'
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 931-932 of 2009
Raj Kumar Singh @ Raju @ Batya ...Appellant
Versus
State of Rajasthan ...Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. 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, learned counsel appearing
on behalf of the State, has opposed the appeals, contending that the
judgments of the courts below do not warrant any interference. The
circumstances relied upon by the courts below stand fully established,
the chain of circumstances is complete, and every link in the said
chain indicates that the appellant alone, could be the accused. The
discrepancies in the evidence of the witnesses are so minor, that none
of the same go to the root of the case and disturb such a conclusion
as mentioned hereinabove. The medical evidence also fully supports
the ocular evidence, and there is no contradiction between the two.
The appellant had approached the family of the victim and asked them
to pay to him, a sum of Rs.2,000/-, as he would bring Pooja back to
them. The injuries found on the person of the deceased and the
appellant-accused co-relate him to the evidence relating to the
recoveries, clearly indicating that the appellant alone is guilty of
the offence. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the
learned counsel and perused the record.
There is no ocular version of the incident and the entire case
of the prosecution is based on circumstantial evidence.
6. The courts below have found the following circumstances
forming an incriminating chain against the appellant:
I. Conduct of the appellant.
II. False explanation given by the appellant.
III. Evidence relating to injuries on the person of the
deceased.
IV. Evidence relating to injuries on the appellant.
7. The depositions with respect to the conduct of the
appellant have been considered by the courts below, and 4 witnesses
(family members of the deceased) have been examined in this respect.
All 4 have deposed that the appellant had approached them and had
asked them for the payment of a sum of Rs.2,000/-, to bring Pooja
home, and this circumstance has thus been held to have been proved
against him.
8. We have also been taken through the evidence of the
witnesses on this aspect.
Rohtash (PW.1), the father of the deceased, has deposed
that they had reported the case to the police in the morning at around
8 O' Clock as Pooja was found to be missing. The appellant had
thereafter arrived at around 4 O'Clock in the evening, and had asked
Rohtash (PW.1), to pay to him, a sum of Rs.2,000/-, stating that he
would bring Pooja back. They had informed the police about this fact
while lodging the FIR. In his cross examination, Rohtash (PW.1)
admitted that the issue of the appellant asking for a sum of Rs.2,000/-
had not been mentioned in the FIR. Then the witness himself
voluntarily deposed, that the sum of Rs.2,000/- was asked for after
the said report had already been written. He further deposed that he
had never seen the appellant before he had asked him for the said
amount of Rs.2,000/-. The witness also deposed that the police had
not made any inquiry from him in this regard, and then made a
statement to the contrary alleging that the police had questioned him
vigorously. It may also be pertinent to mention that in his
deposition, Rohtash (PW.1) was unable to mention the particular date
on which the appellant had approached his family, and had asked for a
sum of Rs.2,000/-.
9. Indira (PW.2), the mother of the deceased, Kalawati (PW.3),
grandmother and Naurang (PW.4), grandfather of Pooja (deceased) had
deposed that Rohtash (PW.1) had registered a report in the police
station at 8 O'Clock about the fact that their daughter Pooja had gone
missing and further deposed that, at about 4 O'Clock in the evening,
on the same day, one boy had come to her and had asked her to pay to
him a sum of Rs.2,000/-, as in return for the same he would bring back
her daughter. Indira (PW.2) identified the appellant in court as the
person who had asked to pay the said sum of Rs.2,000/-. All of them
have further deposed that he had been caught by them and had been
handed over to the police. In her cross-examination, she has admitted
that the appellant had also been beaten up by them, and thereafter,
had been handed over to the police on the same day.
If the evidence of the 4 witnesses on this very issue is
carefully examined, it becomes evident that material contradictions
exist therein, and that further, not only do such material
contradictions exist, but embellishments and improvements have also
been made to the version of events. In the event that the appellant
had come to them and asked them for money, and they had caught hold of
him and called the police, and the police had arrested him, there
exists no rational explanation as regards why such a pertinent fact
has been excluded from the FIR. Secondly, in case the witnesses i.e.
the family members of the deceased had caught hold of the appellant,
why has PW.4, grandfather of the deceased, deposed that the appellant
was shown to them immediately after his arrest, if the witnesses had
in fact caught hold of him, and had themselves handed him over to the
police, the question of the police showing the appellant to them could
not arise.
10. All recoveries were made on 24.5.2001, and the appellant
was identified as the accused only on the ground that four witnesses
i.e. PWs. 1 to 4, had deposed to the effect that he had asked them for
a sum of Rs.2,000/- to bring back their child. No one has explained
how the appellant was actually arrested. PWs.1 to 4 have made
categorical statements to the effect that when the appellant had asked
them for money to bring back the girl, they had caught hold of him and
handed him over to the police on 24.5.2001 itself. However, Gopi Singh
(PW.14), the Investigating Officer has made it clear that the
appellant had been arrested on 27.5.2001 by Ext. P-14, and that there
was no independent witness for the said arrest. An FIR was lodged on
24.5.2001 without naming any person, as the FIR itself reveals that
some one had killed Pooja and had dumped her in the abandoned
dharamshala.
Naurang (PW.4), grandfather of Pooja has deposed that the police
had shown the accused to them as soon as he was arrested. Therefore,
there exists a material contradiction as regards the issue of the
arrest of the appellant.
We have examined the original documents/records. There is over-
writing on the arrest memo and Gopi Singh (PW.14), the Investigating
Officer has admitted in his cross-examination that there did in fact
exist some over-writing underneath the signatures in Ext. D-1, and
that the same, i.e., the over-writing, did not bear his initials.
11. So far as the recovery of the clothes of the accused which
were recovered with blood and semen stains is concerned, there are
numerous contradictions. Hari Singh (PW.9), the constable who made the
said recoveries has deposed that on 27.5.2001, he had made the
recovery of a light brown shirt, a white coloured vest on which there
were blood like stains, one cream coloured underwear on which blood
like stains and semen stains were found. The same were recovered from
the appellant. Therefore, it is clear that the recoveries of the
clothes of the appellant were made on 27.5.2001, and not on 24.5.2001.
If the appellant had in fact been arrested as per the version of
events narrated by PWs.1 to 4 on 24.5.2001, there would be no occasion
for the police to make the recovery of his clothes on 27.5.2001. The
statement of Rohtash (PW.1) was recorded on 27.5.2001, though the same
was shown as recorded on 24.5.2001, and the statement of all other
witnesses was recorded on 27.5.2001. It is thus, difficult to
understand how such a material discrepancy in the evidence has been
ignored by the courts below while convicting the appellant. Exts.P-23
to P-39 are the relevant photographs. They do not bear the signature
of any person and therefore, it is difficult to comprehend how these
material exhibits were sent for FSL report.
The High Court has doubted and in fact disbelieved the recovery of
clothes at the instance of the appellant, and has remarked that the
evidence of such recovery was fabricated and false.
12. The postmortem report (Ex.P-21) revealed the following anti-
mortem injuries on her body:
"Body swollen, Abdomen distended, eyes protruded, lips swollen,
no maggots over body, skin pealed off here and there, mouth semi
opened, bleeding from both nostrils and Lt. ear, PM rigidly
absent due to second stage of relaxer, PM lividity present over
dependent parts of body, back of chest presents and both
buttocks blush black, labia majora swollen and teared, hymen
teared, vaginal walls teared. Rectum protruding through
posterior vagina wall, posterior fornix ruptured.
In the opinion of Medical Board the cause of death was
neurogenic shock, coma due to head injury."
