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Tuesday, October 20, 2015

It is a settled law that when prosecution relies on circumstantial evidence, the following tests to be clearly established: (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogent and firm; (ii) Those circumstances should be of a definite tendency unerringly pointing towards 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 (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. The prosecution, however, in the present case, has failed at the foremost to link the accused with the incident. The prosecution has the responsibility to present a chain of events. The accused's culpability could have been established if the blood samples were tested and matched, the recovery of underwear is not proven to be that of the deceased. Otherwise, the recovery was unnatural and did not adduce confidence. One prosecution witness who is an independent witness has stated that the accused had gone to another village on the date of incident. There were material discrepancies in the statements of the prosecution witnesses. The testimonies of the interested witnesses, namely, PW3, PW4, PW5 and PW28 clearly show that they materially improvised from their earlier depositions. The accused also examined two defence witnesses who stated that the accused was attending function in some other village on the fateful night. The High Court went into each and every material aspect of the case, examined at length the deposition of the witnesses and rightly held that the links which are collected by the prosecution have not at all been proved by any cogent evidence and, therefore, it is difficult to hold that it was the accused who committed rape upon the deceased and thereafter killed her. 16. Thus, in the light of the above discussion, we do not find any ground to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL NOS. 1793-1794  OF 2011
      RAM SUNDER SEN                                    APPELLANT
                                   VERSUS


      NARENDER @ BODE SINGH PATEL                  RESPONDENT


                                    WITH


                   CRIMINAL APPEAL NOS. 1795-1796  OF 2011


      STATE OF MADHYA PRADESH                      APPELLANT


                                   VERSUS


      NARENDER @ BODE SINGH PATEL                  RESPONDENT








                               J U D G M E N T
      Pinaki Chandra Ghose, J.
   1. These appeals, by special leave, are directed against the judgment and
      order dated 23.07.2008,  passed by the High Court of Madhya Pradesh at
      Jabalpur  in  Criminal  Appeal  No.11  of  2008  along  with  Criminal
      Reference No.4 of 2007, whereby the High Court  allowed  the  criminal
      appeal filed by the respondent herein and acquitted him  and  disposed
      of the Criminal Reference No.4 of 2007 filed by the  State  of  Madhya
      Pradesh.

   2. The case of the prosecution, stated briefly, is that on 19.05.2004  at
      8.30 A.M., the complainant Ram Sunder Sen lodged a  report  at  Police
      Chowki Kotar stating that  there  was  a  function  in  his  house  on
      18.05.2004 in which his relatives and family members had gathered. His
      daughter Anita, aged about 12 years, after eating meal,  had  gone  to
      sleep at 7.00 P.M. in front of the main gate of his house as there was
      no electricity in the house then. After  the  function  was  over,  at
      about 11.00 P.M., he and his family members  also  slept  there.  Next
      morning  i.e. on  19.05.2004  at  6.00  A.M.,  the  wife  of  Sarpanch
      Vansbahadur informed that the dead body of Anita  was  lying  in  Bari
      near the house of the Sarpanch. She  was  not  wearing  underwear  and
      skirt. There were abrasions on her forehead, nose and face.  Abrasions
      were also found on the neck as well as nearby navel region.  Blood was
      oozing out of private part, cut on the face and  ankles  of  both  the
      legs. FIR against an unknown person was lodged, the dead body was sent
      for post-mortem and investigation was thrown open.  The  Investigating
      Officer recorded the statements of the witnesses. On the basis of  the
      statement of the witnesses, accused Narendra @ Bode  Singh  Patel  was
      arrested who admitted his guilt and  at  his  instance,  blood-stained
      underwears of the deceased as also the accused were recovered  from  a
      pitcher kept behind his house.

   3. After investigation was complete,  Police  filed  challan  before  the
      Court against accused Narendra and  the  case  was  committed  to  the
      Sessions Court for trial. After considering the material on record and
      hearing the counsel for  the  accused,  charges  were  framed  against
      accused Narendra for offence punishable under Sections 302,  376(2)(f)
      and 201 of the Indian Penal Code, 1873 (“IPC” for short). The  charges
      were read over and explained to the accused to which  he  pleaded  not
      guilty and claimed for trial.


