the  house  of  a  neighbour.  Sometime  later,  the
deceased-child asked Rs.2/- from PW-3 for  taking  juice.  Accordingly,  she
gave the same to her. Thereafter, the deceased-child went to  the  mill  and
asked the appellant whether the grains were grinded. At that time,  she  was
taken to the back side of the mill by the appellant.  Since,  the  deceased-
child did not return, PW-3 having waited for some time  went  home.   It  is
the further case of the prosecution that the appellant  took  the  deceased-
child to the backyard which was seen by an employee  (PW-12)  of  the  mill.
The appellant permitted PW-12 to go for lunch  and  PW-12  left  for  lunch.
Then,  the  accused  committed  rape  on  the  deceased-child  and  due   to
neurogenic shock she died.  Since, the deceased-child did not come back, PW-
3 informed her father (PW-1). Thereafter, PW-1,  PW-3  and  others  searched
for the deceased-child. At about 10.00 pm, PW-6, the owner  of  the  textile
shop situated just opposite to the mill  of  the  appellant  and  the  night
watchman (PW-7) posted  for  security  in  that  area  found  the  appellant
opening the mill unusually at that time. On being questioned, the  appellant
said that since the next day is Ramzan, he opened the mill for  doing  work.
At about 10.15 pm, PW-8, whose house is situated  exactly  behind  the  mill
came to attend the call of nature and at that time, he heard a noise  coming
from the well side and he found the accused  there  and  he  questioned  the
appellant as to what he was doing during  night  hours.  Then,  the  accused
told that since the next day was Ramzan, he was throwing  the  garbage  into
the well. The dead body of the deceased-child was found by PW-4  inside  the
well and having seen the same, PWs 1 to 3 were informed.  PW-1,  the  father
of the deceased-child went over  to  the  respondent-police  station,  where
    PW-20, the Sub-Inspector of Police was on duty. He  gave  the  complaint
(marked as Ex.-P1) to PW-20, the aforesaid Sub-Inspector  on  the  basis  of
which, a case came to be registered as FIR No. 146/2005  under  Section  174
Cr.P.C. Ex.-P23 (the FIR) was dispatched to the court.  The  dead  body  was
taken out from the well. The place of occurrence  and  the  dead  body  were
photographed by PW-9 and marked as  M.O.1  (series).  Thereafter,  the  dead
body was sent to the Government  Hospital,  Rameswaram.   The  Inspector  of
Police, Rameswaram (PW-22) on receipt of the copy of the FIR,  proceeded  to
the Government Hospital, Rameswaram and conducted inquest on the  dead  body
of the deceased in the presence  of  the  witnesses  and  panchayatdars.  He
prepared the inquest report marked as Ex.-P24. Then, he gave  a  requisition
to the doctor for conducting post-mortem on the dead body of  the  deceased-
child. The  Doctor  (PW-15)  of  the  Government  Hospital,  Rameswaram,  on
receipt of the requisition, conducted post-mortem on the dead  body  of  the
deceased-child and issued post-mortem report(Ex.-P8) wherein he stated  that
the decease-child would appear to have died within 24 to 48 hours  prior  to
the post-mortem and the death was due to neuorogenic shock. It  was  further
the case of the  prosecution  that  PW-21  took  up  the  investigation  and
recorded the statement of the witnesses. He went to the scene of  occurrence
and made an inspection in the presence of the  witnesses  and  prepared  the
observation mahazar (Ex.-P2) and the rough sketch (Ex.-P25).  After  getting
the medical opinion, the charges were altered to Sections 376 and  302  IPC.
Ex.-P26, the amended FIR was dispatched to  the  court.  On  9.11.2005,  the
appellant was arrested by the investigation officer in the presence  of  the
witnesses. The appellant made confessional statement voluntarily, which  was
recorded in the presence of the witnesses, the admissible part of which  was
marked as Ex.-P3. Following the same, the  accused  took  the  investigation
officer to the Mill and produced the M.O.2 (Shawl) which  was  worn  by  the
deceased-child at the time of the occurrence  and  the  same  was  recovered
under a cover of mahazar.

