Sections 376, 302 and 201 of Indian Penal Code - Non- mentioning of Name in FIR - not fatal - Last seen theory proved - Confessional statement of Accused was duly corroborated - Apex court held that Lower courts rightly convicted the accused - dismissed the appeal =
Whether the absence of name of the accused in the FIR points towards the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply the last seen theory to
establish the guilt of the accused?
Whether the circumstantial evidence in the present case indicate towards
the guilt of the accused and whether these evidences are sufficient to
establish the guilt of the accused?
In the case in hand, the deceased child was taken to the backyard of the
mill by the accused and the same was seen by PW 5 and PW 12. The deceased
child went missing since then and was found dead the next morning. The
accused did not explain why did he take the child to the backyard. On the
other hand, he confessed to his crime which was corroborated by the
recovery of a shawl at the instance of the accused himself in the presence
of witnesses. Therefore, in the light of the principle laid down by this
Court, we are of the opinion that the High Court was justified in holding
the accused guilty of rape and murder of the deceased child. We accordingly
answer this point in favour of the respondent.
It is true that in the present case, there is no direct evidence
which prove that the rape and murder of the deceased child was committed by
the appellant. There are no witnesses available on record who have
testified having witnessed the appellant committing the crime. However, all
the circumstances point towards the appellant as being the author of the
crime in the present case.
“5. The mode of evaluating circumstantial evidence has been stated by this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is
as follows:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should, in the first instance, be fully established, and all
the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.”
19. Again, in the present case, the recovery of the body of the deceased
child from the same well where PW-8 had seen the accused appellant the
previous night throwing something in the well provides for a strong
circumstantial evidence.
The unusual behaviour of the accused
in taking the
deceased child to the backyard of the mill,
sending of his employee for
lunch at the same time and
also the opening the mill in the odd hours of
the night the very same evening points towards the guilt of the accused.
We
answer this point in favour of the respondent.
20. Since, all the points are answered in favour of the respondent, we
hold that the High Court was correct in upholding the decision of the
Sessions Judge in convicting the accused of rape and murder of the deceased
child. We therefore, sustain the decision of the High Court and hold that
the charges under Sections 376, 302 and 201 of IPC are proved against the
appellant. His sentence of life imprisonment and fine of Rs.5000/- and in
default one year rigorous imprisonment under Section 376, life imprisonment
and fine of Rs.5000/- and on default, one year rigorous imprisonment under
Section 302 and also 3 years rigorous imprisonment and fine of Rs.1000/-
and on default, rigorous imprisonment of six months under section 201 of
IPC is confirmed. All sentences are to run concurrently. Accordingly, the
appeal is dismissed as the same is devoid of merit.
2014 - Aug.part - http://judis.nic.in/supremecourt/filename=41800
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.592 OF 2010
RAMESH ……APPELLANT
Vs.
STATE THROUGH INSPECTOR OF POLICE ……RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
This appeal is filed by the appellant being aggrieved by the judgment
and order dated 19.02.2008 passed by the Madurai Bench of High Court of
Madras in Criminal Appeal (MD) No. 3 of 2007 urging various grounds and
legal contentions and prayed to set aside the conviction and sentence
awarded against him and acquit him from the charges framed against him.
2. The brief facts in nutshell are stated hereunder with a view to
appreciate rival legal contentions urged on behalf of the parties:-
The prosecution charged the appellant under Sections 376, 302 and 201
of Indian Penal Code. The appellant pleaded not guilty. The trial was
conducted on behalf of the respondent-prosecution and in order to
substantiate the charges, it examined 22 witnesses and relied on 27
exhibits and 4 material objects. The trial court on the basis of evidence
adduced by the prosecution has examined the appellant under Section 313 of
the Cr.P.C. regarding incriminating circumstances found in the evidence of
the prosecution. The trial court recorded the finding of fact on
appreciation of legal evidence on record and convicted the accused and
sentenced him for life imprisonment holding that the charges made against
him under Sections 376, 302 and 201 IPC were proved and punishment of life
imprisonment and payment of fine of Rs.5000/-, in default to undergo one
year R.I. under Section 376 IPC, life imprisonment and payment of fine of
Rs.5000/- in default to undergo one year R.I. under Section 302 IPC and 3
years R.I. and payment of fine of Rs.1000/- in default to undergo 6 months
R.I. under Section 201 IPC was awarded to him and further held that all
the sentences awarded against the appellant was to run concurrently.
3. The case of the prosecution is that on 3.11.2005 at about 11.00 am,
deceased-Seeni Nabra, aged 8 years along with her grandmother (PW-3) went
to the rice mill of the appellant to get the grains for grinding. But
having seen that the front portion of the mill is closed, PW-3 asked the
deceased-child to go and ask the appellant to open the back portion of the
mill and it was opened. Accordingly, PW-3 handed over the grains to the
appellant and came to the house of a neighbour. Sometime later, the
deceased-child asked Rs.2/- from PW-3 for taking juice. Accordingly, she
gave the same to her. Thereafter, the deceased-child went to the mill and
asked the appellant whether the grains were grinded. At that time, she was
taken to the back side of the mill by the appellant. Since, the deceased-
child did not return, PW-3 having waited for some time went home. It is
the further case of the prosecution that the appellant took the deceased-
child to the backyard which was seen by an employee (PW-12) of the mill.
