Sec.376 and Sec.302 I.P.C - Medical report and evidence ruled out the rape and only suggested attempt to rape - Homicidal death proved - who committed the offence left unproved - Sniffer dogs pointed the son of Pw16 - Alleged Eye witness who heard cries of victim with accused never disclose this fact at any time before the police - Last seen theory failed as the victim has gone to purchase some sweet thing after the alleged detention in a house of accused but the keys of house of accused were with the PW 16 as the mother of accused handed over it to her which was returned by her to the accused at 2 P.M. - No explanation for the injuries on accused - Prosecution cast doubts on it's fair investigation - High court rightly acquitted the accused - state appeal was dismissed =
As per PW16(Shakriben),who is the neighbour of the respondent, she
had seen the three girls playing in the courtyard of the respondent. She
further stated that the respondent drove away Parul and Saroj and then
caught the victim and pushed her into his house. Thereafter she heard
cries of the victim and then she heard sound of beating. She has further
stated that she went into the house thereafter but was threatened by the
respondent that if she talked to anyone in the town, he would kill her and
her son. She has further stated that the accused had arrived at about 2.30
p.m. on the day of the incident and he was drunk. He tried to push open the
rear door of the house.
The witness said that mother of the accused,
Divaliben had given the key of the house to her and, therefore, she gave
the key to the accused.
The witness has further stated that on the next day
when mother of the victim was searching the victim, she told her that she
had not seen the victim and she joined the search. During cross-
examination, the witness has admitted that she had not stated in her
statement before police that the accused had intimidated her.
She says that
she does not know whether the victim had gone to purchase Gutka packet. The
distance between her house and the house of the accused is 25 to 30 feet.
She says that she did not tell her husband or her son about the incident.
She admits that she did not state before police that, at the time of the
incident, she went into the house after washing clothes and sat in the
house and, at that time, accused had intimidated her that, if she tells
anyone in the village, he would kill her and her son. She admits that, on
the day of incident as well as on the next day, when people were searching
for the girl, she did not tell anyone about the incident.
“From the above discussion of evidence, it is clear that even
according to doctor, there was no bleeding injury on penis of
the accused. There was no bleeding injury to the deceased
either. There were no internal injuries in the vagina of the
deceased. Against this, if the results of vaginal swab are seen,
presence of blood and semen is found. How this could have been
found is a question which has remained unexplained and
unanswered. This would cast heavy doubt about the reliability of
investigation. That apart, the group has remained unidentified
so far as vaginal swab is concerned.
If evidence of Shakariben is seen and, even as per prosecution
case, the incident occurred in the house of the accused and this
is tried to be proved through deposition of Shakariben, who says
that accused pushed the deceased into his house and, thereafter,
she heard cry of the deceased and then sound of beating. As per
the prosecution case, blood stains of the group of the deceased
were found in the house of the accused at various places. No
trace of semen was found in the house of the accused. But,
surprisingly, at the place where the dead body was found, semen
was found on the ground. That was of the group of the accused.
If the incident occurred in the house, the traces of semen ought
to have been found in the house and not at the place where the
dead body was found. No motive is indicated for the accused to
murder the deceased immediately after pushing her into the house
and, if the rape or attempted rape was committed in the house
followed by alleged murder, there would have been traces of
semen in the house. These factors have remained unexplained and
seem to have gone unnoticed by the trial court.”
There is another aspect highlighted by the High Court which is very
pertinent and cannot be ignored. After the incident when sniffer dog was
brought to the site. The said dog had tracked to the house of PW16 and not
the respondent.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself. On the other
hand, I.O. has totally denied that son of PW16 was ever detained for 2
days. There is no such entry in the daily diary as well. From this
evidence appearing on record, the High Court has concluded that
investigation cannot be considered as honest inasmuch as it would indicate
to two possibilities, namely:
(1) The investigating officer did not detain or interrogate the son of
PW16 for 2 days. If that is so he failed in his duty when the sniffer
dog tracked to the house of PW16.
(2) If I.O. had detained the son of PW16, then case diary does not
record the events correctly and he is not telling the truth before the
Court.
That apart, it also speaks volumes about the reliability of the
investigation and evidence collected, more so when no explanation is coming
forward as to why the son of PW16 was released by the police and the
respondent arrested.
20. We, thus, agree with the findings of the High Court that the evidence
led by the prosecution does not establish a complete chain of circumstances
to connect the accused with the murder of Komal, the deceased. There are
significant defects and shortcomings in the investigation; witnesses have
come out with contradictory version; and have made significant improvements
in their versions in their depositions in the Court. In a case of
circumstantial evidence, it would be unwise to record conviction on the
basis of such a scanty, weak and incomplete evidence. As the prosecution
has not been able to prove the charges beyond reasonable doubt, agreeing
with the conclusions of the High Court we dismiss the present appeal.
2014 ( January – Vol-1) Judis.Nic.in/ S.C./ file name =41146
[Reportable]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.403/2007
State of Gujarat …..Appellant
Vs.
Ratansingh @ Chinubhai Anopsinh Chauhan …..Respondent
J U D G M E N T
A.K.SIKRI,J.
1. The present appeal is directed against the final judgment and order
dated 14th September 2006 passed by the Hon’ble High Court of Gujarat in
Criminal Confirmation Case No.9 of 2004 with Criminal Appeal No.1915/2004,
setting aside the judgment and order passed by the Ld. Additional Sessions
Judge and second Fast Track Court in Sessions Case No.4/2004 convicting the
respondent under Section 376,302 and 201 IPC for the offence of rape and
murder of a seven year old girl and punishing him with sentence of death.
The High Court found severe loopholes and shortcomings in the prosecution
story, rendering it unbelievable and thereby acquitted the respondent in
the aforesaid case.
2. The prosecution case, in nutshell, was that the respondent/accused
was the neighbour of the deceased girl Komal aged 7 years r/o village
Bhammiya.
On the day of incident i.e. 16.8.2003 the victim was playing
with her two friends viz. Parul and Saroj in the courtyard of the
respondent.
The respondent/accused came to his house between 15.00 to 15.30
hrs. and scolded the girls for playing there. Parul and Saroj ran away
whereas, however, the deceased girl was forcibly caught by the respondent
and pushed her into his house and he shut the door.
Shakriben Chandrasinh,
a neighbour who was washing clothes, heard the cries of victim which got
silent after sometimes.
Thereafter Savitaben mother of the deceased girl,
who returned from work at about 16.00 hrs. and not finding her daughter
started searching for the victim along with Shakriben.
A day after the
incident, dead body of the victim was recovered from a nearby field wearing
a white frock with undergarment missing, which was later found from the
hedge falling between the house of the respondent and Shakriben
Chandrasinh.
A complaint was lodged and FIR registered by Arvindbhai
Khatubhai, the father of the victim.
The police started investigation and
recorded the statements of witnesses. Necessary samples were also collected
during the investigation and sent to FSL. The dead body of the deceased
was sent for the post mortem which was conducted by Dr. Shashikant Nagori
between 16.45 hrs. & 17.45 hrs. on 17.8.2003. The post mortem report
mentioned following injuries:-
* Abrasion on both thighs, both knees and bruises over the legs.
* The injuries found on labia majora had a swelling of 3 x 2 cms.
on right majora and abrasion on left majora, such injuries were
possible in an attempted rape. There was penetration on the private
parts of the victim girl.