4.    The  appellant  identified  the  place  where  he  had  committed  the
offence. Then, the Investigation Officer made  an  inspection  and  prepared
Ex.-P5, the observation mahazar and Ex.-P27,  the  rough  sketch.  Following
the same, the appellant was sent for medical examination. PW-14, the  doctor
attached to the Government Hospital, Ramanathapuram, medically examined  him
and issued Ex.-P7, the age certificate. Then, the  appellant  was  medically
examined  by  PW-13,  the  doctor  attached  to  Ramanathapuram,  Government
Hospital and he issued Ex.-P6, the certificate stating  that  the  appellant
is found to be potent. All the material objects recovered from the place  of
occurrence and from  the  dead  body  of  the  deceased-child  as  also  the
material objects  recovered  from  the  appellant  were  sent  for  chemical
analysis by the Forensic Science Department. Ex.-P9, the Chemical  Analyst’s
report and Ex.-P22, the Hyoid Bone report were received.  The  Inspector  of
Police (PW-22) recorded the statement of the  witnesses.  On  completion  of
the investigation, the Investigation Officer filed the final  report  before
the learned Magistrate Court.  The  case  was  committed  to  the  Court  of
Sessions for trial  and  necessary  charges  were  framed.  The  prosecution
examined 22 witnesses and relied on 27 exhibits and 4  material  objects  on
completion of the evidence on the side of  the  prosecution.  The  appellant
was  examined  under  Section  313   Cr.PC   regarding   the   incriminating
circumstances found in the  evidence  of  prosecution  witnesses  which  was
denied by him. The trial court on appreciation of evidence on  record  found
that the appellant is guilty of the charges levelled against him and he  was
convicted and sentenced for the offences as stated above.

5.    Aggrieved by the said order of the learned trial judge, an appeal  was
filed by the appellant before the Division Bench of  Madurai  Bench  of  the
Madras High Court urging  various  legal  contentions  and  questioning  the
correctness of  the  findings  recorded  by  the  trial  court  against  the
appellant and holding that he was guilty of the same. The High Court on  re-
appreciation of the evidence on record did not find any infirmity in  either
factual or legal aspect in the judgment of the  trial  court  and  sustained
the same by passing the impugned judgment. The correctness of  the  same  is
challenged in this appeal  framing  certain  substantial  questions  of  law
urging the following grounds.

6.    It is contended on behalf of the appellant that  the  prosecution  has
failed to comply with mandatory procedures as required under Section  174(1)
and (2) of Cr.PC i.e. non sending of the intimation recorded  under  Section
174(1) and the report under Section 174 (2) of Cr.PC  (reasonable  suspicion
on death) to the nearest Executive Magistrate or  Sub-Divisional  Magistrate
who  is  empowered  to   hold   preliminary   inquest   enquiry   and   such
irregularities  on the  part  of  the  investigating  agency  vitiates   the
entire proceedings under Section 461 of Cr.PC.  Mr.  S.  Mahendran,  learned
counsel for the appellant placed reliance upon the judgment  of  this  Court
in Raj Kumar Singh  v.  State  of  Rajasthan[1]  regarding  not  naming  the
accused in the  FIR  is  fatal  to  the  prosecution  case.  It  is  further
contended that this case is based on the circumstantial  evidence  on  which
the trial court as well as the first appellate court while  considering  the
said evidence on record have relied upon and  convicted  and  sentenced  the
appellant for offences charged against him. Therefore, the benefit of  doubt
is available to the accused which should have been adopted  and  the  courts
below should  have  passed  the  order  of  acquittal.  In  support  of  the
aforesaid submission, he has placed reliance upon judgment of this Court  in
the case of Baldev Singh v. State of Haryana[2]  and further contended  that
first charge of rape on the  appellant  is  not  proved,  automatically  the
second charge  of  murder  under  Section  302  IPC  does  not  survive  for
consideration. This aspect of the matter has not  been  considered  properly
by the courts below. Therefore, the impugned judgment is liable  to  be  set
aside and further strong reliance was placed on the  judgment  in  Raghunath
v. State of Haryana and Anr.[3] in support of the  contention  that  medical
evidence does not support the prosecution case and  hence,  the  benefit  of
reasonable doubt shall go in favour of the appellant.  In  support  of  this
submission he also placed reliance  upon  the  judgment  of  this  Court  in
Devinder Singh & Ors. v. State of Himachal  Pradesh[4].  And  another  legal
ground urged  on  behalf  of  the  appellant  is  that  the  criminal  court
recognizes and accepts the inadmissible  evidence,  therefore,  the  finding
recorded holding both charges proved against him is  erroneous  in  law  for
want of accepting the inadmissible evidence. Therefore, the said finding  is
liable to be set aside. Further reliance was placed on the evidence  of  the
doctor (PW-15) who has stated that no external injuries were  found  on  the
deceased-child. Therefore, the question of death due to neurogenic shock  is
wholly untenable as the same is not supported by the doctor’s evidence.