13. As already described, the dead body of Pooja was subjected
to an autopsy by the Medical Board. Dr. Laxman Singh (PW.12) deposed
that the body was swollen, abdomen distended, eyes protruding, lips
swollen, no maggots over body, skin pealed off here and there, mouth
semi opened, bleeding from both nostrils and left ear. PM rigidly
absent due to second stage of relaxation, PM lividity present over
dependent parts of body, back of chest present and both buttocks
bluish black. Labia majora swollen and hymen torn. Vaginal walls torn.
Rectum protruding through posterior vaginal wall, posterior fornix
ruptured. The cause of death was neurogenic shock, coma due to head
injury. The testimony of Dr. Laxman Singh clearly reveals that the
innocent helpless soul Pooja was first subjected to monstrous sexual
assault, and was then mercilessly killed by inflicting injuries on her
head so that there remains no direct evidence against culprit.
14. The appellant after his arrest on 27.5.2001 was medically
examined by Dr. Laxman Singh (PW.12) on May 28, 2001 and vide his
medical examination report (Ext. P-22), an abrasion of the size of 0.2
x 0.2 cm on the corona penis was found. The body of the penis and
glands therein were swollen and tenderness and inflammation was
present. There was nothing to suggest that the appellant was incapable
of indulging in intercourse.
15. The evidence of Daulat Ram (PW.7), the driver had been to
the extent that on 22.5.2001, the appellant had travelled with him to
certain places and had slept in his jeep that night and did not go to
his house, and the appellant could not furnish any explanation as to
why he had slept in the jeep and did not go to his house. Therefore,
his conduct was suggestive of the fact that the offence had been
committed by him.
The trial court also doubted the conduct of the appellant for the
reason that he had slept in the jeep though he was neither the driver
of a jeep nor the servant of Daulat Ram (PW.7), the driver. The High
Court had taken note of the appellant's statement under Section 313 of
Code of Criminal Procedure, 1973, (hereinafter referred to as
`Cr.P.C.'), wherein the appellant had replied that the aforesaid
deposition was wrong, and held that explanation furnished by him was
false.
16. The courts below have proceeded on the basis that there was
no evidence of enmity against any of the witnesses which may lead to
the presumption that the appellant has been falsely implicated in the
case.
17. Suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between something that `may
be' proved and `will be proved'. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of
proof. This is for the reason, that the mental distance between `may
be' and `must be' is quite large and divides vague conjectures from
sure conclusions. In a criminal case, the court has a duty to ensure
that mere conjectures or suspicion do not take the place of legal
proof. The large distance between `may be' true and `must be' true,
must be covered by way of clear, cogent and unimpeachable evidence
produced by the prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be applied. In such
cases, while keeping in mind the distance between `may be' true and
`must be' true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone
of dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided and if the facts
and circumstances of a case so demand, then the benefit of doubt must
be given to the accused, keeping in mind that a reasonable doubt is
not an imaginary, trivial or a merely probable doubt, but a fair doubt
that is based upon reason and common sense. (Vide: Hanumant Govind
Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao
Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad
Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash
Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State
of M.P., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P., AIR
2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC
1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)
18. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773,
this Court observed as under:
"Another golden thread which runs through the web of the
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. This
principle has a special relevance in cases where in the guilt of
the accused is sought to be established by circumstantial
evidence."
19. In R. v. Hodge 168 ER 1163, the court held that before a
person is convicted entirely on circumstantial evidence, the court
must be satisfied not only that those circumstances were consistent
with his having committed the act, but also that the facts were such,
so as to be inconsistent with any other rational conclusion other than
the one that the accused is the guilty person.
20. In Sharad Birdhichand Sarda (Supra), this Court held as
under:
"The facts so established should be consistent only with the
hypothesis of the guilt of the accused. There should not be
explainable on any other hypothesis except that the accused is
guilty. The circumstances should be of a conclusive nature and
tendency. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the accused."
A similar view has been reiterated in Krishnan v. State Represented
by Inspector of Police, (2008) 15 SCC 430; Pawan v. State of
Uttaranchal, etc. etc. (2009) 15 SCC 259; and State of Maharashtra v.
Mangilal, (2009) 15 SCC 418.
21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200,
this Court held, that if the circumstances proved in a case are
consistent either with the innocence of the accused, or with his
guilt, then the accused is entitled to the benefit of doubt. When it
is held that a certain fact has been proved, then the question that
arises is whether such a fact leads to the inference of guilt on the
part of the accused person or not, and in dealing with this aspect of
the problem, benefit of doubt must be given to the accused and a final
inference of guilt against him must be drawn only if the proved fact
is wholly inconsistent with the innocence of the accused, and is
entirely consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as
under:
"Graver the crime, greater should be the standard of proof. An
accused may appear to be guilty on the basis of suspicion but
that cannot amount to legal proof. When on the evidence two
possibilities are available or open, one which goes in the
favour of the prosecution and the other benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt. The
principle has special relevance where the guilt or the accused
is sought to be established by circumstantial evidence.
22. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. & J.W. Johnson & Co. 1872, it has been explained
as under:
"In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though
really not so, seem to be contemporaneous. But the case is very
different when we have to determine upon circumstantial
evidence, the judgment in respect of which is essentially
inferential. There is no apparent necessary connection between
the facts and the inference; the facts may be true, and the
inference erroneous, and it is only by comparison with the
results of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our conclusions. 7
The term PRESUMPTIVE is frequently used as synonymous with
CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict
accuracy, The word" presumption," ex vi termini, imports an
inference from facts; and the adjunct "presumptive," as applied
to evidentiary facts, implies the certainty of some relation
between the facts and the inference. Circumstances generally,
but not necessarily, lead to particular inferences; for the
facts may be indisputable, and yet their relation to the
principal fact may be only apparent, and not real; and even when
the connection is real, the deduction may be erroneous.
Circumstantial and presumptive evidence differ, therefore, as
genus and species.
The force and effect of circumstantial evidence depend upon
its incompatibility with, and incapability of, explanation or
solution upon any other supposition than that of the truth of
the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum."
23. Thus, in view of the above, the Court must consider a case
of circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.
The Court has to draw an inference with respect to whether the chain
of circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
conclusion, that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a
conclusive nature, and consistent only with the hypothesis of the
guilt of the accused.
24. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has
dealt with the doctrine of innocence elaborately and held as under:
"27. Every accused is presumed to be innocent unless the guilt
is proved. The presumption of innocence is a human right.
However, subject to the statutory exceptions, the said principle
forms the basis of criminal jurisprudence. For this purpose, the
nature of the offence, its seriousness and gravity thereof has
to be taken into consideration. The courts must be on guard to
see that merely on the application of the presumption, the same
may not lead to any injustice or mistaken conviction. Statutes
like the Negotiable Instruments Act, 1881; the Prevention of
Corruption Act, 1988; and the Terrorist and Disruptive
Activities (Prevention) Act, 1987, provide for presumption of
guilt if the circumstances provided in those statutes are found
to be fulfilled and shift the burden of proof of innocence on
the accused. However, such a presumption can also be raised only
when certain foundational facts are established by the
prosecution. There may be difficulty in proving a negative fact.
28. However, in cases where the statute does not provide for
the burden of proof on the accused, it always lies on the
prosecution. It is only in exceptional circumstances, such as
those of statutes as referred to hereinabove, that the burden of
proof is on the accused. The statutory provision even for a
presumption of guilt of the accused under a particular statute
must meet the tests of reasonableness and liberty enshrined in
Articles 14 and 21 of the Constitution."