* The presence of injuries on left mastoid region, which was bone
deep and brain matter had come out of the wound.
* There was haematoma over whole skull on both parietal and
frontal region and blood was oozing out of the left ear.
* There was a depressed fracture of skull on frontal and left
parietal region.
The doctor opined that the injuries were sufficient in ordinary
course of nature to cause death and it was homicidal death.
3. The respondent was arrested after two days i.e. on 19.8.2003 from a
nearby village, who had allegedly fled after committing the offence. On
search, a suicide note purportedly written by the respondent was recovered
from his pocket. Besides, blood stained clothes and blood group of the
deceased was noticed on other articles. He was found to have sustained
injuries on his person, which was recorded in the arrest panchnama.
Upon
disclosure of the accused, the grinding stone used in inflicting injuries
on head of the deceased was recovered from his house. After the recovery
of the stone, a panchnama of recovery of the stone was drawn in the
presence of panch witnesses on 20.8.2003.
Thereafter discovery panchnama
of the articles was drawn which were concealed beneath the steel cupboard.
After the completion of investigation, the charge sheet was filed before
the Ld. Chief Judicial Magistrate, Godhra on 22.8.2003. After committal,
the case was registered as Sessions Case No.4 of 2004 and charge against
the respondent accused was framed under Sections 376,302 and 201 of the
IPC. The respondent denied the charge and claimed to be tried. The
prosecution examined 23 witnesses in support of its case. None was examined
by the accused in his defence. The statement of the respondent was recorded
under Section 313 of the Cr.P.C. On 7.10.2004 the learned Sessions Judge
after examining the oral and documentary evidence, returned the finding of
guilt and convicted the respondent for the offence of rape and murder. The
learned Sessions Judge awarded capital punishment for the offence of murder
u/s 302 and imprisonment for life and fine of Rs.1000/- for the offence of
rape u/s 376 and in default to undergo SI for 3 months.
The record of the
case was forwarded to the High Court u/s 366 of the Cr.P.C. for approval of
the death sentence awarded by the Sessions Court.
The accused also
preferred Criminal Appeal No.1915/2004 before the High Court of Gujarat
against the judgment and order dated 7.10.2004.
The Impugned Judgment:
4. As is clear from the above, the precise charge against the respondent
was of raping the minor girl Komal and thereafter murdering her. The High
Court, on the basis of medical evidence namely the post-mortem report of
the deceased found that it was case of homicidal death. There is no
quarrel about the same and this aspect is not disputed by the respondent
before us as well.
5. As far as charge of rape is concerned, the High Court observed that
there was no direct evidence and medical evidence was the only
circumstantial evidence which could be relied upon.
It discussed the
evidence of Dr. Nagori to this effect, who had conducted the post mortem on
the dead body.
It was found that there was swelling of 3x2 cms on right
labia majora and abrasion over left labia majora.
It is also recorded in
the postmortem notes that as per vagina examination, it was found that
little finger passed with difficulty and there was no internal injury.
The
post mortem notes also indicated abrasions on both thighs, both knees and
bruises over legs.
In his deposition, the doctor has deposed, after
describing the injuries, that the injuries found on labia majora were
possible in an attempted rape.
During cross-examination he deposed that, if
there was penetration of penis in the vagina, there was possibility of
internal injuries. He stated, in terms, that from the post mortem
examination, in the instant case, there was no penetration of penis in the
vagina.
6. On the basis of aforesaid, the High Court acquitted that offence of
rape was not proved by the prosecution beyond reasonable doubt and it
could, at the most, be considered an attempted rape.
The finding of the
trial court recording the conviction for offence of rape under section 376
of the IPC has, accordingly, been set aside.
It is primarily on the ground
that even if it is to be accepted that in a case of rape of a minor,
complete penetration of penis with emission of semen and rupture of hymen
is not necessarily to be established, in the instant case, the medical
evidence clearly suggests that there was no penetration at all i.e. the
factor which influenced the High Court to set aside the conviction based on
section 376, IPC.
7. The High Court, thus, proceeded on the basis that the deceased was
murdered and there was an attempted rape on her.
It then addressed the
central issue viz.
whether the respondent could be connected with the said
murder and attempted rape.
It was a case of circumstantial evidence, in the absence of any eye witness.
After discussing the evidence, the High
Court found that prosecution had failed to establish the chain of
circumstances could connect the accused with the crime.
There were material
contradictions and inconsistencies in the depositions of various witnesses
etc. which did not form a complete chain.
The High Court has, accordingly,
set aside the order of conviction of the trial court as unsustainable and
acquitted the accused of the charges.
It is, inter-alia, held that the
evidence led by the prosecution on last seen together cannot be accepted.
It is not only contradictory, inconsistent and improbable, but also suffers from vice of improvements and therefore, it sounds unreliable.
As regards
injuries found on chest and back of the person of accused are concerned,
which the prosecution tried to show as injuries caused with nail, possibly
by the deceased, the High Court has discounted this prosecution version on
the ground that the Post Mortem note does not indicate presence of any
traces of skin of the accused in the nail of the deceased.
As per the High
Court the investigation is not found to be independent, trustworthy or
reliable, the evidence does not establish a complete chain of circumstances
to connect the accused with the crime.
There are major defects in the
investigations which render it doubtful when the case is founded on
circumstantial evidence. It, thus, set aside the judgment of the Trial
Court on the ground that the conviction cannot be recorded on such scanty,
weak and incomplete evidence.
The Arguments:
8. The learned counsel for the State argued that High Court committed
grave error in holding that there was no complete chain of the
circumstances connecting the respondent to the incident. He pointed out
that certain samples of blood, clay etc. were collected from the spot and
FSM report (Ex.54) was obtained therefrom which was duly proved in the
trial court through witness No.20-Chandubhai Nagjibhai Pargi who had stated
in his deposition that on receiving the message from control room on
17.8.2003 he along with FSL Mobile Van had gone to the place of incident
and collected the following samples:
- Clay with blood from the place of incident.
Clay bearing doubtful spot recovered from the place in between
two legs.
- Control clay recovered from the place at the distance of 5
feet from the dead body.
- Clay bearing pan padiki spittle recovered from the place
at the distance of 7 feet from the dead body.
- One red colour knickers bearing spots from the vada behind
the house of Chandrasinh Laxmansinh Chauhan, situated in
the south direction from the dead body.
9. He further drew the attention of this Court to post mortem
report (Ex.7) containing external examination of the deceased. As per the
said post mortem report, the following aspects were established:
|1. |Condition of the clothes whether | |
| |wet with water, stained with |Stained with blood |
| |blood, soiled with vomit or | |
| |foecal matter. | |
|2. |Injuries to external genitals, |Swelling (hemetomal) 3x2 cm |
| |indication of purging. |over Rt.Labia mejora abrasion|
| | |over lt.labia mejora. |
|3. |Surface wounds and injuries their|a.Abrasions over medical |
| |natural position, dimensions |upper of both thighs. |
| |(measured) and directions to be |b.Abrasions over both knee. |
| |accurately stated: their probable|c.Bruises over both legs. |
| |ages and cause to be noted. | |
10. He also pointed out that opinion as to the cause or probable cause of
death recorded by the Medical Officer was “cause of death is shocked due to
head injury leading to skull injury over brain”. He also pointed out that
cloth of the deceased was stained with blood and there were abrasions over
medial upper both thighs, over both knees and bruises over both legs.