7.    It is further contended that the alleged recovery of the dead body  of
the deceased-child from the  well  was  required  to  be  corroborated  with
medical evidence. The same has  not  been  proved  by  the  prosecution  and
further  the courts below have mis-directed themselves with  regard  to  the
investigation made by PW-21 and the circumstances placed on  record  on  the
basis of evidence of PWs.-1, 2, 3, 5, 8 and  12  are  nothing  but  improved
versions. Therefore, the courts below should not  have  placed  reliance  on
such evidence to convict and sentence the appellant on  the  basis  of  said
evidence which is not legally justified.

8.    It is the case of the prosecution that  the  courts  below  failed  to
consider the vital evidence of the doctor (PW-15). During  the  examination-
in-chief, the doctor clearly stated that there is no  symptom  on  the  body
which indicated drowning in water and the symptom found on  the  body  could
be that of wrinkling of skin and becoming pale etc. that is why he  has  not
mentioned this fact in his  certificate.  On  the  suggestion  made  to  him
regarding non mentioning of rigor mortis found on the  body,  the  same  was
denied by him. Though, he answered that he has not mentioned  the  same,  in
the post mortem report but he conceded to the approximate time of  death  on
the basis of rigor mortis found in the body and also admitted  that  he  has
not mentioned the external injuries found on the body  as  to  whether  they
were  ante or post mortem in nature. He also suggested that normally in  the
first coitus abrasions, contusions are possible on the vaginal part  but  in
this case they are  all  absent.  Further,  the  courts  below  ignored  the
evidence namely the Police inquest requisition to the doctor for  conducting
post-mortem on the deceased-child. Even on the police  requisition,  it  was
not mentioned that it is the case of  rape  and  murder.  According  to  the
prosecution, the dead body found in the well, only legs were visible  inside
the well, if that is so, there should  have  been  definite  injury  on  the
skull and other limbs but they are all absent in the case in hand  as  could
be seen from the post-mortem report  which  creates  doubt  on  the  alleged
recovery of dead body from the well.