   4. The Trial Court by its judgment and order dated 18.12.2007,  convicted
      the respondent accused and  awarded  capital  punishment  to  him  for
      offence punishable under Section 302  IPC.  The  Trial  Court  further
      sentenced him to rigorous imprisonment for life for offence punishable
      under Section 376(2)(f), and rigorous imprisonment for seven years and
      a fine of Rs100, with default clause, for the offence punishable under
      Section 201 IPC. Thereafter, the matter was referred to the High Court
      of Madhya Pradesh for confirmation of  death  sentence  vide  Criminal
      Reference No.4 of 2007. The accused also filed an  appeal  before  the
      High Court, being Criminal Appeal No.11 of 2008. The High Court by the
      impugned judgment allowed the appeal  filed  by  the  accused  on  the
      ground that the prosecution failed to prove the chain of circumstances
      sufficient enough to connect the accused with the alleged offence and,
      consequently, the respondent accused was set at liberty.


   5. Aggrieved by the judgment of acquittal passed by  the  High  Court  of
      Madhya Pradesh, the complainant, who is the father  of  the  deceased,
      has approached this Court by filing Criminal Appeal  Nos.1793-1794  of
      2011. The State of Madhya Pradesh has also challenged  before  us  the
      judgment of acquittal passed by the High Court  vide  Criminal  Appeal
      Nos.1795-1796 of 2011. Learned counsel for  the  complainant-appellant
      has inter alia submitted that the judgment of the Trial Court is  well
      reasoned and well considered. Both the counsel  for  the  complainant-
      appellant and counsel for the State have assailed the reasoning  given
      by the High Court in arriving at a wrong conclusion i.e. the innocence
      of the accused.


   6. The Trial Court convicted the accused respondent on the basis  of  the
      prosecution story relying upon the circumstantial evidence. The law is
      well settled in deciding a case based upon  circumstantial  evidences.
      The prosecution tried to establish  the  following  facts  before  the
      Trial Court :


           (i)   Motive : in order to satisfy the lust,
           (ii)  The recovery of underwear of  the  deceased  as  also  the
           underwear of the accused was made at the instance of the accused
           in his own house,
           (iii)  Human blood was found on the underwear of the accused,
           (iv) The accused came to the house of the deceased at 11.00pm on
           18.05.2004 under the pretext of a Bidi but was  turned  back  by
           the mother of the deceased.
           (v)   Previous acts of the accused to make the deceased  sit  in
           his lap and to  kiss  her  for  which  he  was  rebuked  by  the
           deceased's father reveals his ill-intentions.
           (vi) Accused made an attempt to rape the daughter of  one  Kallu
           Prajapati of Village Golhata prior to the incident,
           (vii)  In the morning of 19.05.2004 the accused was not found in
           the village,
           (viii) Accused was seen around the place of  incident  at  night
           within close proximate time when the incident occurred,
           (ix)  Accused failed to give reasonable  explanation  about  the
           injuries suffered by him.



      The Trial Court held that the above facts proved the prosecution  case
      beyond reasonable doubt and hence the accused was  convicted  for  the
      offence charged. However, the High Court pointed out  serious  lacunae
      in the above-mentioned evidences and hence the  conviction  order  was
      set aside by the High Court giving benefit of doubt to the accused.


   7. We shall now examine  each  and  every  contention  in  light  of  the
      arguments advanced before us. It is settled law that motive is  not  a
      necessary element  in  deciding  culpability  but  it  is  equally  an
      important missing link which can be used to corroborate  the  evidence
      where conviction is based on circumstantial evidence. In  the  present
      case, the motive of the accused was  stated  to  be  'to  satisfy  his
      lust'. For this purpose  the  prosecution  argued  that  although  the
      accused was married and had children, but his wife was living  at  her
      parent's house. The same fact was deposed by Lalli Bai, mother of  the
      prosecutrix  (PW4).  The  Trial  Court  accepted  the  said  argument.
      However, the High Court rightly refused to rely only on the  statement
      of PW4 to establish the said  fact.  Further,  it  is  not  adequately
      established as to for how long the wife of the accused was not  living
      with him. The burden to prove this fact is on the prosecution and  not
      on the accused. The prosecution also tried  to  impute  bad  character
      upon the accused. The High Court rightly held that such evidences  are
      not relevant. Sections 53 and 54 of the Indian Evidence Act, 1972 were
      discussed at length by the High Court and it was held that the accused
      neither tried to prove his previous good character, nor the said  fact
      was in question. An  earlier  instance  of  attempt  to  rape  by  the
      accused, as deposed by the mother of the prosecutrix  (PW4),  Savitri,
      aunt of the deceased (PW5) and Rajendra  Kumar  Sen,  brother  of  the
      deceased (PW6), is not established at any stage of  the  trial.  These
      witnesses are not only interested witnesses but they themselves stated
      that their evidence is hearsay. The prosecution neither  produced  any
      complaint/FIR  nor  any  record  was  shown  that  any  such  incident
      occurred.  Thus,  the  prosecution  squarely  failed  to  impute   bad
      character upon the accused. Further, the motive  is  also  not  firmly
      established against the accused.