25. In a criminal trial, the purpose of examining the accused
person under Section 313 Cr.P.C., is to meet the requirement of the
principles of natural justice i.e. audi alterum partem. This means
that the accused may be asked to furnish some explanation as regards
the incriminating circumstances associated with him, and the court
must take note of such explanation. In a case of circumstantial
evidence, the same is essential to decide whether or not the chain of
circumstances is complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the
accused, and to seek his explanation as regards the incriminating
material that has surfaced against him. The circumstances which are
not put to the accused in his examination under Section 313 Cr.P.C.,
cannot be used against him and have to be excluded from consideration.
26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100,
this Court observed as under:
"...if there is no evidence or circumstance appearing in the
prosecution evidence implicating the accused with the commission
of the crime with which he is charged, there is nothing for the
accused to explain and hence his examination under Section 313
of the Code would be wholly unnecessary and improper. In such a
situation the accused cannot be questioned and his answers
cannot be used to supply the gaps left by witnesses in their
evidence."
27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582, this
Court held:
"The statement of the accused under Section 313 CrPC is not a
substantive piece of evidence. It can be used for appreciating
evidence led by the prosecution to accept or reject it. It is,
however, not a substitute for the evidence of the prosecution.
If the exculpatory part of his statement is found to be false
and the evidence led by the prosecution is reliable, the
inculpatory part of his statement can be taken aid of to lend
assurance to the evidence of the prosecution. If the prosecution
evidence does not inspire confidence to sustain the conviction
of the accused, the inculpatory part of his statement under
Section 313 CrPC cannot be made the sole basis of his
conviction."
28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this
Court observed:
"Statement under Section 313 of the Code of Criminal Procedure
is taken into consideration to appreciate the truthfulness or
otherwise of the case of the prosecution and it is not an
evidence. Statement of an accused under Section 313 of the Code
of Criminal Procedure is recorded without administering oath
and, therefore, the said statement cannot be treated as evidence
within the meaning of Section 3 of the Evidence Act. The
appellants have not chosen to examine any other witness to
support this plea and in case none was available they were free
to examine themselves in terms of Section 315 of the Code of
Criminal Procedure which, inter- alia, provides that a person
accused of an offence is a competent witness of the defence and
may give evidence on oath in disproof of the charges. There is
reason not to treat the statement under Section 313 of the Code
of Criminal Procedure as evidence as the accused cannot be cross-
examined with reference to those statements. However, when an
accused appears as a witness in defence to disprove the charge,
his version can be tested by his cross-examination."
29. In State of M.P. v. Ramesh, (2011) 4 SCC 786, this Court
held as under:
"The statement of the accused made under Section 313 CrPC can be
taken into consideration to appreciate the truthfulness or
otherwise of the prosecution case. However, as such a statement
is not recorded after administration of oath and the accused
cannot be cross-examined. his statement so recorded under
Section 313 CrPC cannot be treated to be evidence within the
meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC
enables an accused to give evidence on his own behalf to
disprove the charges made against him. However, for such a
course, the accused has to offer in writing to give his evidence
in defence. Thus, the accused becomes ready to enter into the
witness box, to take oath and to be cross-examined on behalf of
the prosecution and/or of the accomplice, if it is so required."
30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,
this Court observed as under:
"It is true that the statement under Section 313 CrPC cannot
be the sole basis for conviction of the accused but certainly it
can be a relevant consideration for the courts to examine,
particularly when the prosecution has otherwise been able to
establish the chain of events...."
31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759,
this Court held:
"The proper methodology to be adopted by the Court while
recording the statement of the accused under Section 313 CrPC is
to invite the attention of the accused to the circumstances and
substantial evidence in relation to the offence, for which he
has been charged and invite his explanation. In other words, it
provides an opportunity to an accused to state before the court
as to what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity and
if he fails to do so then it is for the court to examine the
case of the prosecution on its evidence with reference to the
statement made by the accused under Section 313 CrPC."
32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC
1357, this Court held as under:
"It is a settled principle of law that the obligation to put
material evidence to the accused under Section 313 CrPC is upon
the court. One of the main objects of recording of a statement
under this provision of CrPC is to give an opportunity to the
accused to explain the circumstances appearing against him as
well as to put forward his defence, if the accused so desires.
But once he does not avail this opportunity, then consequences
in law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313 CrPC,
insofar as it supports the case of the prosecution, can be used
against him for rendering conviction. Even under the latter, he
faces the consequences in law."
33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912,
this
Court, while dealing with the issue of the examination of the accused
under Section 313 Cr.P.C. held, that the accused has a duty to furnish
an explanation in his statement under Section 313 Cr.P.C. as regards any incriminating material that has been produced against him.
Such a
view was taken in light of the fact that there existed evidence to
show that the accused had parked his car at the Delhi Airport, and
that the same had remained there for several hours on the date of
commission of the crime in question.
Thus, in light of the fact that
such a fact had been established, and that such circumstances also
simultaneously existed, the accused was expected to explain the reason
for which he had gone to the airport, and why the car had remained
parked there for several hours.
34. In Ramnaresh (Supra), this Court had taken the view that
if
an accused is given the freedom to remain silent during the
investigation, as well as before the Court, then the accused may
choose to maintain silence or even remain in complete denial, even
at the time when his statement under Section 313 Cr.P.C. is being
recorded.
However, in such an event, the Court would be entitled to
draw an inference, including such adverse inference against the
accused, as may be permissible in accordance with law.
While such an
observation has been made, this part of the judgment must be read
alongwith the subsequent observation of the court stating that if he
keeps silent or furnishes an explanation, in both cases, the same can
be used against him for rendering a conviction, in so far as it
supports the case of the prosecution.
35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this
Court held, that
it is equally true that a statement under Section 313
Cr.P.C., simpliciter cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced.
36. In view of the above,
the law on the issue can be
summarised to the effect that statement under Section 313 Cr.P.C. is
recorded to meet the requirement of the principles of natural justice
as it requires that an accused may be given an opportunity to furnish
explanation of the incriminating material which had come against him
in the trial.
However, his statement cannot be made a basis for his
conviction.
His answers to the questions put to him under Section 313
Cr.P.C. cannot be used to fill up the gaps left by the prosecution
witnesses in their depositions.
Thus, the statement of the accused is
not a substantive piece of evidence and therefore, it can be used only
for appreciating the evidence led by the prosecution, though it cannot
be a substitute for the evidence of the prosecution.
In case the
prosecution's evidence is not found sufficient to sustain conviction
of the accused, the inculpatory part of his statement cannot be made
the sole basis of his conviction.
The statement under Section 313
Cr.P.C. is not recorded after administering oath to the accused.
Therefore, it cannot be treated as an evidence within the meaning of
Section 3 of the Evidence Act, though the accused has a right if he
chooses to be a witness, and once he makes that option, he can be
administered oath and examined as a witness in defence as required
under Section 315 Cr.P.C.An adverse inference can be taken against the accused
only and only
if the incriminating material stood fully established and the accused
is not able to furnish any explanation for the same. However, the
accused has a right to remain silent as he cannot be forced to become
witness against himself.
37. We have considered the case in the light of the aforesaid settled
legal propositions and reached the following inescapable inferences:
I. Kalawati (PW.3), grandmother of the deceased Pooja, has stated
that Indira (PW.2), mother of the deceased Pooja, had removed
her silver Kada and had placed it near Pooja. The said Kada has
however, not been seized from either the place of occurrence,
from their cart, or from the appellant.
II. Witnesses PW.1 to PW.4 have submitted, that the pant, shirt,
vest, brief and shoes of the appellant were found lying near the
dead body of Pooja. This statement has been disbelieved in its
entirety by the High Court, and to such extent, it has been held
all the witnesses have given a false statement.