9.    Further, the courts below have failed  to  consider  the  evidence  of
investigation officer. PW-21, who is the  I.O.  in  this  case  has  brought
several divergent facts among the prosecution witnesses which  are  believed
by the courts below  without  proper  analysis  of  the  said  evidence  for
convicting  the  appellant.  According  to  the  investigation  officer,  he
arrested the  appellant  on  9.11.2005  at  Akkalmadam  Bus  stop  which  is
contradictory with the evidence of PW-12, co-labour in  the  mill,  who  had
stated that he and the appellant  were  in  police  custody  from  4.11.2005
onwards. Later, he  was  treated  as  prosecution  witness.  Therefore,  the
alleged arrest of the appellant as stated by  IO  in  his  evidence  is  not
correct and further at the instance of the appellant,  the  material  object
(shawl) alleged to have worn by the deceased was  recovered.  However,  this
fact and identity has not been elicited from any of the witnesses  in  their
examination in chief.  He  said  that  he  examined  the  Sub-Inspector  who
registered an FIR only on 9.11.2005 i.e. after five days  of  the  incident.
It is further stated by him that he  saw  the  body  firstly  at  Government
Hospital mortuary. However, he admitted that if the body is brought  to  the
hospital directly, the particulars were recorded  in  an  accident  register
and immediate intimation would be given to police station.  In the  case  in
hand no such formalities have been complied with by the hospital  authority.
 When PW-21 was questioned with regard to mentioning on  Column  No.  25  in
Ex.-P-21, he admitted that “while going for having juice, somebody  cornered
the girl and molested  her  inside  the  house”.  But,  in  the  post-mortem
requisition, he did not ask to conduct examination as to  whether  any  rape
has been committed on her. At the same time, he is  not  in  a  position  to
explain as to  how  he  has  mentioned  these  particulars  in  the  inquest
proceedings.  He further admitted that  Nazirdeen  (PW-8),  had  alleged  to
have heard noise from the well and seen the appellant going on back side  of
the mill at 10.30 pm. The concerned house is a single room house and he  has
not mentioned either in his observation mahazar or in the rough sketch  that
“the house consists  of  any  backyard  entry,  bathroom  and  latrine”.  He
further admitted that he has not mentioned that there is any backyard  entry
in the Kathanjenna’s house (who is alleged to have seen the body inside  the
well).  He  had  also  further  admitted  that  he  has  not  prepared   any
observation mahazar or rough sketch about the inside of the mill. Though  he
examined the adjacent shop owners but those shops have  not  been  shown  in
his observation mahazar. It is further stated by him that during the  course
of enquiry, PW-1 has not stated that he  did  not  receive  any  information
from his mother in law.  He  further  admitted  that  PW-3  has  not  stated
anything about the appellant who collected things for grinding and  returned
the same.

10.   Further, the courts below have not considered  the  evidence  of  PW-3
who has stated in her second enquiry that her granddaughter’s slippers  were
found in front of Kathun’s  house.  Kathun  Jenna  has  not  stated  in  any
enquiry that she went to close the well with lid  where  she  had  seen  two
legs inside the well. It is further contended that the trial court on  wrong
appreciation of evidence came to the erroneous conclusion on the charges  to
record its finding against the appellant on  the  basis  of  incredible  and
inconsistent circumstantial evidence. The conviction recorded by  the  trial
court for the simple reason that the appellant has confessed that  after  he
ravished the deceased, he threw the body inside the well and to  corroborate
the same the investigation officer has recovered a shawl at the instance  of
the appellant which is not  admissible  unless  the  recovery  of  shawl  is
proved from the other cogent  evidence.  It  is  contended  by  the  learned
counsel that the conviction of the  appellant  is  based  on  the  basis  of
surmises and conjectures, therefore, he has prayed  for  setting  aside  the
conviction and sentence awarded against him.

11.   On the other hand, Mr. M.Yogesh Kanna, the  learned  counsel  for  the
respondent-prosecution  sought  to  justify  the  concurrent  findings   and
reasons recorded on the charges after proper  analysis  and  re-appreciation
of evidence on record by both the trial  court  and  the  High  Court  after
careful examination  of the evidence on record having regard to the  charges
levelled against the appellant. He has placed reliance upon the judgment  in
Raj Kumar Singh (supra) wherein it is stated that not naming the accused  in
the FIR does  not  vitiate  the  prosecution  case  and  he  further  placed
reliance upon the confessional statement of the appellant under  Section  27
of the Evidence Act regarding recovery of the shawl which fact is spoken  to
by PW-1 and he placed reliance upon the  judgment  in  Mritunjoy  Biswas  v.
Pranab Alias Kuti Biswas and Anr.[5]  and  Ramnaresh  &  Ors.  v.  State  of
Chhattisgarh[6] regarding non mentioning of the appellant in  the  FIR  does
not vitiate the prosecution case. The last seen theory of the deceased  with
the appellant support the finding and reasons recorded by the  courts  below
in framing charges against  the  appellant  by  placing  reliance  upon  the
judgment in Budhuram v. State of Chhattisgarh[7].