The appellant permitted PW-12 to go for lunch and PW-12 left for lunch.
Then, the accused committed rape on the deceased-child and due to
neurogenic shock she died. Since, the deceased-child did not come back, PW-
3 informed her father (PW-1). Thereafter, PW-1, PW-3 and others searched
for the deceased-child. At about 10.00 pm, PW-6, the owner of the textile
shop situated just opposite to the mill of the appellant and the night
watchman (PW-7) posted for security in that area found the appellant
opening the mill unusually at that time. On being questioned, the appellant
said that since the next day is Ramzan, he opened the mill for doing work.
At about 10.15 pm, PW-8, whose house is situated exactly behind the mill
came to attend the call of nature and at that time, he heard a noise coming
from the well side and he found the accused there and he questioned the
appellant as to what he was doing during night hours. Then, the accused
told that since the next day was Ramzan, he was throwing the garbage into
the well. The dead body of the deceased-child was found by PW-4 inside the
well and having seen the same, PWs 1 to 3 were informed. PW-1, the father
of the deceased-child went over to the respondent-police station, where
PW-20, the Sub-Inspector of Police was on duty. He gave the complaint
(marked as Ex.-P1) to PW-20, the aforesaid Sub-Inspector on the basis of
which, a case came to be registered as FIR No. 146/2005 under Section 174
Cr.P.C. Ex.-P23 (the FIR) was dispatched to the court. The dead body was
taken out from the well. The place of occurrence and the dead body were
photographed by PW-9 and marked as M.O.1 (series). Thereafter, the dead
body was sent to the Government Hospital, Rameswaram. The Inspector of
Police, Rameswaram (PW-22) on receipt of the copy of the FIR, proceeded to
the Government Hospital, Rameswaram and conducted inquest on the dead body
of the deceased in the presence of the witnesses and panchayatdars. He
prepared the inquest report marked as Ex.-P24. Then, he gave a requisition
to the doctor for conducting post-mortem on the dead body of the deceased-
child. The Doctor (PW-15) of the Government Hospital, Rameswaram, on
receipt of the requisition, conducted post-mortem on the dead body of the
deceased-child and issued post-mortem report(Ex.-P8) wherein he stated that
the decease-child would appear to have died within 24 to 48 hours prior to
the post-mortem and the death was due to neuorogenic shock. It was further
the case of the prosecution that PW-21 took up the investigation and
recorded the statement of the witnesses. He went to the scene of occurrence
and made an inspection in the presence of the witnesses and prepared the
observation mahazar (Ex.-P2) and the rough sketch (Ex.-P25). After getting
the medical opinion, the charges were altered to Sections 376 and 302 IPC.
Ex.-P26, the amended FIR was dispatched to the court. On 9.11.2005, the
appellant was arrested by the investigation officer in the presence of the
witnesses. The appellant made confessional statement voluntarily, which was
recorded in the presence of the witnesses, the admissible part of which was
marked as Ex.-P3. Following the same, the accused took the investigation
officer to the Mill and produced the M.O.2 (Shawl) which was worn by the
deceased-child at the time of the occurrence and the same was recovered
under a cover of mahazar.
4. The appellant identified the place where he had committed the
offence. Then, the Investigation Officer made an inspection and prepared
Ex.-P5, the observation mahazar and Ex.-P27, the rough sketch. Following
the same, the appellant was sent for medical examination. PW-14, the doctor
attached to the Government Hospital, Ramanathapuram, medically examined him
and issued Ex.-P7, the age certificate. Then, the appellant was medically
examined by PW-13, the doctor attached to Ramanathapuram, Government
Hospital and he issued Ex.-P6, the certificate stating that the appellant
is found to be potent. All the material objects recovered from the place of
occurrence and from the dead body of the deceased-child as also the
material objects recovered from the appellant were sent for chemical
analysis by the Forensic Science Department. Ex.-P9, the Chemical Analyst’s
report and Ex.-P22, the Hyoid Bone report were received. The Inspector of
Police (PW-22) recorded the statement of the witnesses. On completion of
the investigation, the Investigation Officer filed the final report before
the learned Magistrate Court. The case was committed to the Court of
Sessions for trial and necessary charges were framed. The prosecution
examined 22 witnesses and relied on 27 exhibits and 4 material objects on
completion of the evidence on the side of the prosecution. The appellant
was examined under Section 313 Cr.PC regarding the incriminating
circumstances found in the evidence of prosecution witnesses which was
denied by him. The trial court on appreciation of evidence on record found
that the appellant is guilty of the charges levelled against him and he was
convicted and sentenced for the offences as stated above.