According to the learned counsel, this shows that the deceased was
subjected to sexual assault and murdered.
11. In order to connect the accused with the said incident, the learned
counsel referred to the testimony of PW12, Saroj who was playing along with
Parul and deceased on the fateful day, on the courtyard of the residence of
the accused when the accused reached there and scolded these girls. His
submission was that there was no cross-examination by the defence on this
aspect and from this testimony it stood proved that the deceased was last
seen with the accused, as PW12 had categorically stated that she and Parul
left the place but the deceased remained there. He further submitted that
this was corroborated by the neighbour Shakriben Chandrasinh (PW16) as
well.
12. In nutshell, the submission of the learned counsel for the State was
that the circumstances formed a complete chain of events connecting the
crime to the accused inasmuch as:
(1) the victim was last seen in the company of the accused;
(2) certain samples were collected from the
residence of the accused including plaster bearing blood, blood taken on
thread by rubbing from ground floor of western wall, support (datto) of
wooden plate bearing blood spots, pieces of paper affixed on the metal
barrel, bearing blood spots etc.; the blood on the aforesaid as found was
of “B” Group which is the blood group of the deceased;
(3)clay from thighs with semen from the deceased was collected and semen was found to be of “O” Group which is that of the accused;
(4) the medical evidence, which clearly nails the respondent and there could be no other person who would have committed this crime.
Our Analysis:
13. Since it is a case of circumstantial evidence and the prosecution
case starts with the theory of last seen, the first place is as to
whether
the prosecution has been able to conclusively and beyond reasonable doubt
prove that the deceased was last seen in the company of the respondent.
For
this purpose, as already noted above, the prosecution has relied upon the
testimonies of PW12,PW16,PW17 and PW18.
The paramount question is as to
whether testimonies of these witnesses is reliable.
The High Court has
found certain inherent contradictions in the depositions of the aforesaid
witnesses on the basis of which it has come to the conclusion that it is
difficult to accept their version, which is even contrary to each other
about the details of the events. No doubt PW12, Sarojben was playing with
the deceased and Parul on the grounds of the residence of the accused and
when respondent reached the spot, he asked them to left.
However,
thereafter
whether the deceased remained there and was not seen at all
thereafter till her dead body was found , is a pertinent question.
As per
the prosecution version itself the deceased had left that place; elbeit at
the asking of the respondent who had sent her to the market to purchase
Vimal Gutka and she returned back to the respondent after purchasing the
said Gutka, to hand it over to the deceased.
Whether it is conclusively
proved that she returned back to the respondent?
Here, according to the
High Court, there are various contradictions in the depositions of the
witnesses.
As per PW7, the shopkeeper from where the deceased had gone to
purchase Gutka, the deceased had come to his shop on that date at about 3
p.m. She purchased eatable ( and not Gutka) for Rupee one and then she went
away.
During cross-examination, he stated that it had not happened that
the victim had come to his shop to purchase Vimal Gutka.
So according to
him deceased had come to his shop to purchase some eatable.
He also
admitted that in his statement before the police on 19th August 2003, he
had not stated that the deceased had come to his shop to purchase eatable.
On specific question put to him in the cross-examination as to why he did
not tell the police about the victim’s visit to his shop to purchase
eatable, he did not give any specific reply.
14. As per PW16(Shakriben),who is the neighbour of the respondent, she
had seen the three girls playing in the courtyard of the respondent. She
further stated that the respondent drove away Parul and Saroj and then
caught the victim and pushed her into his house. Thereafter she heard
cries of the victim and then she heard sound of beating. She has further
stated that she went into the house thereafter but was threatened by the
respondent that if she talked to anyone in the town, he would kill her and
her son. She has further stated that the accused had arrived at about 2.30
p.m. on the day of the incident and he was drunk. He tried to push open the
rear door of the house.
The witness said that mother of the accused,
Divaliben had given the key of the house to her and, therefore, she gave
the key to the accused.
The witness has further stated that on the next day
when mother of the victim was searching the victim, she told her that she
had not seen the victim and she joined the search. During cross-
examination, the witness has admitted that she had not stated in her
statement before police that the accused had intimidated her.
She says that
she does not know whether the victim had gone to purchase Gutka packet. The
distance between her house and the house of the accused is 25 to 30 feet.
She says that she did not tell her husband or her son about the incident.
She admits that she did not state before police that, at the time of the
incident, she went into the house after washing clothes and sat in the
house and, at that time, accused had intimidated her that, if she tells
anyone in the village, he would kill her and her son. She admits that, on
the day of incident as well as on the next day, when people were searching
for the girl, she did not tell anyone about the incident.
15. Apart from the aforesaid omissions on the part of PW16 and PW17 in
not mentioning to the police when they gave their statements, immediately
after the incident, the High Court has also analyzed their statements along
with deposition of PW12 and found them to be inconsistent and self-
contradictory in the following manner:
“From depositions of these three witnesses, the prosecution has
tried to establish the circumstances of the accused having been
seen in company of the deceased last. But scrutiny of this
evidence leads us to negative this aspect. According to PW12-
Saroj, she was playing with the victim and Parul. Accused arrived
around 3O’ clock and shouted “Ladidiyo” (meaning young girls).
Therefore, she and Parul ran away and the victim was left behind.
She says that accused sent the victim to purchase a packet of
Vimal. She also says that, thereafter, she went home and was doing
lesson. She saw the victim going with a packet of Vimal to give it
to the accused. Therefore, necessarily, if her say is taken at
face value, then also the victim was seen going to the house of
accused with a packet of Vimal and if she did factually reach
there, at that point of time, neither Saroj nor Parul was present.
Against the above situation emerging from deposition of Saroj,
if deposition of Shakariben (Ex.49) is seen, she says that when
Saroj, the victim and Parul were playing in the courtyard of the
accused, the accused arrived and drove away Parul and Saroj and
caught hold of the victim and pushed her into the house,
whereafter she heard cry of the victim and then sound of beating,
meaning thereby that when the deceased was taken into the house,
that was the last point of time when she was seen in company of
the accused and, at that point of time, both Saroj and Parul were
present, which is just contrary to what Saroj says. Viewed from
another angle, Shakariben does not speak of any even taking place
before the victim was pushed into the house and thereafter the
incident has occurred, as against the say of Saroj that the
accused sent the victim to get a packet of Vimal. Necessarily,
therefore, what Shakariben saw was not the last point of time when
the victim and the accused were together. The victim was seen by
Saroj at a later point of time and also by witness-Himatbhai.
Parul has not been examined by the prosecution as a witness.
Therefore, the evidence regarding the accused seen last in company
of the deceased, as led by the prosecution, is inconsistent and
self-contradictory.