12.    The  learned  counsel  on  behalf  of  the  prosecution  invited  our
attention to the evidence of the prosecution which  is  based  on  recording
the evidence of PW-12 and medical evidence of  PW-15        with  regard  to
the age of the appellant, his potency for intercourse which  is  established
and  further  the  oral  evidence  supported  by   the   medical   evidence,
particularly, PW-13 and PW-15 justify the conviction  and  sentence  awarded
against the  appellant  on  the  charges  levelled  against  the  appellant.
Therefore, it is urged that the legal submissions urged  on  behalf  of  the
appellant by placing reliance upon the judgments of this  Court   which  are
referred to above do not support the case of the appellant.  Therefore,  the
learned  counsel  of  the  prosecution  urged  not  to  interfere  with  the
concurrent finding of fact which is based on proper  re-valuation  of  legal
evidence on record. The same is supported by medical evidence.  Though  some
evidence is circumstantial evidence, the findings of the  courts  below  are
supported  by  cogent  evidence  on  record.  Hence,  the  learned   counsel
requested for dismissal of  the  appeal  by  affirming  the  conviction  and
sentence awarded against the appellant.

13.   With reference to the above rival contentions urged on behalf  of  the
parties, we have examined very carefully the entire evidence on record  with
a view to find out the correctness of the findings recorded on  the  charges
levelled against the appellant.

14.   Three main points come up for the consideration in the present case:

Whether the absence of name of the accused in the  FIR  points  towards  the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply  the  last  seen  theory  to
establish the guilt of the accused?
Whether the circumstantial evidence in the  present  case  indicate  towards
the guilt of the accused and  whether  these  evidences  are  sufficient  to
establish the guilt of the accused?


Answer to point no. 1

15.   We intend to address each contention separately  and  begin  with  the
first contention of the appellant/ accused that his name did not appear  for
the first time in the FIR and mention of his name was  only  an  improvement
of the first version. It has  been  mentioned  by  the  High  Court  in  the
impugned judgment that the FIR- Ex. P1 initially did not  mention  the  name
of the accused and on the other hand, PW-1, father  of  the  deceased  child
had suspected one  of  his  relatives  for  the  offence.  It  was  however,
revealed after investigation that it was the accused who committed  the  act
and the police in fact was proceeding in the right path. The involvement  of
the accused has been further corroborated by the recovery of  the  shawl  of
the deceased on the basis of the confession of the accused  which  was  made
in the presence of witnesses. We intend to concur with the decision  of  the
High Court that non mentioning of the name in the initial FIR is  not  fatal
to the case of the prosecution. It has been held by this Court in  the  case
of Jitender Kumar v. State of Haryana[8]:-

“16. As already noticed, the FIR (Ext. P-2) had been registered by ASI  Hans
Raj, PW 13 on the statement of Ishwar Singh, PW 11. It is correct  that  the
name of accused Jitender, son of Sajjan Singh, was not mentioned  by  PW  11
in the FIR. However, the law is well settled that merely because an  accused
has not  been  named  in  the  FIR  would  not  necessarily  result  in  his
acquittal. An accused who has not been named in  the  FIR,  but  to  whom  a
[pic]definite role has been attributed in the commission of  the  crime  and
when such role is established  by  cogent  and  reliable  evidence  and  the
prosecution is also able to prove its case beyond reasonable doubt, such  an
accused can be punished in accordance  with  law,  if  found  guilty.  Every
omission in the FIR may not be so  material  so  as  to  unexceptionally  be
fatal to the case of the prosecution. Various factors  are  required  to  be
examined by the court, including the physical and mental  condition  of  the
informant, the  normal  behaviour  of  a  man  of  reasonable  prudence  and
possibility of an attempt on the part of the informant to falsely  implicate
an accused. The court has to examine these aspects  with  caution.  Further,
the court is required to  examine  such  challenges  in  the  light  of  the
settled principles while keeping in mind as  to  whether  the  name  of  the
accused was brought to light  as  an  afterthought  or  on  the  very  first
possible opportunity.

17. The court shall also examine the role that has  been  attributed  to  an
accused by the prosecution. The informant might not have named a  particular
accused in the FIR, but such name might have been revealed at  the  earliest
opportunity by some other witnesses and if the role of such  an  accused  is
established, then the balance may not tilt in favour of  the  accused  owing
to such omission in the FIR.