5. Aggrieved by the said order of the learned trial judge, an appeal was
filed by the appellant before the Division Bench of Madurai Bench of the
Madras High Court urging various legal contentions and questioning the
correctness of the findings recorded by the trial court against the
appellant and holding that he was guilty of the same. The High Court on re-
appreciation of the evidence on record did not find any infirmity in either
factual or legal aspect in the judgment of the trial court and sustained
the same by passing the impugned judgment. The correctness of the same is
challenged in this appeal framing certain substantial questions of law
urging the following grounds.
6. It is contended on behalf of the appellant that the prosecution has
failed to comply with mandatory procedures as required under Section 174(1)
and (2) of Cr.PC i.e. non sending of the intimation recorded under Section
174(1) and the report under Section 174 (2) of Cr.PC (reasonable suspicion
on death) to the nearest Executive Magistrate or Sub-Divisional Magistrate
who is empowered to hold preliminary inquest enquiry and such
irregularities on the part of the investigating agency vitiates the
entire proceedings under Section 461 of Cr.PC. Mr. S. Mahendran, learned
counsel for the appellant placed reliance upon the judgment of this Court
in Raj Kumar Singh v. State of Rajasthan[1] regarding not naming the
accused in the FIR is fatal to the prosecution case. It is further
contended that this case is based on the circumstantial evidence on which
the trial court as well as the first appellate court while considering the
said evidence on record have relied upon and convicted and sentenced the
appellant for offences charged against him. Therefore, the benefit of doubt
is available to the accused which should have been adopted and the courts
below should have passed the order of acquittal. In support of the
aforesaid submission, he has placed reliance upon judgment of this Court in
the case of Baldev Singh v. State of Haryana[2] and further contended that
first charge of rape on the appellant is not proved, automatically the
second charge of murder under Section 302 IPC does not survive for
consideration. This aspect of the matter has not been considered properly
by the courts below. Therefore, the impugned judgment is liable to be set
aside and further strong reliance was placed on the judgment in Raghunath
v. State of Haryana and Anr.[3] in support of the contention that medical
evidence does not support the prosecution case and hence, the benefit of
reasonable doubt shall go in favour of the appellant. In support of this
submission he also placed reliance upon the judgment of this Court in
Devinder Singh & Ors. v. State of Himachal Pradesh[4]. And another legal
ground urged on behalf of the appellant is that the criminal court
recognizes and accepts the inadmissible evidence, therefore, the finding
recorded holding both charges proved against him is erroneous in law for
want of accepting the inadmissible evidence. Therefore, the said finding is
liable to be set aside. Further reliance was placed on the evidence of the
doctor (PW-15) who has stated that no external injuries were found on the
deceased-child. Therefore, the question of death due to neurogenic shock is
wholly untenable as the same is not supported by the doctor’s evidence.
7. It is further contended that the alleged recovery of the dead body of
the deceased-child from the well was required to be corroborated with
medical evidence. The same has not been proved by the prosecution and
further the courts below have mis-directed themselves with regard to the
investigation made by PW-21 and the circumstances placed on record on the
basis of evidence of PWs.-1, 2, 3, 5, 8 and 12 are nothing but improved
versions. Therefore, the courts below should not have placed reliance on
such evidence to convict and sentence the appellant on the basis of said
evidence which is not legally justified.
8. It is the case of the prosecution that the courts below failed to
consider the vital evidence of the doctor (PW-15). During the examination-
in-chief, the doctor clearly stated that there is no symptom on the body
which indicated drowning in water and the symptom found on the body could
be that of wrinkling of skin and becoming pale etc. that is why he has not
mentioned this fact in his certificate. On the suggestion made to him
regarding non mentioning of rigor mortis found on the body, the same was
denied by him. Though, he answered that he has not mentioned the same, in
the post mortem report but he conceded to the approximate time of death on
the basis of rigor mortis found in the body and also admitted that he has
not mentioned the external injuries found on the body as to whether they
were ante or post mortem in nature. He also suggested that normally in the
first coitus abrasions, contusions are possible on the vaginal part but in
this case they are all absent. Further, the courts below ignored the
evidence namely the Police inquest requisition to the doctor for conducting
post-mortem on the deceased-child. Even on the police requisition, it was
not mentioned that it is the case of rape and murder. According to the
prosecution, the dead body found in the well, only legs were visible inside
the well, if that is so, there should have been definite injury on the
skull and other limbs but they are all absent in the case in hand as could
be seen from the post-mortem report which creates doubt on the alleged
recovery of dead body from the well.
9. Further, the courts below have failed to consider the evidence of
investigation officer. PW-21, who is the I.O. in this case has brought
several divergent facts among the prosecution witnesses which are believed
by the courts below without proper analysis of the said evidence for
convicting the appellant. According to the investigation officer, he
arrested the appellant on 9.11.2005 at Akkalmadam Bus stop which is
contradictory with the evidence of PW-12, co-labour in the mill, who had
stated that he and the appellant were in police custody from 4.11.2005
onwards. Later, he was treated as prosecution witness. Therefore, the
alleged arrest of the appellant as stated by IO in his evidence is not
correct and further at the instance of the appellant, the material object
(shawl) alleged to have worn by the deceased was recovered. However, this
fact and identity has not been elicited from any of the witnesses in their
examination in chief. He said that he examined the Sub-Inspector who
registered an FIR only on 9.11.2005 i.e. after five days of the incident.
