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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
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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
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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
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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,
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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.
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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
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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
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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.
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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
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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
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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 antimortem 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
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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
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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
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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
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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
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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
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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
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of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our
conclusions. ·
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
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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
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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
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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
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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 crossexamined 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 crossexamined. 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
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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,
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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
24Page 25
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
25Page 26
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,
26Page 27
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)
27Page 28
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
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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
29Page 30
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
30Page 31
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
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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 stereotype 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
32Page 33
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.
33Page 34
………………………………..................................J.
(Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 6, 2013.
34