18. The court has also to consider the fact that the  main  purpose  of  the
FIR is to satisfy the police officer as to the commission  of  a  cognizable
offence for him to conduct further investigation  in  accordance  with  law.
The primary object is to set the criminal law into motion and it may not  be
possible to give every minute detail  with  unmistakable  precision  in  the
FIR. The FIR itself is not the proof of a case, but is a piece  of  evidence
which could be used for corroborating the case of the prosecution.  The  FIR
need not be an encyclopaedia of all the facts  and  circumstances  on  which
the prosecution relies. It only has to state the basic case.  The  attending
circumstances of each  case  would  further  have  considerable  bearing  on
application of such principles to  a  given  situation.  Reference  in  this
regard can be made to State of U.P. v. Krishna Master and  Ranjit  Singh  v.
State of M.P.”


Therefore, the contention of the appellant  that  since  his  name  did  not
appear in the FIR, he is entitled to  acquittal,  is  not  maintainable.  We
accordingly, answer this point in favour of the respondent.

Answer to point no. 2

16.   It is the case of the prosecution that P.W. 3, the grandmother of  the
accused had sent the child to see whether the floor  was  grinded.  However,
when the child did not return for some time, P.W.  3  went  home.   At  this
juncture, there is evidence through PW 5 and PW 12 who were employees  under
the accused that the accused  took  the  child  to  the  backyard  while  he
unusually permitted PW 12 to go for lunch. Further, the  accused  could  not
explain the need of taking an 8 year old child  to  the  backyard.  In  this
aspect of the last seen theory, it has been held by this Court in  the  case
of Kusuma Ankama Rao v. State of Andhra Pradesh[9] as under:

“10. So far as the last-seen aspect is concerned it  is  necessary  to  take
note of two decisions of this Court. In State  of  U.P.  v.  Satish  it  was
noted as follows: (SCC p. 123, para 22)

“22. The last-seen theory comes into play where the  time  gap  between  the
point of time when the accused and the deceased were  seen  last  alive  and
when the deceased is found dead is so small that possibility of  any  person
other than the accused being the author of the crime becomes impossible.  It
would be difficult in some cases to positively establish that  the  deceased
was last seen with the accused when there is a long gap and  possibility  of
other persons coming  in  between  exists.  In  the  absence  of  any  other
positive evidence to conclude that the accused and the  deceased  were  last
seen together, it would be hazardous to come to a  conclusion  of  guilt  in
those cases. In this case there is positive evidence that the  deceased  and
the accused were seen together by witnesses PWs 3 and 5, in addition to  the
evidence of PW 2.”
                                               (emphasis laid by this Court)


In Ramreddy Rajesh Khanna Reddy v. State of A.P. it was noted as follows:
(SCC p. 181, para 27)

“27. The last-seen theory, furthermore, comes into play where the  time  gap
between the point of time when the accused and the deceased were  last  seen
alive and the deceased is found dead is so small  that  possibility  of  any
person other than  the  accused  being  the  author  of  the  crime  becomes
impossible.  Even  in  such  a  case  the  courts  should  look   for   some
corroboration.”


In the case in hand, the deceased child was taken to  the  backyard  of  the
mill by the accused and the same was seen by PW 5 and PW  12.  The  deceased
child went missing since then and was  found  dead  the  next  morning.  The
accused did not explain why did he take the child to the  backyard.  On  the
other hand, he  confessed  to  his  crime  which  was  corroborated  by  the
recovery of a shawl at the instance of the accused himself in  the  presence
of witnesses. Therefore, in the light of the principle  laid  down  by  this
Court, we are of the opinion that the High Court was  justified  in  holding
the accused guilty of rape and murder of the deceased child. We  accordingly
answer this point in favour of the respondent.