That apart, the conduct of PW16 seems to be unnatural and thus
unworthy of reliance. The High Court has rightly observed that it
does not inspire confidence for several reasons, namely: (1)
though she claims to have the witness the accused pushing the
victim into the house and then hearing her cry followed by sound
of beating, she did not take any steps to rescue her. (2) She did
not even tell about this incident to anyone, including her husband
and son till 19th August 2003 when her statement was recorded. (3)
Even in her statement to the police she has omitted to state the
aforesaid purported facts.(4) On the next day of the incident,
when the search for the victim was on, she still kept quite and
did not disclose the incident to anybody. Strangely, she joins
the group searching for the victim.(5) There is no explanation as
to when and why the respondent could have intimidated her. As per
the sequence of events narrated by her, the respondent came; she
gave him the key of his house; the respondent went to his house
and shouted at girls; the two other girls went away and respondent
pushed the victim into house; and thereafter she (the witness went
to her house). If these sequences are to be seen, there was no
occasion for the accused to intimidate her.
As far as evidence of PW12,Saroj is concerned, she stated that
she had lastly seen the deceased going with packet of Vimal. She
simply presumed that the victim was going to give the said packet
to the accused. However, she did not see the deceased going with
packet of Vimal Gutka to the respondent as she specifically stated
that after seeing the deceased carrying the packet of Vimal she
went home and started doing her lesson. There is no evidence to
show that the deceased reached the house of the accused and met
him. In fact, there is some contradiction even on the purchase of
the item inasmuch as as per PW17 the deceased had purchased
eatable whereas PW-12 says that she was carrying Vimal Gutka. PW17
has specifically said that the deceased had not purchased Vimal
Gutka from him. From the aforesaid testimonies of Saroj Shakariben
the High Court has also observed that from both the evidence taken
together, prosecution story cannot be believed inasmuch as if the
situation is examined from a different angle, if what Saroj says
had happened, then what Shakariben says could not have happened,
because according to Shakariben, on arrival, the accused shouted
at the girls and drove away Parul and Saroj and pushed the
deceased into the house and, if what Shakariben says is correct,
what Saroj says could not have happened. The doubt assumes greater
strength because of certain circumstances which would be discussed
in the paragraphs to follow.
Examined from any angle, the evidence led by the prosecution on
last seen together aspect cannot be accepted. It is not only
contradictory, inconsistent and improbable, but it also suffers
from vice of improvements and, therefore, to us, it sounds
unreliable. The case is founded on circumstantial evidence. This
is one of the major circumstances pressed by the prosecution. We
also find that the investigation is not carried out properly and
does not inspire confidence. The evidence on last seen together
aspect, therefore, cannot be accepted as a link in the chain of
circumstances leading to exclusive hypothesis of guilt of the
accused.”
16. We are in agreement with the aforesaid analysis of the evidence by
the High Court and, therefore, hold that prosecution has not been able to
establish, with clinching evidence that the deceased was seen lastly in the
company of the accused.
17. Even the medical evidence on which strong reliance was placed by the
learned counsel for the State, is of no help to arrive at the conclusion
that guilt of the respondent stands proved beyond reasonable doubt. When
the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was
drawn. In that it is recorded that the accused had abrasions on chest,
back and shoulder caused by nail and also that there was swelling on his
penis and swelling on skin with abrasion. Immediately after his arrest,
the respondent was sent for medical check up. As per the medical report
(Ex.17) there were injuries on chest and back which is described by the
doctor as linear abrasions. There were no foreign particles in his nails.
The doctor also admitted in his cross-examination that he did not notice
any injury on the penis of the accused. Therefore, this shows
contradiction between the recording of medical condition in the Panchnama
and the medical examination conducted by the doctor, in so far as they
relate to the injury on the penis of the respondent. High Court has
rightly observed that the Panchnama has recorded abrasions and therefore it
could not have disappeared within such a short time. It reflects adversely
on the prosecution case. As regards injuries found on chest and back of
the respondent, they are tried to be shown as injuries caused with nail of
the deceased. However, the post mortem note does not indicate presence of
any traces of skin of the accused in nail of the deceased. Further,
comments of the High Court in the impugned judgment about the medical
evidence, pertinent for our purposes, are reproduced below as we entirely
agree with the said analysis:
“From the above discussion of evidence, it is clear that even
according to doctor, there was no bleeding injury on penis of
the accused. There was no bleeding injury to the deceased
either. There were no internal injuries in the vagina of the
deceased. Against this, if the results of vaginal swab are seen,
presence of blood and semen is found. How this could have been
found is a question which has remained unexplained and
unanswered. This would cast heavy doubt about the reliability of
investigation. That apart, the group has remained unidentified
so far as vaginal swab is concerned.
If evidence of Shakariben is seen and, even as per prosecution
case, the incident occurred in the house of the accused and this
is tried to be proved through deposition of Shakariben, who says
that accused pushed the deceased into his house and, thereafter,
she heard cry of the deceased and then sound of beating. As per
the prosecution case, blood stains of the group of the deceased
were found in the house of the accused at various places. No
trace of semen was found in the house of the accused. But,
surprisingly, at the place where the dead body was found, semen
was found on the ground. That was of the group of the accused.
If the incident occurred in the house, the traces of semen ought
to have been found in the house and not at the place where the
dead body was found. No motive is indicated for the accused to
murder the deceased immediately after pushing her into the house
and, if the rape or attempted rape was committed in the house
followed by alleged murder, there would have been traces of
semen in the house. These factors have remained unexplained and
seem to have gone unnoticed by the trial court.”
18. The High Court has also expressed its doubts on recovery of
grinding stone from the house of the respondent which was allegedly used
for committing murder of the deceased. It is pointed out by the High Court
that evidence suggests that the officer of the FSL was summoned on 19th
August 2003 who inspected the place of incident and instructed the Inquiry
Officer to recover the stone which was, accordingly, recovered. It is so
stated in his report as well as in his deposition. Thus, as per the
deposition of the officer of FSL, stone was recovered on 19th August 2003.
As against this, as per discovery Panchnama drawn on 23rd August 2003 the
said grinding stone was recovered from beneath steel cupboard at the
instance of the respondent. How this recovery could have taken place if
the stone had already been recovered on 19th August 2003. This casts doubt
about the aforesaid documents and the discovery of stone itself.
19. There is another aspect highlighted by the High Court which is very
pertinent and cannot be ignored. After the incident when sniffer dog was
brought to the site. The said dog had tracked to the house of PW16 and not
the respondent.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself. On the other
hand, I.O. has totally denied that son of PW16 was ever detained for 2
days. There is no such entry in the daily diary as well. From this
evidence appearing on record, the High Court has concluded that
investigation cannot be considered as honest inasmuch as it would indicate
to two possibilities, namely:
(1) The investigating officer did not detain or interrogate the son of
PW16 for 2 days. If that is so he failed in his duty when the sniffer
dog tracked to the house of PW16.
(2) If I.O. had detained the son of PW16, then case diary does not
record the events correctly and he is not telling the truth before the
Court.
That apart, it also speaks volumes about the reliability of the
investigation and evidence collected, more so when no explanation is coming
forward as to why the son of PW16 was released by the police and the
respondent arrested.
20. We, thus, agree with the findings of the High Court that the evidence
led by the prosecution does not establish a complete chain of circumstances
to connect the accused with the murder of Komal, the deceased. There are
significant defects and shortcomings in the investigation; witnesses have
come out with contradictory version; and have made significant improvements
in their versions in their depositions in the Court. In a case of
circumstantial evidence, it would be unwise to record conviction on the
basis of such a scanty, weak and incomplete evidence. As the prosecution
has not been able to prove the charges beyond reasonable doubt, agreeing
with the conclusions of the High Court we dismiss the present appeal.