III. There has been an evidence in respect of recovery of blood
stained clothes of the appellant which stand falsified by the
deposition of Daulatram (PW.7) who had categorically deposed
that when he woke him up while sleeping in the jeep, his clothes
did not have any blood stained. Hari Singh (PW.9) admitted in
his deposition that in Arrest Memo, Ex.P-14 there was no mention
that there was any blood on the body of the accused or his
clothes.
IV. As per the evidence of PWs.1 to 4, the appellant was apprehended
by them when he came and made a demand of Rs.2,000/- to bring
Pooja back on 23.5.2001 and was handed over to the police. There
could be no explanation by the Investigating Officer as how his
arrest had been shown on 27.5.2001.
V. Naurang (PW.4) has categorically deposed that the appellant was
shown to such witnesses immediately after his arrest by the
police.
VI. The High Court has taken the view that the appellant has also
furnished a false explanation. Daulatram (PW.7) was a
prosecution witness and the appellant has submitted that he has
deposed falsely. Such a statement made by the appellant could
not be held to be a false explanation.
VII. The discovery of the body of Pooja by Kalawati (PW.3) is also
grossly suspect, owing to the fact that it is neither natural to
defecate on the roof of a house, nor to go to the roof of a
vacant building in the wee hours of the morning.
VIII. Even if the missing report was filed at 8 O'Clock in the morning
of 23.5.2001 and the appellant had approached the witnesses to
pay to him a sum of Rs.2,000/-, to bring Pooja back the very
same day, there is no reason why the said fact is found to be
missing in the FIR that was lodged on 24.5.2001.
IX. In their statements recorded under Section 161 Cr.P.C.,
witnesses PW.1 to PW.4 have expressed the doubt that they had
with respect to the appellant. It is pertinent to note however,
that all the statements were recorded on 27.5.2001 and there is
no explanation for why such a statement is missing in the FIR
lodged on 24.5.2001.
X. Statement of Rohtash (PW.1) was shown to have been recorded on
27.5.2001 though the same was recorded on 24.5.2001 as is
evident from the overwriting in the original record.
XI. The recoveries are also highly unbelievable as Daulatram (PW.7)
and another witness Ummaid (PW.8), who had been declared
hostile, have deposed in the court stating that they had been
asked to sign on blank papers. In such circumstances, why was
Daulatram (PW.7) also not declared hostile by the prosecution?
XII. Doctor Laxman Singh (PW.12), has deposed before the court,
stating that the appellant had on his person, several injuries
and that some of the said injuries that were on his right leg,
could have been caused by a blunt weapon. No explanation was
furnished by the prosecution with respect to such injuries.
Moreover, even if some injuries were found on the private parts
of the appellant, the same does not conclusively connect him to
the crime.
XIII. Gopi Singh (PW.14), the investigating officer, has deposed in
court, that a white semen like substance was seized from the
spot. Such a statement is not possible to be taken as true for
the reason that the colour of the semen is said to have remained
white even after the lapse of several hours.
38. In the instant case, there have been major contradictions/
improvements/embellishments in the deposition of witnesses which
cannot be ignored when they are examined in the correct perspective.
The chain of links connecting the appellant with the crime appears
inconclusive. It is a settled legal proposition that, while
appreciating the evidence of a witness, minor discrepancies on trivial
matters, which do not affect the core of the case of the prosecution,
must not prompt the court to reject the evidence thus provided, in its
entirety. The irrelevant details which do not in any way corrode the
credibility of a witness, cannot be labeled as omissions or
contradictions. Therefore, the courts must be cautious and very
particular, in their exercise of appreciating evidence. The approach
to be adopted is, if the evidence of a witness is read in its
entirety, and the same appears to have in it, a ring of truth, then it
may become necessary for the court to scrutinize the evidence more
particularly, keeping in mind the deficiencies, drawbacks and
infirmities pointed out in the said evidence as a whole, and evaluate
them separately, to determine whether the same are completely against
the nature of the evidence provided by the witnesses, and whether the
validity of such evidence is shaken by virtue of such evaluation,
rendering it unworthy of belief. "Exaggerations per se do not render
the evidence brittle. But it can be one of the factors to test the
credibility of the prosecution version, when the entire evidence is
put in a crucible for being tested on the touchstone of credibility."
It is in fact, the entirety of the situation which must be taken into
consideration. While appreciating the evidence, the court must not
attach undue importance to minor discrepancies, rather must consider
broad spectrum of the prosecution version. The discrepancies may be
due to normal errors of perception or observation or due to lapse of
memory or due to faulty or stereo-type investigation. After
exercising such care and caution, and sifting through the evidence to
separate truth from untruth, embellishments and improvements, the
court must determine whether the residuary evidence is sufficient to
convict the accused. (Vide: Bihari Nath Goswami v. Shiv Kumar Singh
& Ors., (2004) 9 SCC 186; Vijay @ Chinee v. State of Madhya Pradesh,
(2010) 8 SCC 191; and Sampath Kumar v. Inspector of Police,
Krishnagiri, AIR 2012 SC 1249).
In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883,
this Court has held that if the discrepancies are material it would be
safer to err in acquitting than in convicting the accused.
39. In Subhash v. State of Haryana, AIR 2011 SC 349, this Court
has held that a significant omission in the statement of a witness
recorded under Section 161 Cr.P.C. may amount to a major
contradiction. However, it may depend upon the facts of case and in
case of a material contradiction the accused becomes entitled for
benefit of doubt and thus acquittal.
40. Thus, we find force in the submissions advanced by Ms.
Makhija, learned Amicus Curiae, that evidence produced by the
prosecution had been very shaky and the chain of links connecting the
appellant with the crime appears inconclusive. The circumstantial
evidence is completely wanting in this respect. To accept the
description of the evidence collected as flimsy, or no evidence would
be too short for convicting the appellant for the offence, as many
issues/circumstances virtually remained unexplained.
In view of the above, we have no hesitation in holding that the
prosecution failed to prove the case against the appellant beyond
reasonable doubt and thus, he becomes entitled for benefit of doubt.
Thus, the appeals succeed and are allowed. The conviction and
sentence imposed on the appellant are set aside. The appellant be
released forthwith unless wanted in some other case.
Before parting with the case, we record our appreciation to Ms.
Vibha Datta Makhija, Advocate who rendered invaluable service as
Amicus Curiae in disposal of these appeals.
..................................J.
(Dr. B.S. CHAUHAN)
..................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 6, 2013.
ITEM NO.1A COURT NO.6 SECTION II
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 931-932 OF 2009
RAJ KUMAR SINGH @ RAJU @ BATYA Appellant (s)
VERSUS
STATE OF RAJASTHAN Respondent(s)
Date: 06/05/2013 These Appeals were called on for pronouncement
of judgment today.
For Appellant(s) Ms. Vibha Datta Makhija,Adv.
For Respondent(s) Ms. Pragati Neekhra,Adv.
Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon'ble Mr. Justice Fakkir
Mohamed Ibrahim Kalifulla.
Appeals are allowed in terms of the signed reportable
judgment. The conviction and sentence imposed on the appellant are
set aside. The appellant be released forthwith unless wanted in
some other case.
(O.P. Sharma) (M.S. Negi)
Court Master Court Master
(Signed reportable judgment is placed on record)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 931-932 of 2009
Raj Kumar Singh @ Raju @ Batya ...Appellant
Versus
State of Rajasthan ...Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. 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, learned counsel appearing
on behalf of the State, has opposed the appeals, contending that the
judgments of the courts below do not warrant any interference. The
circumstances relied upon by the courts below stand fully established,
the chain of circumstances is complete, and every link in the said
chain indicates that the appellant alone, could be the accused. The
discrepancies in the evidence of the witnesses are so minor, that none
of the same go to the root of the case and disturb such a conclusion
as mentioned hereinabove. The medical evidence also fully supports
the ocular evidence, and there is no contradiction between the two.