   8. The next aspect for consideration before us is the non-explanation  by
      the accused of the injuries sustained  by  him.  As  per  the  medical
      examination, the accused had  certain  abrasions  on  his  wrists  and
      ankles and also some injuries on private part. PW24 - the  doctor  who
      examined the accused, deposed that he examined one  Narendra  S/o  Ram
      Babu. But this doctor failed to identify the accused before the Court.
      The prosecution also failed to produce any evidence in order to  prove
      that the name of the father of the accused is Ram Babu.  The  name  of
      accused's father is Ram Bahore and it is nowhere shown that Ram Bahore
      is alias of Ram Babu. With these discrepancies, the High Court refused
      to accept that the accused was the same person who was examined by the
      doctor PW24.  However, even if it is presumed that  there  could  have
      been error in writing down the name of the father of the  accused  and
      due to long time, the doctor failed to identify the accused,  yet  the
      medical evidences are not clinching enough. The  accused  is  a  young
      man, certain abrasions can be regularly sustained during the day while
      working in and around. Moreover, the  accused  having  worked  in  his
      cousin's wedding might have received the  abrasions.  Medical  opinion
      for explanation to such abrasion is that such abrasion can  occur  due
      to itching also. The  other  injuries  on  private  part,  in  medical
      opinion, could be a result of sexual intercourse with  his  wife.  The
      accused is a married man having children and  it  is  not  established
      that his wife was living away from him. Hence, non-explanation of  the
      above said injuries is not an  incriminating  circumstance  so  as  to
      attribute any criminality upon the accused.


   9. The next incriminating fact  is  the  recovery  of  the  blood-stained
      underwear of the deceased made at the instance of  the  accused,  from
      the house of the accused. However, upon careful  examination,  serious
      doubts are cast upon the incident of recovery. The witnesses  to  this
      seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per the
      deposition of PW9, many doubts are created. He deposed that red colour
      underwear as well as an underwear of accused were seized. However,  he
      did not state as to whom did the red colour underwear belong. He  also
      did not mention the place from where  it  was  recovered  nor  did  he
      mention the manner in which the articles were  seized.   PW22  further
      made  certain  doubtful  revelations  stating  that  at  the  time  of
      recovery, only he, accused and the police were  present.  However,  he
      only confirms the recovery of a red colour  underwear, but  the  place
      and surrounding of the place of recovery were not deposed by PW22. The
      deposition of the above two  witnesses  raises  various  doubts  about
      recovery of material facts. Therefore, the High Court correctly raised
      doubt that it is highly unnatural  that  the  accused  will  keep  the
      underwear in a pitcher in his own house.


  10. The prosecution failed to prove its case  on  one  more  aspect.  Upon
      recovery of the underwear of the accused and  the  deceased,  although
      the same were sent for Serological examination and it was proved  that
      blood was found on the underwear of the  accused,  but  no  blood  was
      found on the undergarments of the deceased. During investigation,  the
      blood sample and  soil  samples  were  collected  from  the  place  of
      incident. However, it is shocking to note that none of  these  samples
      were sent for FSL examination. The said examination  could  have  been
      very useful to establish the identity of the accused. There is thus  a
      serious lacunae in the investigating procedure that a  necessary  test
      was not conducted.


  11. The underwear of deceased vide identification memo Ex.P/14 was put for
      test identification.  PW4 deposed that she identified the underwear as
      the same was torn from the bottom. However, when this witness was  put
      to cross-examination, she deposed that none of  the  underwears  which
      were put for identification, was torn from the bottom. PW4 also stated
      that the  underwear  was  blood-stained.  However,  it  is  proved  by
      serological report that no blood was found on  the  underwear  of  the
      deceased.  Upon  perusal,  numerous  contradictions  appear  from  the
      statements made by PW4, and  serious  doubt  is  raised  not  only  on
      recovery of the undergarments, but also upon the identification test.