………………………………….J.
(K.S.Radhakrishnan)
………………………………..J.
(A.K.Sikri)
New Delhi,
January10, 2014
As per PW16(Shakriben),who is the neighbour of the respondent, she
had seen the three girls playing in the courtyard of the respondent. She
further stated that the respondent drove away Parul and Saroj and then
caught the victim and pushed her into his house. Thereafter she heard
cries of the victim and then she heard sound of beating. She has further
stated that she went into the house thereafter but was threatened by the
respondent that if she talked to anyone in the town, he would kill her and
her son. She has further stated that the accused had arrived at about 2.30
p.m. on the day of the incident and he was drunk. He tried to push open the
rear door of the house.
The witness said that mother of the accused,
Divaliben had given the key of the house to her and, therefore, she gave
the key to the accused.
The witness has further stated that on the next day
when mother of the victim was searching the victim, she told her that she
had not seen the victim and she joined the search. During cross-
examination, the witness has admitted that she had not stated in her
statement before police that the accused had intimidated her.
She says that
she does not know whether the victim had gone to purchase Gutka packet. The
distance between her house and the house of the accused is 25 to 30 feet.
She says that she did not tell her husband or her son about the incident.
She admits that she did not state before police that, at the time of the
incident, she went into the house after washing clothes and sat in the
house and, at that time, accused had intimidated her that, if she tells
anyone in the village, he would kill her and her son. She admits that, on
the day of incident as well as on the next day, when people were searching
for the girl, she did not tell anyone about the incident.
“From the above discussion of evidence, it is clear that even
according to doctor, there was no bleeding injury on penis of
the accused. There was no bleeding injury to the deceased
either. There were no internal injuries in the vagina of the
deceased. Against this, if the results of vaginal swab are seen,
presence of blood and semen is found. How this could have been
found is a question which has remained unexplained and
unanswered. This would cast heavy doubt about the reliability of
investigation. That apart, the group has remained unidentified
so far as vaginal swab is concerned.
If evidence of Shakariben is seen and, even as per prosecution
case, the incident occurred in the house of the accused and this
is tried to be proved through deposition of Shakariben, who says
that accused pushed the deceased into his house and, thereafter,
she heard cry of the deceased and then sound of beating. As per
the prosecution case, blood stains of the group of the deceased
were found in the house of the accused at various places. No
trace of semen was found in the house of the accused. But,
surprisingly, at the place where the dead body was found, semen
was found on the ground. That was of the group of the accused.
If the incident occurred in the house, the traces of semen ought
to have been found in the house and not at the place where the
dead body was found. No motive is indicated for the accused to
murder the deceased immediately after pushing her into the house
and, if the rape or attempted rape was committed in the house
followed by alleged murder, there would have been traces of
semen in the house. These factors have remained unexplained and
seem to have gone unnoticed by the trial court.”
There is another aspect highlighted by the High Court which is very
pertinent and cannot be ignored. After the incident when sniffer dog was
brought to the site. The said dog had tracked to the house of PW16 and not
the respondent.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself. On the other
hand, I.O. has totally denied that son of PW16 was ever detained for 2
days. There is no such entry in the daily diary as well. From this
evidence appearing on record, the High Court has concluded that
investigation cannot be considered as honest inasmuch as it would indicate
to two possibilities, namely:
(1) The investigating officer did not detain or interrogate the son of
PW16 for 2 days. If that is so he failed in his duty when the sniffer
dog tracked to the house of PW16.
(2) If I.O. had detained the son of PW16, then case diary does not
record the events correctly and he is not telling the truth before the
Court.
That apart, it also speaks volumes about the reliability of the
investigation and evidence collected, more so when no explanation is coming
forward as to why the son of PW16 was released by the police and the
respondent arrested.
20. We, thus, agree with the findings of the High Court that the evidence
led by the prosecution does not establish a complete chain of circumstances
to connect the accused with the murder of Komal, the deceased. There are
significant defects and shortcomings in the investigation; witnesses have
come out with contradictory version; and have made significant improvements
in their versions in their depositions in the Court. In a case of
circumstantial evidence, it would be unwise to record conviction on the
basis of such a scanty, weak and incomplete evidence. As the prosecution
has not been able to prove the charges beyond reasonable doubt, agreeing
with the conclusions of the High Court we dismiss the present appeal.
2014 ( January – Vol-1) Judis.Nic.in/ S.C./ file name =41146
[Reportable]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.403/2007
State of Gujarat …..Appellant
Vs.
Ratansingh @ Chinubhai Anopsinh Chauhan …..Respondent
J U D G M E N T
A.K.SIKRI,J.
1. The present appeal is directed against the final judgment and order
dated 14th September 2006 passed by the Hon’ble High Court of Gujarat in
Criminal Confirmation Case No.9 of 2004 with Criminal Appeal No.1915/2004,
setting aside the judgment and order passed by the Ld. Additional Sessions
Judge and second Fast Track Court in Sessions Case No.4/2004 convicting the
respondent under Section 376,302 and 201 IPC for the offence of rape and
murder of a seven year old girl and punishing him with sentence of death.
The High Court found severe loopholes and shortcomings in the prosecution
story, rendering it unbelievable and thereby acquitted the respondent in
the aforesaid case.
2. The prosecution case, in nutshell, was that the respondent/accused
was the neighbour of the deceased girl Komal aged 7 years r/o village
Bhammiya.
On the day of incident i.e. 16.8.2003 the victim was playing
with her two friends viz. Parul and Saroj in the courtyard of the
respondent.
The respondent/accused came to his house between 15.00 to 15.30
hrs. and scolded the girls for playing there. Parul and Saroj ran away
whereas, however, the deceased girl was forcibly caught by the respondent
and pushed her into his house and he shut the door.
Shakriben Chandrasinh,
a neighbour who was washing clothes, heard the cries of victim which got
silent after sometimes.
Thereafter Savitaben mother of the deceased girl,
who returned from work at about 16.00 hrs. and not finding her daughter
started searching for the victim along with Shakriben.
A day after the
incident, dead body of the victim was recovered from a nearby field wearing
a white frock with undergarment missing, which was later found from the
hedge falling between the house of the respondent and Shakriben
Chandrasinh.
A complaint was lodged and FIR registered by Arvindbhai
Khatubhai, the father of the victim.
The police started investigation and
recorded the statements of witnesses. Necessary samples were also collected
during the investigation and sent to FSL. The dead body of the deceased
was sent for the post mortem which was conducted by Dr. Shashikant Nagori
between 16.45 hrs. & 17.45 hrs. on 17.8.2003. The post mortem report
mentioned following injuries:-
* Abrasion on both thighs, both knees and bruises over the legs.
* The injuries found on labia majora had a swelling of 3 x 2 cms.
on right majora and abrasion on left majora, such injuries were
possible in an attempted rape. There was penetration on the private
parts of the victim girl.
* The presence of injuries on left mastoid region, which was bone
deep and brain matter had come out of the wound.
* There was haematoma over whole skull on both parietal and
frontal region and blood was oozing out of the left ear.
* There was a depressed fracture of skull on frontal and left
parietal region.
The doctor opined that the injuries were sufficient in ordinary
course of nature to cause death and it was homicidal death.