It is further stated by him that he saw the body firstly at Government
Hospital mortuary. However, he admitted that if the body is brought to the
hospital directly, the particulars were recorded in an accident register
and immediate intimation would be given to police station. In the case in
hand no such formalities have been complied with by the hospital authority.
When PW-21 was questioned with regard to mentioning on Column No. 25 in
Ex.-P-21, he admitted that “while going for having juice, somebody cornered
the girl and molested her inside the house”. But, in the post-mortem
requisition, he did not ask to conduct examination as to whether any rape
has been committed on her. At the same time, he is not in a position to
explain as to how he has mentioned these particulars in the inquest
proceedings. He further admitted that Nazirdeen (PW-8), had alleged to
have heard noise from the well and seen the appellant going on back side of
the mill at 10.30 pm. The concerned house is a single room house and he has
not mentioned either in his observation mahazar or in the rough sketch that
“the house consists of any backyard entry, bathroom and latrine”. He
further admitted that he has not mentioned that there is any backyard entry
in the Kathanjenna’s house (who is alleged to have seen the body inside the
well). He had also further admitted that he has not prepared any
observation mahazar or rough sketch about the inside of the mill. Though he
examined the adjacent shop owners but those shops have not been shown in
his observation mahazar. It is further stated by him that during the course
of enquiry, PW-1 has not stated that he did not receive any information
from his mother in law. He further admitted that PW-3 has not stated
anything about the appellant who collected things for grinding and returned
the same.
10. Further, the courts below have not considered the evidence of PW-3
who has stated in her second enquiry that her granddaughter’s slippers were
found in front of Kathun’s house. Kathun Jenna has not stated in any
enquiry that she went to close the well with lid where she had seen two
legs inside the well. It is further contended that the trial court on wrong
appreciation of evidence came to the erroneous conclusion on the charges to
record its finding against the appellant on the basis of incredible and
inconsistent circumstantial evidence. The conviction recorded by the trial
court for the simple reason that the appellant has confessed that after he
ravished the deceased, he threw the body inside the well and to corroborate
the same the investigation officer has recovered a shawl at the instance of
the appellant which is not admissible unless the recovery of shawl is
proved from the other cogent evidence. It is contended by the learned
counsel that the conviction of the appellant is based on the basis of
surmises and conjectures, therefore, he has prayed for setting aside the
conviction and sentence awarded against him.
11. On the other hand, Mr. M.Yogesh Kanna, the learned counsel for the
respondent-prosecution sought to justify the concurrent findings and
reasons recorded on the charges after proper analysis and re-appreciation
of evidence on record by both the trial court and the High Court after
careful examination of the evidence on record having regard to the charges
levelled against the appellant. He has placed reliance upon the judgment in
Raj Kumar Singh (supra) wherein it is stated that not naming the accused in
the FIR does not vitiate the prosecution case and he further placed
reliance upon the confessional statement of the appellant under Section 27
of the Evidence Act regarding recovery of the shawl which fact is spoken to
by PW-1 and he placed reliance upon the judgment in Mritunjoy Biswas v.
Pranab Alias Kuti Biswas and Anr.[5] and Ramnaresh & Ors. v. State of
Chhattisgarh[6] regarding non mentioning of the appellant in the FIR does
not vitiate the prosecution case. The last seen theory of the deceased with
the appellant support the finding and reasons recorded by the courts below
in framing charges against the appellant by placing reliance upon the
judgment in Budhuram v. State of Chhattisgarh[7].
12. The learned counsel on behalf of the prosecution invited our
attention to the evidence of the prosecution which is based on recording
the evidence of PW-12 and medical evidence of PW-15 with regard to
the age of the appellant, his potency for intercourse which is established
and further the oral evidence supported by the medical evidence,
particularly, PW-13 and PW-15 justify the conviction and sentence awarded
against the appellant on the charges levelled against the appellant.
Therefore, it is urged that the legal submissions urged on behalf of the
appellant by placing reliance upon the judgments of this Court which are
referred to above do not support the case of the appellant. Therefore, the
learned counsel of the prosecution urged not to interfere with the
concurrent finding of fact which is based on proper re-valuation of legal
evidence on record. The same is supported by medical evidence. Though some
evidence is circumstantial evidence, the findings of the courts below are
supported by cogent evidence on record. Hence, the learned counsel
requested for dismissal of the appeal by affirming the conviction and
sentence awarded against the appellant.
13. With reference to the above rival contentions urged on behalf of the
parties, we have examined very carefully the entire evidence on record with
a view to find out the correctness of the findings recorded on the charges
levelled against the appellant.
14. Three main points come up for the consideration in the present case:
Whether the absence of name of the accused in the FIR points towards the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply the last seen theory to
establish the guilt of the accused?
Whether the circumstantial evidence in the present case indicate towards
the guilt of the accused and whether these evidences are sufficient to
establish the guilt of the accused?