The appellant had approached the family of the victim and asked them
to pay to him, a sum of Rs.2,000/-, as he would bring Pooja back to
them. The injuries found on the person of the deceased and the
appellant-accused co-relate him to the evidence relating to the
recoveries, clearly indicating that the appellant alone is guilty of
the offence. Thus, the appeal is liable to be dismissed.
5. We have considered the rival submissions made by the
learned counsel and perused the record.
There is no ocular version of the incident and the entire case
of the prosecution is based on circumstantial evidence.
6. The courts below have found the following circumstances
forming an incriminating chain against the appellant:
I. Conduct of the appellant.
II. False explanation given by the appellant.
III. Evidence relating to injuries on the person of the
deceased.
IV. Evidence relating to injuries on the appellant.
7. The depositions with respect to the conduct of the
appellant have been considered by the courts below, and 4 witnesses
(family members of the deceased) have been examined in this respect.
All 4 have deposed that the appellant had approached them and had
asked them for the payment of a sum of Rs.2,000/-, to bring Pooja
home, and this circumstance has thus been held to have been proved
against him.
8. We have also been taken through the evidence of the
witnesses on this aspect.
Rohtash (PW.1), the father of the deceased, has deposed
that they had reported the case to the police in the morning at around
8 O' Clock as Pooja was found to be missing. The appellant had
thereafter arrived at around 4 O'Clock in the evening, and had asked
Rohtash (PW.1), to pay to him, a sum of Rs.2,000/-, stating that he
would bring Pooja back. They had informed the police about this fact
while lodging the FIR. In his cross examination, Rohtash (PW.1)
admitted that the issue of the appellant asking for a sum of Rs.2,000/-
had not been mentioned in the FIR. Then the witness himself
voluntarily deposed, that the sum of Rs.2,000/- was asked for after
the said report had already been written. He further deposed that he
had never seen the appellant before he had asked him for the said
amount of Rs.2,000/-. The witness also deposed that the police had
not made any inquiry from him in this regard, and then made a
statement to the contrary alleging that the police had questioned him
vigorously. It may also be pertinent to mention that in his
deposition, Rohtash (PW.1) was unable to mention the particular date
on which the appellant had approached his family, and had asked for a
sum of Rs.2,000/-.
9. Indira (PW.2), the mother of the deceased, Kalawati (PW.3),
grandmother and Naurang (PW.4), grandfather of Pooja (deceased) had
deposed that Rohtash (PW.1) had registered a report in the police
station at 8 O'Clock about the fact that their daughter Pooja had gone
missing and further deposed that, at about 4 O'Clock in the evening,
on the same day, one boy had come to her and had asked her to pay to
him a sum of Rs.2,000/-, as in return for the same he would bring back
her daughter. Indira (PW.2) identified the appellant in court as the
person who had asked to pay the said sum of Rs.2,000/-. All of them
have further deposed that he had been caught by them and had been
handed over to the police. In her cross-examination, she has admitted
that the appellant had also been beaten up by them, and thereafter,
had been handed over to the police on the same day.
If the evidence of the 4 witnesses on this very issue is
carefully examined, it becomes evident that material contradictions
exist therein, and that further, not only do such material
contradictions exist, but embellishments and improvements have also
been made to the version of events. In the event that the appellant
had come to them and asked them for money, and they had caught hold of
him and called the police, and the police had arrested him, there
exists no rational explanation as regards why such a pertinent fact
has been excluded from the FIR. Secondly, in case the witnesses i.e.
the family members of the deceased had caught hold of the appellant,
why has PW.4, grandfather of the deceased, deposed that the appellant
was shown to them immediately after his arrest, if the witnesses had
in fact caught hold of him, and had themselves handed him over to the
police, the question of the police showing the appellant to them could
not arise.
10. All recoveries were made on 24.5.2001, and the appellant
was identified as the accused only on the ground that four witnesses
i.e. PWs. 1 to 4, had deposed to the effect that he had asked them for
a sum of Rs.2,000/- to bring back their child. No one has explained
how the appellant was actually arrested. PWs.1 to 4 have made
categorical statements to the effect that when the appellant had asked
them for money to bring back the girl, they had caught hold of him and
handed him over to the police on 24.5.2001 itself. However, Gopi Singh
(PW.14), the Investigating Officer has made it clear that the
appellant had been arrested on 27.5.2001 by Ext. P-14, and that there
was no independent witness for the said arrest. An FIR was lodged on
24.5.2001 without naming any person, as the FIR itself reveals that
some one had killed Pooja and had dumped her in the abandoned
dharamshala.
Naurang (PW.4), grandfather of Pooja has deposed that the police
had shown the accused to them as soon as he was arrested. Therefore,
there exists a material contradiction as regards the issue of the
arrest of the appellant.
We have examined the original documents/records. There is over-
writing on the arrest memo and Gopi Singh (PW.14), the Investigating
Officer has admitted in his cross-examination that there did in fact
exist some over-writing underneath the signatures in Ext. D-1, and
that the same, i.e., the over-writing, did not bear his initials.
11. So far as the recovery of the clothes of the accused which
were recovered with blood and semen stains is concerned, there are
numerous contradictions. Hari Singh (PW.9), the constable who made the
said recoveries has deposed that on 27.5.2001, he had made the
recovery of a light brown shirt, a white coloured vest on which there
were blood like stains, one cream coloured underwear on which blood
like stains and semen stains were found. The same were recovered from
the appellant. Therefore, it is clear that the recoveries of the
clothes of the appellant were made on 27.5.2001, and not on 24.5.2001.
If the appellant had in fact been arrested as per the version of
events narrated by PWs.1 to 4 on 24.5.2001, there would be no occasion
for the police to make the recovery of his clothes on 27.5.2001. The
statement of Rohtash (PW.1) was recorded on 27.5.2001, though the same
was shown as recorded on 24.5.2001, and the statement of all other
witnesses was recorded on 27.5.2001. It is thus, difficult to
understand how such a material discrepancy in the evidence has been
ignored by the courts below while convicting the appellant. Exts.P-23
to P-39 are the relevant photographs. They do not bear the signature
of any person and therefore, it is difficult to comprehend how these
material exhibits were sent for FSL report.
The High Court has doubted and in fact disbelieved the recovery of
clothes at the instance of the appellant, and has remarked that the
evidence of such recovery was fabricated and false.
12. The postmortem report (Ex.P-21) revealed the following anti-
mortem injuries on her body:
"Body swollen, Abdomen distended, eyes protruded, lips swollen,
no maggots over body, skin pealed off here and there, mouth semi
opened, bleeding from both nostrils and Lt. ear, PM rigidly
absent due to second stage of relaxer, PM lividity present over
dependent parts of body, back of chest presents and both
buttocks blush black, labia majora swollen and teared, hymen
teared, vaginal walls teared. Rectum protruding through
posterior vagina wall, posterior fornix ruptured.
In the opinion of Medical Board the cause of death was
neurogenic shock, coma due to head injury."
13. As already described, the dead body of Pooja was subjected
to an autopsy by the Medical Board. Dr. Laxman Singh (PW.12) deposed
that the body was swollen, abdomen distended, eyes protruding, lips
swollen, no maggots over body, skin pealed off here and there, mouth
semi opened, bleeding from both nostrils and left ear. PM rigidly
absent due to second stage of relaxation, PM lividity present over
dependent parts of body, back of chest present and both buttocks
bluish black. Labia majora swollen and hymen torn. Vaginal walls torn.