  12. The next evidence is the presence of the accused in the village at and
      around the time of the incident against which the accused has  pleaded
      alibi. The prosecution placed on record the testaments of  Ram  Sunder
      Sen, father of the deceased (PW3),  stating that the accused  came  to
      his house 3-4 times during the night of 18.05.2004.  He  also  deposed
      that on 18.05.2004 at 11.00 P.M.  the accused came to  his  house  and
      asked for bidi, but he was turned back by his wife PW4. PW4 also  made
      deposition to this effect. However, upon cross-examination both  these
      witnesses stated that  this fact was told to the police  officer  upon
      examination.  But no such fact is present in their statements made  to
      the police during investigation. The High Court disbelieved  the  said
      fact as there was a deviation from the earlier statement. Further, the
      High Court examined the  statements  of  the  defence  witnesses,  who
      deposed that on the date of  incident,  the  accused  was  present  in
      another village to attend the marriage function  of  his  cousin.  The
      defence witnesses specifically deposed that the  accused  was  present
      during and after the function on 18.05.2004  and  the  accused  stayed
      there at night. It was further deposed that the accused left  for  his
      home only after breakfast. This  also  explains  the  absence  of  the
      accused in his village in the morning of the incident. The High  Court
      rightly relied upon the statement of an independent  witness,  namely,
      Kalawati (PW1) who deposed that the accused was not in the village  on
      the fateful night as he had gone to the  marriage  ceremony  in  other
      village. The said factum of marriage ceremony and  function  in  other
      village has been admitted even by the family members of the deceased.



  13. The prosecution also placed on record  an  incident  alleged  to  have
      occurred a few days prior to the fateful day, when  the  accused  made
      the deceased sit on his lap and kissed her, for which the accused  was
      rebuked and beaten by the father of the deceased.  However,  in  their
      statement to the police, no such fact was deposed by PW3 or PW4 and it
      was only before the Court that the above witnesses stated  this  fact.
      Even if the said fact is presumed to  be  true,  we  concur  with  the
      reasoning of the High Court that mere snugging the deceased  once,  in
      itself, is no ground to connect the accused with the alleged incident.




  14. The prosecution also  adduced  the  testimony  of  Sanjeev  Kumar  Sen
      (PW28), cousin  of  the  deceased,  who  alleged  that  in  the  night
      intervening between 18th and 19th May, 2004 at  about  4:30  A.M.,  he
      woke up to attend the call of nature when he saw  the  accused  coming
      towards his house from the Badi of the house of  Vanshgopal  Sarpanch.
      Very close to that place, the deceased was found dead in the  morning.
      However, upon careful  examination,  it  can  be  gathered  that  this
      witness did not state such an important fact to  the  police  officer.
      Although he alleged that the said fact was known to him yet the report
      was lodged against an unknown person. Further, if the veracity of this
      statement is tested,  it fails  to  adduce  confidence.  PW28  himself
      stated that he saw the accused at 4:30  A.M.,  however,  none  of  the
      details as to the distance, surrounding, etc. were given.  The  source
      of light in which the witness saw the  accused  is  also  not  stated.
      Therefore, the High Court correctly rejected the testimony of PW28.


  15. The present case is, thus, based purely on circumstantial evidence. It
      is a settled  law  that  when  prosecution  relies  on  circumstantial
      evidence, the following tests to be clearly established:
           (i)   The circumstances from which  an  inference  of  guilt  is
           sought to be drawn, must be cogent and firm;

           (ii)  Those circumstances  should  be  of  a  definite  tendency
           unerringly pointing towards 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

           (iv)  The circumstantial evidence in order to sustain conviction
           must be complete and  incapable  of  explanation  of  any  other
           hypothesis than that of  the  guilt  of  the  accused  and  such
           evidence should not only be consistent with  the  guilt  of  the
           accused but should be inconsistent with his innocence.



      The prosecution, however, in the present  case,  has  failed  at  the
      foremost to link the accused with the incident.  The  prosecution  has
      the responsibility  to  present  a  chain  of  events.  The  accused's
      culpability could have been established  if  the  blood  samples  were
      tested and matched, the recovery of underwear is not proven to be that
      of the deceased. Otherwise, the recovery was  unnatural  and  did  not
      adduce confidence. One  prosecution  witness  who  is  an  independent
      witness has stated that the accused had gone to another village on the
      date of incident. There were material discrepancies in the  statements
      of the  prosecution  witnesses.  The  testimonies  of  the  interested
      witnesses, namely,  PW3, PW4,  PW5 and PW28  clearly  show  that  they
      materially improvised from their earlier depositions. The accused also
      examined two  defence  witnesses  who  stated  that  the  accused  was
      attending function in some other village on  the  fateful  night.  The
      High Court went into each and  every  material  aspect  of  the  case,
      examined at length the deposition of the witnesses  and  rightly  held
      that the links which are collected by the prosecution have not at  all
      been proved by any cogent evidence and, therefore, it is difficult  to
      hold that it was the accused who committed rape upon the deceased  and
      thereafter killed her.




  16. Thus, in the light of the above discussion, we do not find any  ground
      to interfere with the judgment passed by the High Court.  The  appeals
      are, accordingly, dismissed.




                                      …....................................J
                                                               (Pinaki
                               Chandra Ghose)








                                       …...................................J
                                                     (R.K. Agrawal)


      New Delhi;


      October 15, 2015

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