3. The respondent was arrested after two days i.e. on 19.8.2003 from a
nearby village, who had allegedly fled after committing the offence. On
search, a suicide note purportedly written by the respondent was recovered
from his pocket. Besides, blood stained clothes and blood group of the
deceased was noticed on other articles. He was found to have sustained
injuries on his person, which was recorded in the arrest panchnama.
Upon
disclosure of the accused, the grinding stone used in inflicting injuries
on head of the deceased was recovered from his house. After the recovery
of the stone, a panchnama of recovery of the stone was drawn in the
presence of panch witnesses on 20.8.2003.
Thereafter discovery panchnama
of the articles was drawn which were concealed beneath the steel cupboard.
After the completion of investigation, the charge sheet was filed before
the Ld. Chief Judicial Magistrate, Godhra on 22.8.2003. After committal,
the case was registered as Sessions Case No.4 of 2004 and charge against
the respondent accused was framed under Sections 376,302 and 201 of the
IPC. The respondent denied the charge and claimed to be tried. The
prosecution examined 23 witnesses in support of its case. None was examined
by the accused in his defence. The statement of the respondent was recorded
under Section 313 of the Cr.P.C. On 7.10.2004 the learned Sessions Judge
after examining the oral and documentary evidence, returned the finding of
guilt and convicted the respondent for the offence of rape and murder. The
learned Sessions Judge awarded capital punishment for the offence of murder
u/s 302 and imprisonment for life and fine of Rs.1000/- for the offence of
rape u/s 376 and in default to undergo SI for 3 months.
The record of the
case was forwarded to the High Court u/s 366 of the Cr.P.C. for approval of
the death sentence awarded by the Sessions Court.
The accused also
preferred Criminal Appeal No.1915/2004 before the High Court of Gujarat
against the judgment and order dated 7.10.2004.
The Impugned Judgment:
4. As is clear from the above, the precise charge against the respondent
was of raping the minor girl Komal and thereafter murdering her. The High
Court, on the basis of medical evidence namely the post-mortem report of
the deceased found that it was case of homicidal death. There is no
quarrel about the same and this aspect is not disputed by the respondent
before us as well.
5. As far as charge of rape is concerned, the High Court observed that
there was no direct evidence and medical evidence was the only
circumstantial evidence which could be relied upon.
It discussed the
evidence of Dr. Nagori to this effect, who had conducted the post mortem on
the dead body.
It was found that there was swelling of 3x2 cms on right
labia majora and abrasion over left labia majora.
It is also recorded in
the postmortem notes that as per vagina examination, it was found that
little finger passed with difficulty and there was no internal injury.
The
post mortem notes also indicated abrasions on both thighs, both knees and
bruises over legs.
In his deposition, the doctor has deposed, after
describing the injuries, that the injuries found on labia majora were
possible in an attempted rape.
During cross-examination he deposed that, if
there was penetration of penis in the vagina, there was possibility of
internal injuries. He stated, in terms, that from the post mortem
examination, in the instant case, there was no penetration of penis in the
vagina.
6. On the basis of aforesaid, the High Court acquitted that offence of
rape was not proved by the prosecution beyond reasonable doubt and it
could, at the most, be considered an attempted rape.
The finding of the
trial court recording the conviction for offence of rape under section 376
of the IPC has, accordingly, been set aside.
It is primarily on the ground
that even if it is to be accepted that in a case of rape of a minor,
complete penetration of penis with emission of semen and rupture of hymen
is not necessarily to be established, in the instant case, the medical
evidence clearly suggests that there was no penetration at all i.e. the
factor which influenced the High Court to set aside the conviction based on
section 376, IPC.
7. The High Court, thus, proceeded on the basis that the deceased was
murdered and there was an attempted rape on her.
It then addressed the
central issue viz.
whether the respondent could be connected with the said
murder and attempted rape.
It was a case of circumstantial evidence, in the absence of any eye witness.
After discussing the evidence, the High
Court found that prosecution had failed to establish the chain of
circumstances could connect the accused with the crime.
There were material
contradictions and inconsistencies in the depositions of various witnesses
etc. which did not form a complete chain.
The High Court has, accordingly,
set aside the order of conviction of the trial court as unsustainable and
acquitted the accused of the charges.
It is, inter-alia, held that the
evidence led by the prosecution on last seen together cannot be accepted.
It is not only contradictory, inconsistent and improbable, but also suffers from vice of improvements and therefore, it sounds unreliable.
As regards
injuries found on chest and back of the person of accused are concerned,
which the prosecution tried to show as injuries caused with nail, possibly
by the deceased, the High Court has discounted this prosecution version on
the ground that the Post Mortem note does not indicate presence of any
traces of skin of the accused in the nail of the deceased.
As per the High
Court the investigation is not found to be independent, trustworthy or
reliable, the evidence does not establish a complete chain of circumstances
to connect the accused with the crime.
There are major defects in the
investigations which render it doubtful when the case is founded on
circumstantial evidence. It, thus, set aside the judgment of the Trial
Court on the ground that the conviction cannot be recorded on such scanty,
weak and incomplete evidence.
The Arguments:
8. The learned counsel for the State argued that High Court committed
grave error in holding that there was no complete chain of the
circumstances connecting the respondent to the incident. He pointed out
that certain samples of blood, clay etc. were collected from the spot and
FSM report (Ex.54) was obtained therefrom which was duly proved in the
trial court through witness No.20-Chandubhai Nagjibhai Pargi who had stated
in his deposition that on receiving the message from control room on
17.8.2003 he along with FSL Mobile Van had gone to the place of incident
and collected the following samples:
- Clay with blood from the place of incident.
Clay bearing doubtful spot recovered from the place in between
two legs.
- Control clay recovered from the place at the distance of 5
feet from the dead body.
- Clay bearing pan padiki spittle recovered from the place
at the distance of 7 feet from the dead body.
- One red colour knickers bearing spots from the vada behind
the house of Chandrasinh Laxmansinh Chauhan, situated in
the south direction from the dead body.
9. He further drew the attention of this Court to post mortem
report (Ex.7) containing external examination of the deceased. As per the
said post mortem report, the following aspects were established:
|1. |Condition of the clothes whether | |
| |wet with water, stained with |Stained with blood |
| |blood, soiled with vomit or | |
| |foecal matter. | |
|2. |Injuries to external genitals, |Swelling (hemetomal) 3x2 cm |
| |indication of purging. |over Rt.Labia mejora abrasion|
| | |over lt.labia mejora. |
|3. |Surface wounds and injuries their|a.Abrasions over medical |
| |natural position, dimensions |upper of both thighs. |
| |(measured) and directions to be |b.Abrasions over both knee. |
| |accurately stated: their probable|c.Bruises over both legs. |
| |ages and cause to be noted. | |
10. He also pointed out that opinion as to the cause or probable cause of
death recorded by the Medical Officer was “cause of death is shocked due to
head injury leading to skull injury over brain”. He also pointed out that
cloth of the deceased was stained with blood and there were abrasions over
medial upper both thighs, over both knees and bruises over both legs.
According to the learned counsel, this shows that the deceased was
subjected to sexual assault and murdered.