Rectum protruding through posterior vaginal wall, posterior fornix
ruptured. The cause of death was neurogenic shock, coma due to head
injury. The testimony of Dr. Laxman Singh clearly reveals that the
innocent helpless soul Pooja was first subjected to monstrous sexual
assault, and was then mercilessly killed by inflicting injuries on her
head so that there remains no direct evidence against culprit.
14. The appellant after his arrest on 27.5.2001 was medically
examined by Dr. Laxman Singh (PW.12) on May 28, 2001 and vide his
medical examination report (Ext. P-22), an abrasion of the size of 0.2
x 0.2 cm on the corona penis was found. The body of the penis and
glands therein were swollen and tenderness and inflammation was
present. There was nothing to suggest that the appellant was incapable
of indulging in intercourse.
15. The evidence of Daulat Ram (PW.7), the driver had been to
the extent that on 22.5.2001, the appellant had travelled with him to
certain places and had slept in his jeep that night and did not go to
his house, and the appellant could not furnish any explanation as to
why he had slept in the jeep and did not go to his house. Therefore,
his conduct was suggestive of the fact that the offence had been
committed by him.
The trial court also doubted the conduct of the appellant for the
reason that he had slept in the jeep though he was neither the driver
of a jeep nor the servant of Daulat Ram (PW.7), the driver. The High
Court had taken note of the appellant's statement under Section 313 of
Code of Criminal Procedure, 1973, (hereinafter referred to as
`Cr.P.C.'), wherein the appellant had replied that the aforesaid
deposition was wrong, and held that explanation furnished by him was
false.
16. The courts below have proceeded on the basis that there was
no evidence of enmity against any of the witnesses which may lead to
the presumption that the appellant has been falsely implicated in the
case.
17. Suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between something that `may
be' proved and `will be proved'. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of
proof. This is for the reason, that the mental distance between `may
be' and `must be' is quite large and divides vague conjectures from
sure conclusions. In a criminal case, the court has a duty to ensure
that mere conjectures or suspicion do not take the place of legal
proof. The large distance between `may be' true and `must be' true,
must be covered by way of clear, cogent and unimpeachable evidence
produced by the prosecution, before an accused is condemned as a
convict, and the basic and golden rule must be applied. In such
cases, while keeping in mind the distance between `may be' true and
`must be' true, the court must maintain the vital distance between
conjectures and sure conclusions to be arrived at, on the touchstone
of dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case, as well as the
quality and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided and if the facts
and circumstances of a case so demand, then the benefit of doubt must
be given to the accused, keeping in mind that a reasonable doubt is
not an imaginary, trivial or a merely probable doubt, but a fair doubt
that is based upon reason and common sense. (Vide: Hanumant Govind
Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao
Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad
Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash
Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State
of M.P., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P., AIR
2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC
1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)
18. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773,
this Court observed as under:
"Another golden thread which runs through the web of the
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. This
principle has a special relevance in cases where in the guilt of
the accused is sought to be established by circumstantial
evidence."
19. In R. v. Hodge 168 ER 1163, the court held that before a
person is convicted entirely on circumstantial evidence, the court
must be satisfied not only that those circumstances were consistent
with his having committed the act, but also that the facts were such,
so as to be inconsistent with any other rational conclusion other than
the one that the accused is the guilty person.
20. In Sharad Birdhichand Sarda (Supra), this Court held as
under:
"The facts so established should be consistent only with the
hypothesis of the guilt of the accused. There should not be
explainable on any other hypothesis except that the accused is
guilty. The circumstances should be of a conclusive nature and
tendency. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the accused."
A similar view has been reiterated in Krishnan v. State Represented
by Inspector of Police, (2008) 15 SCC 430; Pawan v. State of
Uttaranchal, etc. etc. (2009) 15 SCC 259; and State of Maharashtra v.
Mangilal, (2009) 15 SCC 418.
21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200,
this Court held, that if the circumstances proved in a case are
consistent either with the innocence of the accused, or with his
guilt, then the accused is entitled to the benefit of doubt. When it
is held that a certain fact has been proved, then the question that
arises is whether such a fact leads to the inference of guilt on the
part of the accused person or not, and in dealing with this aspect of
the problem, benefit of doubt must be given to the accused and a final
inference of guilt against him must be drawn only if the proved fact
is wholly inconsistent with the innocence of the accused, and is
entirely consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as
under:
"Graver the crime, greater should be the standard of proof. An
accused may appear to be guilty on the basis of suspicion but
that cannot amount to legal proof. When on the evidence two
possibilities are available or open, one which goes in the
favour of the prosecution and the other benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt. The
principle has special relevance where the guilt or the accused
is sought to be established by circumstantial evidence.
22. In an Essay on the Principles of Circumstantial Evidence by
William Wills by T. & J.W. Johnson & Co. 1872, it has been explained
as under:
"In matters of direct testimony, if credence be given to the
relators, the act of hearing and the act of belief, though
really not so, seem to be contemporaneous. But the case is very
different when we have to determine upon circumstantial
evidence, the judgment in respect of which is essentially
inferential. There is no apparent necessary connection between
the facts and the inference; the facts may be true, and the
inference erroneous, and it is only by comparison with the
results of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our conclusions. 7
The term PRESUMPTIVE is frequently used as synonymous with
CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict
accuracy, The word" presumption," ex vi termini, imports an
inference from facts; and the adjunct "presumptive," as applied
to evidentiary facts, implies the certainty of some relation
between the facts and the inference. Circumstances generally,
but not necessarily, lead to particular inferences; for the
facts may be indisputable, and yet their relation to the
principal fact may be only apparent, and not real; and even when
the connection is real, the deduction may be erroneous.
Circumstantial and presumptive evidence differ, therefore, as
genus and species.
The force and effect of circumstantial evidence depend upon
its incompatibility with, and incapability of, explanation or
solution upon any other supposition than that of the truth of
the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad
absurdum."
23. Thus, in view of the above, the Court must consider a case
of circumstantial evidence in light of the aforesaid settled legal
propositions. In a case of circumstantial evidence, the judgment
remains essentially inferential. The inference is drawn from the
established facts as the circumstances lead to particular inferences.
The Court has to draw an inference with respect to whether the chain
of circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
conclusion, that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a
conclusive nature, and consistent only with the hypothesis of the
guilt of the accused.
24. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has
dealt with the doctrine of innocence elaborately and held as under:
"27. Every accused is presumed to be innocent unless the guilt
is proved. The presumption of innocence is a human right.
However, subject to the statutory exceptions, the said principle
forms the basis of criminal jurisprudence. For this purpose, the
nature of the offence, its seriousness and gravity thereof has
to be taken into consideration. The courts must be on guard to
see that merely on the application of the presumption, the same
may not lead to any injustice or mistaken conviction. Statutes
like the Negotiable Instruments Act, 1881; the Prevention of
Corruption Act, 1988; and the Terrorist and Disruptive
Activities (Prevention) Act, 1987, provide for presumption of
guilt if the circumstances provided in those statutes are found
to be fulfilled and shift the burden of proof of innocence on
the accused. However, such a presumption can also be raised only
when certain foundational facts are established by the
prosecution. There may be difficulty in proving a negative fact.
28. However, in cases where the statute does not provide for
the burden of proof on the accused, it always lies on the
prosecution. It is only in exceptional circumstances, such as
those of statutes as referred to hereinabove, that the burden of
proof is on the accused. The statutory provision even for a
presumption of guilt of the accused under a particular statute
must meet the tests of reasonableness and liberty enshrined in
Articles 14 and 21 of the Constitution."