Answer to point no. 1
15. We intend to address each contention separately and begin with the
first contention of the appellant/ accused that his name did not appear for
the first time in the FIR and mention of his name was only an improvement
of the first version. It has been mentioned by the High Court in the
impugned judgment that the FIR- Ex. P1 initially did not mention the name
of the accused and on the other hand, PW-1, father of the deceased child
had suspected one of his relatives for the offence. It was however,
revealed after investigation that it was the accused who committed the act
and the police in fact was proceeding in the right path. The involvement of
the accused has been further corroborated by the recovery of the shawl of
the deceased on the basis of the confession of the accused which was made
in the presence of witnesses. We intend to concur with the decision of the
High Court that non mentioning of the name in the initial FIR is not fatal
to the case of the prosecution. It has been held by this Court in the case
of Jitender Kumar v. State of Haryana[8]:-
“16. As already noticed, the FIR (Ext. P-2) had been registered by ASI Hans
Raj, PW 13 on the statement of Ishwar Singh, PW 11. It is correct that the
name of accused Jitender, son of Sajjan Singh, was not mentioned by PW 11
in the FIR. However, the law is well settled that merely because an accused
has not been named in the FIR would not necessarily result in his
acquittal. An accused who has not been named in the FIR, but to whom a
[pic]definite role has been attributed in the commission of the crime and
when such role is established by cogent and reliable evidence and the
prosecution is also able to prove its case beyond reasonable doubt, such an
accused can be punished in accordance with law, if found guilty. Every
omission in the FIR may not be so material so as to unexceptionally be
fatal to the case of the prosecution. Various factors are required to be
examined by the court, including the physical and mental condition of the
informant, the normal behaviour of a man of reasonable prudence and
possibility of an attempt on the part of the informant to falsely implicate
an accused. The court has to examine these aspects with caution. Further,
the court is required to examine such challenges in the light of the
settled principles while keeping in mind as to whether the name of the
accused was brought to light as an afterthought or on the very first
possible opportunity.
17. The court shall also examine the role that has been attributed to an
accused by the prosecution. The informant might not have named a particular
accused in the FIR, but such name might have been revealed at the earliest
opportunity by some other witnesses and if the role of such an accused is
established, then the balance may not tilt in favour of the accused owing
to such omission in the FIR.
18. The court has also to consider the fact that the main purpose of the
FIR is to satisfy the police officer as to the commission of a cognizable
offence for him to conduct further investigation in accordance with law.
The primary object is to set the criminal law into motion and it may not be
possible to give every minute detail with unmistakable precision in the
FIR. The FIR itself is not the proof of a case, but is a piece of evidence
which could be used for corroborating the case of the prosecution. The FIR
need not be an encyclopaedia of all the facts and circumstances on which
the prosecution relies. It only has to state the basic case. The attending
circumstances of each case would further have considerable bearing on
application of such principles to a given situation. Reference in this
regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v.
State of M.P.”
Therefore, the contention of the appellant that since his name did not
appear in the FIR, he is entitled to acquittal, is not maintainable. We
accordingly, answer this point in favour of the respondent.
Answer to point no. 2
16. It is the case of the prosecution that P.W. 3, the grandmother of the
accused had sent the child to see whether the floor was grinded. However,
when the child did not return for some time, P.W. 3 went home. At this
juncture, there is evidence through PW 5 and PW 12 who were employees under
the accused that the accused took the child to the backyard while he
unusually permitted PW 12 to go for lunch. Further, the accused could not
explain the need of taking an 8 year old child to the backyard. In this
aspect of the last seen theory, it has been held by this Court in the case
of Kusuma Ankama Rao v. State of Andhra Pradesh[9] as under:
“10. So far as the last-seen aspect is concerned it is necessary to take
note of two decisions of this Court. In State of U.P. v. Satish it was
noted as follows: (SCC p. 123, para 22)
“22. The last-seen theory comes into play where the time gap between the
point of time when the accused and the deceased were seen last alive and
when the deceased is found dead is so small that possibility of any person
other than the accused being the author of the crime becomes impossible. It
would be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that the deceased and
the accused were seen together by witnesses PWs 3 and 5, in addition to the
evidence of PW 2.”
(emphasis laid by this Court)
In Ramreddy Rajesh Khanna Reddy v. State of A.P. it was noted as follows:
(SCC p. 181, para 27)
“27. The last-seen theory, furthermore, comes into play where the time gap
between the point of time when the accused and the deceased were last seen
alive and the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime becomes
impossible. Even in such a case the courts should look for some
corroboration.”
In the case in hand, the deceased child was taken to the backyard of the
mill by the accused and the same was seen by PW 5 and PW 12. The deceased
child went missing since then and was found dead the next morning. The
accused did not explain why did he take the child to the backyard. On the
other hand, he confessed to his crime which was corroborated by the
recovery of a shawl at the instance of the accused himself in the presence
of witnesses. Therefore, in the light of the principle laid down by this
Court, we are of the opinion that the High Court was justified in holding
the accused guilty of rape and murder of the deceased child. We accordingly
answer this point in favour of the respondent.