Answer to point no. 3

17.   On the date of occurrence, at about 10:00 pm, the accused  opened  the
mill unusually at odd hours. The same was witnessed by  PW  6,  the  textile
shop owner whose shop was situated opposite the mill and also PW 7, who  was
the night watchman. Both had  questioned  the  accused  regarding  this  odd
behaviour to which he answered that since the next day is  Ramzan,  he  came
for grinding the flour. Another strong circumstance was the evidence  of  PW
8 whose house is situated exactly behind the mill. When PW 8  came  out  for
attending the call of nature at 10:15 pm, he heard a  noise  from  the  well
which is situated behind the mill  and  on  seeing  the  accused  proceeding
towards the mill, he stopped the accused and asked as to what he was  doing.
To this, the accused answered that the accused was throwing garbage  in  the
well since the next day is Ramzan. Since the dead body was  found  next  day
from the  well,  circumstantial  evidence  points  the  involvement  of  the
accused in throwing the dead body of the child  in  the  well  the  previous
night.  The High Court  therefore,  is  justified  in  construing  that  the
appellant/accused had kept the dead body in the  mill  and  threw  the  dead
body in the well at about 10:15 pm.

18.   It is true that in the present  case,  there  is  no  direct  evidence
which prove that the rape and murder of the deceased child was committed  by
the  appellant.  There  are  no  witnesses  available  on  record  who  have
testified having witnessed the appellant committing the crime. However,  all
the circumstances point towards the appellant as being  the  author  of  the
crime in the present case. It has been held by  five  judge  bench  of  this
Court in the case of Govinda Reddy & Anr. v. State of Mysore[10] as under:

“5. The mode of evaluating circumstantial evidence has been stated  by  this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1  and  it  is
as follows:

“It is  well  to  remember  that  in  cases  where  the  evidence  is  of  a
circumstantial nature, the circumstances from which the conclusion of  guilt
is to be drawn should, in the first instance, be fully established, and  all
the facts so established should be consistent only with  the  hypothesis  of
the  guilt  of  the  accused.  Again,  the  circumstances  should  be  of  a
conclusive nature and tendency and they should be such as to  exclude  every
hypothesis but the one proposed to be proved. In other words, there must  be
a chain of evidence so far complete as not to leave  any  reasonable  ground
for a conclusion consistent with the innocence of the accused  and  it  must
be such as to show that within all human probability the act must have  been
done by the accused.”


19.   Again, in the present case, the recovery of the body of  the  deceased
child from the same well where PW-8  had  seen  the  accused  appellant  the
previous night  throwing  something  in  the  well  provides  for  a  strong
circumstantial evidence. The unusual behaviour of the accused in taking  the
deceased child to the backyard of the mill,  sending  of  his  employee  for
lunch at the same time and also the opening the mill in  the  odd  hours  of
the night the very same evening points towards the guilt of the accused.  We
answer this point in favour of the respondent.

20.   Since, all the points are answered in favour  of  the  respondent,  we
hold that the High Court was  correct  in  upholding  the  decision  of  the
Sessions Judge in convicting the accused of rape and murder of the  deceased
child. We therefore, sustain the decision of the High Court  and  hold  that
the charges under Sections 376, 302 and 201 of IPC are  proved  against  the
appellant. His sentence of life imprisonment and fine of  Rs.5000/-  and  in
default one year rigorous imprisonment under Section 376, life  imprisonment
and fine of Rs.5000/- and on default, one year rigorous  imprisonment  under
Section 302 and also 3 years rigorous imprisonment  and  fine  of  Rs.1000/-
and on default, rigorous imprisonment of six months  under  section  201  of
IPC is confirmed. All sentences are to run  concurrently.  Accordingly,  the
appeal is dismissed as the same is devoid of merit.




……………………………………………………J.  [DIPAK MISRA]



……………………………………………………J.       [V. GOPALA GOWDA]



New Delhi,                                         August 1, 2014








-----------------------
[1]







       (2013) 5 SCC 722

[2]    (2008) 14 SCC 768
[3]    (2003) 1 SCC 398
[4]    (2003) 11 SCC 488

[5]    (2013) 12 SCC 796
[6]    (2012) 4 SCC 257
[7]    (2012) 11 SCC 588

[8]    (2012) 6 SCC 204

[9]    (2008) 13 SCC 257

[10]   AIR 1960 SC 29



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