25. In a criminal trial, the purpose of examining the accused
person under Section 313 Cr.P.C., is to meet the requirement of the
principles of natural justice i.e. audi alterum partem. This means
that the accused may be asked to furnish some explanation as regards
the incriminating circumstances associated with him, and the court
must take note of such explanation. In a case of circumstantial
evidence, the same is essential to decide whether or not the chain of
circumstances is complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the
accused, and to seek his explanation as regards the incriminating
material that has surfaced against him. The circumstances which are
not put to the accused in his examination under Section 313 Cr.P.C.,
cannot be used against him and have to be excluded from consideration.
26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100,
this Court observed as under:
"...if there is no evidence or circumstance appearing in the
prosecution evidence implicating the accused with the commission
of the crime with which he is charged, there is nothing for the
accused to explain and hence his examination under Section 313
of the Code would be wholly unnecessary and improper. In such a
situation the accused cannot be questioned and his answers
cannot be used to supply the gaps left by witnesses in their
evidence."
27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582, this
Court held:
"The statement of the accused under Section 313 CrPC is not a
substantive piece of evidence. It can be used for appreciating
evidence led by the prosecution to accept or reject it. It is,
however, not a substitute for the evidence of the prosecution.
If the exculpatory part of his statement is found to be false
and the evidence led by the prosecution is reliable, the
inculpatory part of his statement can be taken aid of to lend
assurance to the evidence of the prosecution. If the prosecution
evidence does not inspire confidence to sustain the conviction
of the accused, the inculpatory part of his statement under
Section 313 CrPC cannot be made the sole basis of his
conviction."
28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this
Court observed:
"Statement under Section 313 of the Code of Criminal Procedure
is taken into consideration to appreciate the truthfulness or
otherwise of the case of the prosecution and it is not an
evidence. Statement of an accused under Section 313 of the Code
of Criminal Procedure is recorded without administering oath
and, therefore, the said statement cannot be treated as evidence
within the meaning of Section 3 of the Evidence Act. The
appellants have not chosen to examine any other witness to
support this plea and in case none was available they were free
to examine themselves in terms of Section 315 of the Code of
Criminal Procedure which, inter- alia, provides that a person
accused of an offence is a competent witness of the defence and
may give evidence on oath in disproof of the charges. There is
reason not to treat the statement under Section 313 of the Code
of Criminal Procedure as evidence as the accused cannot be cross-
examined with reference to those statements. However, when an
accused appears as a witness in defence to disprove the charge,
his version can be tested by his cross-examination."
29. In State of M.P. v. Ramesh, (2011) 4 SCC 786, this Court
held as under:
"The statement of the accused made under Section 313 CrPC can be
taken into consideration to appreciate the truthfulness or
otherwise of the prosecution case. However, as such a statement
is not recorded after administration of oath and the accused
cannot be cross-examined. his statement so recorded under
Section 313 CrPC cannot be treated to be evidence within the
meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC
enables an accused to give evidence on his own behalf to
disprove the charges made against him. However, for such a
course, the accused has to offer in writing to give his evidence
in defence. Thus, the accused becomes ready to enter into the
witness box, to take oath and to be cross-examined on behalf of
the prosecution and/or of the accomplice, if it is so required."
30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114,
this Court observed as under:
"It is true that the statement under Section 313 CrPC cannot
be the sole basis for conviction of the accused but certainly it
can be a relevant consideration for the courts to examine,
particularly when the prosecution has otherwise been able to
establish the chain of events...."
31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759,
this Court held:
"The proper methodology to be adopted by the Court while
recording the statement of the accused under Section 313 CrPC is
to invite the attention of the accused to the circumstances and
substantial evidence in relation to the offence, for which he
has been charged and invite his explanation. In other words, it
provides an opportunity to an accused to state before the court
as to what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity and
if he fails to do so then it is for the court to examine the
case of the prosecution on its evidence with reference to the
statement made by the accused under Section 313 CrPC."
32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC
1357, this Court held as under:
"It is a settled principle of law that the obligation to put
material evidence to the accused under Section 313 CrPC is upon
the court. One of the main objects of recording of a statement
under this provision of CrPC is to give an opportunity to the
accused to explain the circumstances appearing against him as
well as to put forward his defence, if the accused so desires.
But once he does not avail this opportunity, then consequences
in law must follow. Where the accused takes benefit of this
opportunity, then his statement made under Section 313 CrPC,
insofar as it supports the case of the prosecution, can be used
against him for rendering conviction. Even under the latter, he
faces the consequences in law."
33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912,
this
Court, while dealing with the issue of the examination of the accused
under Section 313 Cr.P.C. held, that the accused has a duty to furnish
an explanation in his statement under Section 313 Cr.P.C. as regards any incriminating material that has been produced against him.
Such a
view was taken in light of the fact that there existed evidence to
show that the accused had parked his car at the Delhi Airport, and
that the same had remained there for several hours on the date of
commission of the crime in question.
Thus, in light of the fact that
such a fact had been established, and that such circumstances also
simultaneously existed, the accused was expected to explain the reason
for which he had gone to the airport, and why the car had remained
parked there for several hours.
34. In Ramnaresh (Supra), this Court had taken the view that
if
an accused is given the freedom to remain silent during the
investigation, as well as before the Court, then the accused may
choose to maintain silence or even remain in complete denial, even
at the time when his statement under Section 313 Cr.P.C. is being
recorded.
However, in such an event, the Court would be entitled to
draw an inference, including such adverse inference against the
accused, as may be permissible in accordance with law.
While such an
observation has been made, this part of the judgment must be read
alongwith the subsequent observation of the court stating that if he
keeps silent or furnishes an explanation, in both cases, the same can
be used against him for rendering a conviction, in so far as it
supports the case of the prosecution.
35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this
Court held, that
it is equally true that a statement under Section 313
Cr.P.C., simpliciter cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced.
36. In view of the above,
the law on the issue can be
summarised to the effect that statement under Section 313 Cr.P.C. is
recorded to meet the requirement of the principles of natural justice
as it requires that an accused may be given an opportunity to furnish
explanation of the incriminating material which had come against him
in the trial.
However, his statement cannot be made a basis for his
conviction.
His answers to the questions put to him under Section 313
Cr.P.C. cannot be used to fill up the gaps left by the prosecution
witnesses in their depositions.
Thus, the statement of the accused is
not a substantive piece of evidence and therefore, it can be used only
for appreciating the evidence led by the prosecution, though it cannot
be a substitute for the evidence of the prosecution.
In case the
prosecution's evidence is not found sufficient to sustain conviction
of the accused, the inculpatory part of his statement cannot be made
the sole basis of his conviction.
The statement under Section 313
Cr.P.C. is not recorded after administering oath to the accused.
Therefore, it cannot be treated as an evidence within the meaning of
Section 3 of the Evidence Act, though the accused has a right if he
chooses to be a witness, and once he makes that option, he can be
administered oath and examined as a witness in defence as required
under Section 315 Cr.P.C.An adverse inference can be taken against the accused
only and only
if the incriminating material stood fully established and the accused
is not able to furnish any explanation for the same. However, the
accused has a right to remain silent as he cannot be forced to become
witness against himself.
37. We have considered the case in the light of the aforesaid settled
legal propositions and reached the following inescapable inferences:
I. Kalawati (PW.3), grandmother of the deceased Pooja, has stated
that Indira (PW.2), mother of the deceased Pooja, had removed
her silver Kada and had placed it near Pooja. The said Kada has
however, not been seized from either the place of occurrence,
from their cart, or from the appellant.