Answer to point no. 3
17. On the date of occurrence, at about 10:00 pm, the accused opened the
mill unusually at odd hours. The same was witnessed by PW 6, the textile
shop owner whose shop was situated opposite the mill and also PW 7, who was
the night watchman. Both had questioned the accused regarding this odd
behaviour to which he answered that since the next day is Ramzan, he came
for grinding the flour. Another strong circumstance was the evidence of PW
8 whose house is situated exactly behind the mill. When PW 8 came out for
attending the call of nature at 10:15 pm, he heard a noise from the well
which is situated behind the mill and on seeing the accused proceeding
towards the mill, he stopped the accused and asked as to what he was doing.
To this, the accused answered that the accused was throwing garbage in the
well since the next day is Ramzan. Since the dead body was found next day
from the well, circumstantial evidence points the involvement of the
accused in throwing the dead body of the child in the well the previous
night. The High Court therefore, is justified in construing that the
appellant/accused had kept the dead body in the mill and threw the dead
body in the well at about 10:15 pm.
18. It is true that in the present case, there is no direct evidence
which prove that the rape and murder of the deceased child was committed by
the appellant. There are no witnesses available on record who have
testified having witnessed the appellant committing the crime. However, all
the circumstances point towards the appellant as being the author of the
crime in the present case. It has been held by five judge bench of this
Court in the case of Govinda Reddy & Anr. v. State of Mysore[10] as under:
“5. The mode of evaluating circumstantial evidence has been stated by this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is
as follows:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should, in the first instance, be fully established, and all
the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.”
19. Again, in the present case, the recovery of the body of the deceased
child from the same well where PW-8 had seen the accused appellant the
previous night throwing something in the well provides for a strong
circumstantial evidence. The unusual behaviour of the accused in taking the
deceased child to the backyard of the mill, sending of his employee for
lunch at the same time and also the opening the mill in the odd hours of
the night the very same evening points towards the guilt of the accused. We
answer this point in favour of the respondent.
20. Since, all the points are answered in favour of the respondent, we
hold that the High Court was correct in upholding the decision of the
Sessions Judge in convicting the accused of rape and murder of the deceased
child. We therefore, sustain the decision of the High Court and hold that
the charges under Sections 376, 302 and 201 of IPC are proved against the
appellant. His sentence of life imprisonment and fine of Rs.5000/- and in
default one year rigorous imprisonment under Section 376, life imprisonment
and fine of Rs.5000/- and on default, one year rigorous imprisonment under
Section 302 and also 3 years rigorous imprisonment and fine of Rs.1000/-
and on default, rigorous imprisonment of six months under section 201 of
IPC is confirmed. All sentences are to run concurrently. Accordingly, the
appeal is dismissed as the same is devoid of merit.
……………………………………………………J. [DIPAK MISRA]
……………………………………………………J. [V. GOPALA GOWDA]
New Delhi, August 1, 2014
-----------------------
[1]
(2013) 5 SCC 722
[2] (2008) 14 SCC 768
[3] (2003) 1 SCC 398
[4] (2003) 11 SCC 488
[5] (2013) 12 SCC 796
[6] (2012) 4 SCC 257
[7] (2012) 11 SCC 588
[8] (2012) 6 SCC 204
[9] (2008) 13 SCC 257
[10] AIR 1960 SC 29
-----------------------
-27-
Whether the absence of name of the accused in the FIR points towards the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply the last seen theory to
establish the guilt of the accused?
Whether the circumstantial evidence in the present case indicate towards
the guilt of the accused and whether these evidences are sufficient to
establish the guilt of the accused?
In the case in hand, the deceased child was taken to the backyard of the
mill by the accused and the same was seen by PW 5 and PW 12. The deceased
child went missing since then and was found dead the next morning. The
accused did not explain why did he take the child to the backyard. On the
other hand, he confessed to his crime which was corroborated by the
recovery of a shawl at the instance of the accused himself in the presence
of witnesses. Therefore, in the light of the principle laid down by this
Court, we are of the opinion that the High Court was justified in holding
the accused guilty of rape and murder of the deceased child. We accordingly
answer this point in favour of the respondent.
It is true that in the present case, there is no direct evidence
which prove that the rape and murder of the deceased child was committed by
the appellant. There are no witnesses available on record who have
testified having witnessed the appellant committing the crime. However, all
the circumstances point towards the appellant as being the author of the
crime in the present case.
“5. The mode of evaluating circumstantial evidence has been stated by this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is
as follows:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should, in the first instance, be fully established, and all
the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.”
19. Again, in the present case, the recovery of the body of the deceased
child from the same well where PW-8 had seen the accused appellant the
previous night throwing something in the well provides for a strong
circumstantial evidence.
The unusual behaviour of the accused
in taking the
deceased child to the backyard of the mill,
sending of his employee for
lunch at the same time and
also the opening the mill in the odd hours of
the night the very same evening points towards the guilt of the accused.
We
answer this point in favour of the respondent.