11. In order to connect the accused with the said incident, the learned
counsel referred to the testimony of PW12, Saroj who was playing along with
Parul and deceased on the fateful day, on the courtyard of the residence of
the accused when the accused reached there and scolded these girls. His
submission was that there was no cross-examination by the defence on this
aspect and from this testimony it stood proved that the deceased was last
seen with the accused, as PW12 had categorically stated that she and Parul
left the place but the deceased remained there. He further submitted that
this was corroborated by the neighbour Shakriben Chandrasinh (PW16) as
well.
12. In nutshell, the submission of the learned counsel for the State was
that the circumstances formed a complete chain of events connecting the
crime to the accused inasmuch as:
(1) the victim was last seen in the company of the accused;
(2) certain samples were collected from the
residence of the accused including plaster bearing blood, blood taken on
thread by rubbing from ground floor of western wall, support (datto) of
wooden plate bearing blood spots, pieces of paper affixed on the metal
barrel, bearing blood spots etc.; the blood on the aforesaid as found was
of “B” Group which is the blood group of the deceased;
(3)clay from thighs with semen from the deceased was collected and semen was found to be of “O” Group which is that of the accused;
(4) the medical evidence, which clearly nails the respondent and there could be no other person who would have committed this crime.
Our Analysis:
13. Since it is a case of circumstantial evidence and the prosecution
case starts with the theory of last seen, the first place is as to
whether
the prosecution has been able to conclusively and beyond reasonable doubt
prove that the deceased was last seen in the company of the respondent.
For
this purpose, as already noted above, the prosecution has relied upon the
testimonies of PW12,PW16,PW17 and PW18.
The paramount question is as to
whether testimonies of these witnesses is reliable.
The High Court has
found certain inherent contradictions in the depositions of the aforesaid
witnesses on the basis of which it has come to the conclusion that it is
difficult to accept their version, which is even contrary to each other
about the details of the events. No doubt PW12, Sarojben was playing with
the deceased and Parul on the grounds of the residence of the accused and
when respondent reached the spot, he asked them to left.
However,
thereafter
whether the deceased remained there and was not seen at all
thereafter till her dead body was found , is a pertinent question.
As per
the prosecution version itself the deceased had left that place; elbeit at
the asking of the respondent who had sent her to the market to purchase
Vimal Gutka and she returned back to the respondent after purchasing the
said Gutka, to hand it over to the deceased.
Whether it is conclusively
proved that she returned back to the respondent?
Here, according to the
High Court, there are various contradictions in the depositions of the
witnesses.
As per PW7, the shopkeeper from where the deceased had gone to
purchase Gutka, the deceased had come to his shop on that date at about 3
p.m. She purchased eatable ( and not Gutka) for Rupee one and then she went
away.
During cross-examination, he stated that it had not happened that
the victim had come to his shop to purchase Vimal Gutka.
So according to
him deceased had come to his shop to purchase some eatable.
He also
admitted that in his statement before the police on 19th August 2003, he
had not stated that the deceased had come to his shop to purchase eatable.
On specific question put to him in the cross-examination as to why he did
not tell the police about the victim’s visit to his shop to purchase
eatable, he did not give any specific reply.
14. As per PW16(Shakriben),who is the neighbour of the respondent, she
had seen the three girls playing in the courtyard of the respondent. She
further stated that the respondent drove away Parul and Saroj and then
caught the victim and pushed her into his house. Thereafter she heard
cries of the victim and then she heard sound of beating. She has further
stated that she went into the house thereafter but was threatened by the
respondent that if she talked to anyone in the town, he would kill her and
her son. She has further stated that the accused had arrived at about 2.30
p.m. on the day of the incident and he was drunk. He tried to push open the
rear door of the house.
The witness said that mother of the accused,
Divaliben had given the key of the house to her and, therefore, she gave
the key to the accused.
The witness has further stated that on the next day
when mother of the victim was searching the victim, she told her that she
had not seen the victim and she joined the search. During cross-
examination, the witness has admitted that she had not stated in her
statement before police that the accused had intimidated her.
She says that
she does not know whether the victim had gone to purchase Gutka packet. The
distance between her house and the house of the accused is 25 to 30 feet.
She says that she did not tell her husband or her son about the incident.
She admits that she did not state before police that, at the time of the
incident, she went into the house after washing clothes and sat in the
house and, at that time, accused had intimidated her that, if she tells
anyone in the village, he would kill her and her son. She admits that, on
the day of incident as well as on the next day, when people were searching
for the girl, she did not tell anyone about the incident.
15. Apart from the aforesaid omissions on the part of PW16 and PW17 in
not mentioning to the police when they gave their statements, immediately
after the incident, the High Court has also analyzed their statements along
with deposition of PW12 and found them to be inconsistent and self-
contradictory in the following manner:
“From depositions of these three witnesses, the prosecution has
tried to establish the circumstances of the accused having been
seen in company of the deceased last. But scrutiny of this
evidence leads us to negative this aspect. According to PW12-
Saroj, she was playing with the victim and Parul. Accused arrived
around 3O’ clock and shouted “Ladidiyo” (meaning young girls).
Therefore, she and Parul ran away and the victim was left behind.
She says that accused sent the victim to purchase a packet of
Vimal. She also says that, thereafter, she went home and was doing
lesson. She saw the victim going with a packet of Vimal to give it
to the accused. Therefore, necessarily, if her say is taken at
face value, then also the victim was seen going to the house of
accused with a packet of Vimal and if she did factually reach
there, at that point of time, neither Saroj nor Parul was present.
Against the above situation emerging from deposition of Saroj,
if deposition of Shakariben (Ex.49) is seen, she says that when
Saroj, the victim and Parul were playing in the courtyard of the
accused, the accused arrived and drove away Parul and Saroj and
caught hold of the victim and pushed her into the house,
whereafter she heard cry of the victim and then sound of beating,
meaning thereby that when the deceased was taken into the house,
that was the last point of time when she was seen in company of
the accused and, at that point of time, both Saroj and Parul were
present, which is just contrary to what Saroj says. Viewed from
another angle, Shakariben does not speak of any even taking place
before the victim was pushed into the house and thereafter the
incident has occurred, as against the say of Saroj that the
accused sent the victim to get a packet of Vimal. Necessarily,
therefore, what Shakariben saw was not the last point of time when
the victim and the accused were together. The victim was seen by
Saroj at a later point of time and also by witness-Himatbhai.
Parul has not been examined by the prosecution as a witness.
Therefore, the evidence regarding the accused seen last in company
of the deceased, as led by the prosecution, is inconsistent and
self-contradictory.
That apart, the conduct of PW16 seems to be unnatural and thus
unworthy of reliance. The High Court has rightly observed that it
does not inspire confidence for several reasons, namely: (1)
though she claims to have the witness the accused pushing the
victim into the house and then hearing her cry followed by sound
of beating, she did not take any steps to rescue her. (2) She did
not even tell about this incident to anyone, including her husband
and son till 19th August 2003 when her statement was recorded. (3)
Even in her statement to the police she has omitted to state the
aforesaid purported facts.(4) On the next day of the incident,
when the search for the victim was on, she still kept quite and
did not disclose the incident to anybody. Strangely, she joins
the group searching for the victim.(5) There is no explanation as
to when and why the respondent could have intimidated her. As per
the sequence of events narrated by her, the respondent came; she
gave him the key of his house; the respondent went to his house
and shouted at girls; the two other girls went away and respondent
pushed the victim into house; and thereafter she (the witness went
to her house). If these sequences are to be seen, there was no
occasion for the accused to intimidate her.