II. Witnesses PW.1 to PW.4 have submitted, that the pant, shirt,
vest, brief and shoes of the appellant were found lying near the
dead body of Pooja. This statement has been disbelieved in its
entirety by the High Court, and to such extent, it has been held
all the witnesses have given a false statement.
III. There has been an evidence in respect of recovery of blood
stained clothes of the appellant which stand falsified by the
deposition of Daulatram (PW.7) who had categorically deposed
that when he woke him up while sleeping in the jeep, his clothes
did not have any blood stained. Hari Singh (PW.9) admitted in
his deposition that in Arrest Memo, Ex.P-14 there was no mention
that there was any blood on the body of the accused or his
clothes.
IV. As per the evidence of PWs.1 to 4, the appellant was apprehended
by them when he came and made a demand of Rs.2,000/- to bring
Pooja back on 23.5.2001 and was handed over to the police. There
could be no explanation by the Investigating Officer as how his
arrest had been shown on 27.5.2001.
V. Naurang (PW.4) has categorically deposed that the appellant was
shown to such witnesses immediately after his arrest by the
police.
VI. The High Court has taken the view that the appellant has also
furnished a false explanation. Daulatram (PW.7) was a
prosecution witness and the appellant has submitted that he has
deposed falsely. Such a statement made by the appellant could
not be held to be a false explanation.
VII. The discovery of the body of Pooja by Kalawati (PW.3) is also
grossly suspect, owing to the fact that it is neither natural to
defecate on the roof of a house, nor to go to the roof of a
vacant building in the wee hours of the morning.
VIII. Even if the missing report was filed at 8 O'Clock in the morning
of 23.5.2001 and the appellant had approached the witnesses to
pay to him a sum of Rs.2,000/-, to bring Pooja back the very
same day, there is no reason why the said fact is found to be
missing in the FIR that was lodged on 24.5.2001.
IX. In their statements recorded under Section 161 Cr.P.C.,
witnesses PW.1 to PW.4 have expressed the doubt that they had
with respect to the appellant. It is pertinent to note however,
that all the statements were recorded on 27.5.2001 and there is
no explanation for why such a statement is missing in the FIR
lodged on 24.5.2001.
X. Statement of Rohtash (PW.1) was shown to have been recorded on
27.5.2001 though the same was recorded on 24.5.2001 as is
evident from the overwriting in the original record.
XI. The recoveries are also highly unbelievable as Daulatram (PW.7)
and another witness Ummaid (PW.8), who had been declared
hostile, have deposed in the court stating that they had been
asked to sign on blank papers. In such circumstances, why was
Daulatram (PW.7) also not declared hostile by the prosecution?
XII. Doctor Laxman Singh (PW.12), has deposed before the court,
stating that the appellant had on his person, several injuries
and that some of the said injuries that were on his right leg,
could have been caused by a blunt weapon. No explanation was
furnished by the prosecution with respect to such injuries.
Moreover, even if some injuries were found on the private parts
of the appellant, the same does not conclusively connect him to
the crime.
XIII. Gopi Singh (PW.14), the investigating officer, has deposed in
court, that a white semen like substance was seized from the
spot. Such a statement is not possible to be taken as true for
the reason that the colour of the semen is said to have remained
white even after the lapse of several hours.
38. In the instant case, there have been major contradictions/
improvements/embellishments in the deposition of witnesses which
cannot be ignored when they are examined in the correct perspective.
The chain of links connecting the appellant with the crime appears
inconclusive. It is a settled legal proposition that, while
appreciating the evidence of a witness, minor discrepancies on trivial
matters, which do not affect the core of the case of the prosecution,
must not prompt the court to reject the evidence thus provided, in its
entirety. The irrelevant details which do not in any way corrode the
credibility of a witness, cannot be labeled as omissions or
contradictions. Therefore, the courts must be cautious and very
particular, in their exercise of appreciating evidence. The approach
to be adopted is, if the evidence of a witness is read in its
entirety, and the same appears to have in it, a ring of truth, then it
may become necessary for the court to scrutinize the evidence more
particularly, keeping in mind the deficiencies, drawbacks and
infirmities pointed out in the said evidence as a whole, and evaluate
them separately, to determine whether the same are completely against
the nature of the evidence provided by the witnesses, and whether the
validity of such evidence is shaken by virtue of such evaluation,
rendering it unworthy of belief. "Exaggerations per se do not render
the evidence brittle. But it can be one of the factors to test the
credibility of the prosecution version, when the entire evidence is
put in a crucible for being tested on the touchstone of credibility."
It is in fact, the entirety of the situation which must be taken into
consideration. While appreciating the evidence, the court must not
attach undue importance to minor discrepancies, rather must consider
broad spectrum of the prosecution version. The discrepancies may be
due to normal errors of perception or observation or due to lapse of
memory or due to faulty or stereo-type investigation. After
exercising such care and caution, and sifting through the evidence to
separate truth from untruth, embellishments and improvements, the
court must determine whether the residuary evidence is sufficient to
convict the accused. (Vide: Bihari Nath Goswami v. Shiv Kumar Singh
& Ors., (2004) 9 SCC 186; Vijay @ Chinee v. State of Madhya Pradesh,
(2010) 8 SCC 191; and Sampath Kumar v. Inspector of Police,
Krishnagiri, AIR 2012 SC 1249).
In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883,
this Court has held that if the discrepancies are material it would be
safer to err in acquitting than in convicting the accused.
39. In Subhash v. State of Haryana, AIR 2011 SC 349, this Court
has held that a significant omission in the statement of a witness
recorded under Section 161 Cr.P.C. may amount to a major
contradiction. However, it may depend upon the facts of case and in
case of a material contradiction the accused becomes entitled for
benefit of doubt and thus acquittal.
40. Thus, we find force in the submissions advanced by Ms.
Makhija, learned Amicus Curiae, that evidence produced by the
prosecution had been very shaky and the chain of links connecting the
appellant with the crime appears inconclusive. The circumstantial
evidence is completely wanting in this respect. To accept the
description of the evidence collected as flimsy, or no evidence would
be too short for convicting the appellant for the offence, as many
issues/circumstances virtually remained unexplained.
In view of the above, we have no hesitation in holding that the
prosecution failed to prove the case against the appellant beyond
reasonable doubt and thus, he becomes entitled for benefit of doubt.
Thus, the appeals succeed and are allowed. The conviction and
sentence imposed on the appellant are set aside. The appellant be
released forthwith unless wanted in some other case.
Before parting with the case, we record our appreciation to Ms.
Vibha Datta Makhija, Advocate who rendered invaluable service as
Amicus Curiae in disposal of these appeals.
..................................J.
(Dr. B.S. CHAUHAN)
..................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 6, 2013.
ITEM NO.1A COURT NO.6 SECTION II
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 931-932 OF 2009
RAJ KUMAR SINGH @ RAJU @ BATYA Appellant (s)
VERSUS
STATE OF RAJASTHAN Respondent(s)
Date: 06/05/2013 These Appeals were called on for pronouncement
of judgment today.
For Appellant(s) Ms. Vibha Datta Makhija,Adv.
For Respondent(s) Ms. Pragati Neekhra,Adv.
Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon'ble Mr. Justice Fakkir
Mohamed Ibrahim Kalifulla.
Appeals are allowed in terms of the signed reportable
judgment. The conviction and sentence imposed on the appellant are
set aside. The appellant be released forthwith unless wanted in
some other case.
(O.P. Sharma) (M.S. Negi)
Court Master Court Master
(Signed reportable judgment is placed on record)