20. Since, all the points are answered in favour of the respondent, we
hold that the High Court was correct in upholding the decision of the
Sessions Judge in convicting the accused of rape and murder of the deceased
child. We therefore, sustain the decision of the High Court and hold that
the charges under Sections 376, 302 and 201 of IPC are proved against the
appellant. His sentence of life imprisonment and fine of Rs.5000/- and in
default one year rigorous imprisonment under Section 376, life imprisonment
and fine of Rs.5000/- and on default, one year rigorous imprisonment under
Section 302 and also 3 years rigorous imprisonment and fine of Rs.1000/-
and on default, rigorous imprisonment of six months under section 201 of
IPC is confirmed. All sentences are to run concurrently. Accordingly, the
appeal is dismissed as the same is devoid of merit.
2014 - Aug.part - http://judis.nic.in/supremecourt/filename=41800
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.592 OF 2010
RAMESH ……APPELLANT
Vs.
STATE THROUGH INSPECTOR OF POLICE ……RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J.
This appeal is filed by the appellant being aggrieved by the judgment
and order dated 19.02.2008 passed by the Madurai Bench of High Court of
Madras in Criminal Appeal (MD) No. 3 of 2007 urging various grounds and
legal contentions and prayed to set aside the conviction and sentence
awarded against him and acquit him from the charges framed against him.
2. The brief facts in nutshell are stated hereunder with a view to
appreciate rival legal contentions urged on behalf of the parties:-
The prosecution charged the appellant under Sections 376, 302 and 201
of Indian Penal Code. The appellant pleaded not guilty. The trial was
conducted on behalf of the respondent-prosecution and in order to
substantiate the charges, it examined 22 witnesses and relied on 27
exhibits and 4 material objects. The trial court on the basis of evidence
adduced by the prosecution has examined the appellant under Section 313 of
the Cr.P.C. regarding incriminating circumstances found in the evidence of
the prosecution. The trial court recorded the finding of fact on
appreciation of legal evidence on record and convicted the accused and
sentenced him for life imprisonment holding that the charges made against
him under Sections 376, 302 and 201 IPC were proved and punishment of life
imprisonment and payment of fine of Rs.5000/-, in default to undergo one
year R.I. under Section 376 IPC, life imprisonment and payment of fine of
Rs.5000/- in default to undergo one year R.I. under Section 302 IPC and 3
years R.I. and payment of fine of Rs.1000/- in default to undergo 6 months
R.I. under Section 201 IPC was awarded to him and further held that all
the sentences awarded against the appellant was to run concurrently.
3. The case of the prosecution is that on 3.11.2005 at about 11.00 am,
deceased-Seeni Nabra, aged 8 years along with her grandmother (PW-3) went
to the rice mill of the appellant to get the grains for grinding. But
having seen that the front portion of the mill is closed, PW-3 asked the
deceased-child to go and ask the appellant to open the back portion of the
mill and it was opened. Accordingly, PW-3 handed over the grains to the
appellant and came to the house of a neighbour. Sometime later, the
deceased-child asked Rs.2/- from PW-3 for taking juice. Accordingly, she
gave the same to her. Thereafter, the deceased-child went to the mill and
asked the appellant whether the grains were grinded. At that time, she was
taken to the back side of the mill by the appellant. Since, the deceased-
child did not return, PW-3 having waited for some time went home. It is
the further case of the prosecution that the appellant took the deceased-
child to the backyard which was seen by an employee (PW-12) of the mill.
The appellant permitted PW-12 to go for lunch and PW-12 left for lunch.
Then, the accused committed rape on the deceased-child and due to
neurogenic shock she died. Since, the deceased-child did not come back, PW-
3 informed her father (PW-1). Thereafter, PW-1, PW-3 and others searched
for the deceased-child. At about 10.00 pm, PW-6, the owner of the textile
shop situated just opposite to the mill of the appellant and the night
watchman (PW-7) posted for security in that area found the appellant
opening the mill unusually at that time. On being questioned, the appellant
said that since the next day is Ramzan, he opened the mill for doing work.
At about 10.15 pm, PW-8, whose house is situated exactly behind the mill
came to attend the call of nature and at that time, he heard a noise coming
from the well side and he found the accused there and he questioned the
appellant as to what he was doing during night hours. Then, the accused
told that since the next day was Ramzan, he was throwing the garbage into
the well. The dead body of the deceased-child was found by PW-4 inside the
well and having seen the same, PWs 1 to 3 were informed. PW-1, the father
of the deceased-child went over to the respondent-police station, where
PW-20, the Sub-Inspector of Police was on duty. He gave the complaint
(marked as Ex.-P1) to PW-20, the aforesaid Sub-Inspector on the basis of
which, a case came to be registered as FIR No. 146/2005 under Section 174
Cr.P.C. Ex.-P23 (the FIR) was dispatched to the court. The dead body was
taken out from the well. The place of occurrence and the dead body were
photographed by PW-9 and marked as M.O.1 (series). Thereafter, the dead
body was sent to the Government Hospital, Rameswaram. The Inspector of
Police, Rameswaram (PW-22) on receipt of the copy of the FIR, proceeded to
the Government Hospital, Rameswaram and conducted inquest on the dead body
of the deceased in the presence of the witnesses and panchayatdars. He
prepared the inquest report marked as Ex.-P24. Then, he gave a requisition
to the doctor for conducting post-mortem on the dead body of the deceased-
child. The Doctor (PW-15) of the Government Hospital, Rameswaram, on
receipt of the requisition, conducted post-mortem on the dead body of the
deceased-child and issued post-mortem report(Ex.-P8) wherein he stated that
the decease-child would appear to have died within 24 to 48 hours prior to
the post-mortem and the death was due to neuorogenic shock. It was further
the case of the prosecution that PW-21 took up the investigation and
recorded the statement of the witnesses. He went to the scene of occurrence
and made an inspection in the presence of the witnesses and prepared the
observation mahazar (Ex.-P2) and the rough sketch (Ex.-P25). After getting
the medical opinion, the charges were altered to Sections 376 and 302 IPC.