As far as evidence of PW12,Saroj is concerned, she stated that
she had lastly seen the deceased going with packet of Vimal. She
simply presumed that the victim was going to give the said packet
to the accused. However, she did not see the deceased going with
packet of Vimal Gutka to the respondent as she specifically stated
that after seeing the deceased carrying the packet of Vimal she
went home and started doing her lesson. There is no evidence to
show that the deceased reached the house of the accused and met
him. In fact, there is some contradiction even on the purchase of
the item inasmuch as as per PW17 the deceased had purchased
eatable whereas PW-12 says that she was carrying Vimal Gutka. PW17
has specifically said that the deceased had not purchased Vimal
Gutka from him. From the aforesaid testimonies of Saroj Shakariben
the High Court has also observed that from both the evidence taken
together, prosecution story cannot be believed inasmuch as if the
situation is examined from a different angle, if what Saroj says
had happened, then what Shakariben says could not have happened,
because according to Shakariben, on arrival, the accused shouted
at the girls and drove away Parul and Saroj and pushed the
deceased into the house and, if what Shakariben says is correct,
what Saroj says could not have happened. The doubt assumes greater
strength because of certain circumstances which would be discussed
in the paragraphs to follow.
Examined from any angle, the evidence led by the prosecution on
last seen together aspect cannot be accepted. It is not only
contradictory, inconsistent and improbable, but it also suffers
from vice of improvements and, therefore, to us, it sounds
unreliable. The case is founded on circumstantial evidence. This
is one of the major circumstances pressed by the prosecution. We
also find that the investigation is not carried out properly and
does not inspire confidence. The evidence on last seen together
aspect, therefore, cannot be accepted as a link in the chain of
circumstances leading to exclusive hypothesis of guilt of the
accused.”
16. We are in agreement with the aforesaid analysis of the evidence by
the High Court and, therefore, hold that prosecution has not been able to
establish, with clinching evidence that the deceased was seen lastly in the
company of the accused.
17. Even the medical evidence on which strong reliance was placed by the
learned counsel for the State, is of no help to arrive at the conclusion
that guilt of the respondent stands proved beyond reasonable doubt. When
the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was
drawn. In that it is recorded that the accused had abrasions on chest,
back and shoulder caused by nail and also that there was swelling on his
penis and swelling on skin with abrasion. Immediately after his arrest,
the respondent was sent for medical check up. As per the medical report
(Ex.17) there were injuries on chest and back which is described by the
doctor as linear abrasions. There were no foreign particles in his nails.
The doctor also admitted in his cross-examination that he did not notice
any injury on the penis of the accused. Therefore, this shows
contradiction between the recording of medical condition in the Panchnama
and the medical examination conducted by the doctor, in so far as they
relate to the injury on the penis of the respondent. High Court has
rightly observed that the Panchnama has recorded abrasions and therefore it
could not have disappeared within such a short time. It reflects adversely
on the prosecution case. As regards injuries found on chest and back of
the respondent, they are tried to be shown as injuries caused with nail of
the deceased. However, the post mortem note does not indicate presence of
any traces of skin of the accused in nail of the deceased. Further,
comments of the High Court in the impugned judgment about the medical
evidence, pertinent for our purposes, are reproduced below as we entirely
agree with the said analysis:
“From the above discussion of evidence, it is clear that even
according to doctor, there was no bleeding injury on penis of
the accused. There was no bleeding injury to the deceased
either. There were no internal injuries in the vagina of the
deceased. Against this, if the results of vaginal swab are seen,
presence of blood and semen is found. How this could have been
found is a question which has remained unexplained and
unanswered. This would cast heavy doubt about the reliability of
investigation. That apart, the group has remained unidentified
so far as vaginal swab is concerned.
If evidence of Shakariben is seen and, even as per prosecution
case, the incident occurred in the house of the accused and this
is tried to be proved through deposition of Shakariben, who says
that accused pushed the deceased into his house and, thereafter,
she heard cry of the deceased and then sound of beating. As per
the prosecution case, blood stains of the group of the deceased
were found in the house of the accused at various places. No
trace of semen was found in the house of the accused. But,
surprisingly, at the place where the dead body was found, semen
was found on the ground. That was of the group of the accused.
If the incident occurred in the house, the traces of semen ought
to have been found in the house and not at the place where the
dead body was found. No motive is indicated for the accused to
murder the deceased immediately after pushing her into the house
and, if the rape or attempted rape was committed in the house
followed by alleged murder, there would have been traces of
semen in the house. These factors have remained unexplained and
seem to have gone unnoticed by the trial court.”
18. The High Court has also expressed its doubts on recovery of
grinding stone from the house of the respondent which was allegedly used
for committing murder of the deceased. It is pointed out by the High Court
that evidence suggests that the officer of the FSL was summoned on 19th
August 2003 who inspected the place of incident and instructed the Inquiry
Officer to recover the stone which was, accordingly, recovered. It is so
stated in his report as well as in his deposition. Thus, as per the
deposition of the officer of FSL, stone was recovered on 19th August 2003.
As against this, as per discovery Panchnama drawn on 23rd August 2003 the
said grinding stone was recovered from beneath steel cupboard at the
instance of the respondent. How this recovery could have taken place if
the stone had already been recovered on 19th August 2003. This casts doubt
about the aforesaid documents and the discovery of stone itself.
19. There is another aspect highlighted by the High Court which is very
pertinent and cannot be ignored. After the incident when sniffer dog was
brought to the site. The said dog had tracked to the house of PW16 and not
the respondent.
In fact, on this basis the son of PW 16 was even taken
into custody by the police and was detained for 2 days. Thereafter, he was
allowed to go inasmuch, as per the police he had not committed any offence.
This version has come from the testimony of PW16 herself. On the other
hand, I.O. has totally denied that son of PW16 was ever detained for 2
days. There is no such entry in the daily diary as well. From this
evidence appearing on record, the High Court has concluded that
investigation cannot be considered as honest inasmuch as it would indicate
to two possibilities, namely:
(1) The investigating officer did not detain or interrogate the son of
PW16 for 2 days. If that is so he failed in his duty when the sniffer
dog tracked to the house of PW16.
(2) If I.O. had detained the son of PW16, then case diary does not
record the events correctly and he is not telling the truth before the
Court.
That apart, it also speaks volumes about the reliability of the
investigation and evidence collected, more so when no explanation is coming
forward as to why the son of PW16 was released by the police and the
respondent arrested.
20. We, thus, agree with the findings of the High Court that the evidence
led by the prosecution does not establish a complete chain of circumstances
to connect the accused with the murder of Komal, the deceased. There are
significant defects and shortcomings in the investigation; witnesses have
come out with contradictory version; and have made significant improvements
in their versions in their depositions in the Court. In a case of
circumstantial evidence, it would be unwise to record conviction on the
basis of such a scanty, weak and incomplete evidence. As the prosecution
has not been able to prove the charges beyond reasonable doubt, agreeing
with the conclusions of the High Court we dismiss the present appeal.
………………………………….J.
(K.S.Radhakrishnan)
………………………………..J.
(A.K.Sikri)
New Delhi,
January10, 2014