Ex.-P26, the amended FIR was dispatched to the court. On 9.11.2005, the
appellant was arrested by the investigation officer in the presence of the
witnesses. The appellant made confessional statement voluntarily, which was
recorded in the presence of the witnesses, the admissible part of which was
marked as Ex.-P3. Following the same, the accused took the investigation
officer to the Mill and produced the M.O.2 (Shawl) which was worn by the
deceased-child at the time of the occurrence and the same was recovered
under a cover of mahazar.
4. The appellant identified the place where he had committed the
offence. Then, the Investigation Officer made an inspection and prepared
Ex.-P5, the observation mahazar and Ex.-P27, the rough sketch. Following
the same, the appellant was sent for medical examination. PW-14, the doctor
attached to the Government Hospital, Ramanathapuram, medically examined him
and issued Ex.-P7, the age certificate. Then, the appellant was medically
examined by PW-13, the doctor attached to Ramanathapuram, Government
Hospital and he issued Ex.-P6, the certificate stating that the appellant
is found to be potent. All the material objects recovered from the place of
occurrence and from the dead body of the deceased-child as also the
material objects recovered from the appellant were sent for chemical
analysis by the Forensic Science Department. Ex.-P9, the Chemical Analyst’s
report and Ex.-P22, the Hyoid Bone report were received. The Inspector of
Police (PW-22) recorded the statement of the witnesses. On completion of
the investigation, the Investigation Officer filed the final report before
the learned Magistrate Court. The case was committed to the Court of
Sessions for trial and necessary charges were framed. The prosecution
examined 22 witnesses and relied on 27 exhibits and 4 material objects on
completion of the evidence on the side of the prosecution. The appellant
was examined under Section 313 Cr.PC regarding the incriminating
circumstances found in the evidence of prosecution witnesses which was
denied by him. The trial court on appreciation of evidence on record found
that the appellant is guilty of the charges levelled against him and he was
convicted and sentenced for the offences as stated above.
5. Aggrieved by the said order of the learned trial judge, an appeal was
filed by the appellant before the Division Bench of Madurai Bench of the
Madras High Court urging various legal contentions and questioning the
correctness of the findings recorded by the trial court against the
appellant and holding that he was guilty of the same. The High Court on re-
appreciation of the evidence on record did not find any infirmity in either
factual or legal aspect in the judgment of the trial court and sustained
the same by passing the impugned judgment. The correctness of the same is
challenged in this appeal framing certain substantial questions of law
urging the following grounds.
6. It is contended on behalf of the appellant that the prosecution has
failed to comply with mandatory procedures as required under Section 174(1)
and (2) of Cr.PC i.e. non sending of the intimation recorded under Section
174(1) and the report under Section 174 (2) of Cr.PC (reasonable suspicion
on death) to the nearest Executive Magistrate or Sub-Divisional Magistrate
who is empowered to hold preliminary inquest enquiry and such
irregularities on the part of the investigating agency vitiates the
entire proceedings under Section 461 of Cr.PC. Mr. S. Mahendran, learned
counsel for the appellant placed reliance upon the judgment of this Court
in Raj Kumar Singh v. State of Rajasthan[1] regarding not naming the
accused in the FIR is fatal to the prosecution case. It is further
contended that this case is based on the circumstantial evidence on which
the trial court as well as the first appellate court while considering the
said evidence on record have relied upon and convicted and sentenced the
appellant for offences charged against him. Therefore, the benefit of doubt
is available to the accused which should have been adopted and the courts
below should have passed the order of acquittal. In support of the
aforesaid submission, he has placed reliance upon judgment of this Court in
the case of Baldev Singh v. State of Haryana[2] and further contended that
first charge of rape on the appellant is not proved, automatically the
second charge of murder under Section 302 IPC does not survive for
consideration. This aspect of the matter has not been considered properly
by the courts below. Therefore, the impugned judgment is liable to be set
aside and further strong reliance was placed on the judgment in Raghunath
v. State of Haryana and Anr.[3] in support of the contention that medical
evidence does not support the prosecution case and hence, the benefit of
reasonable doubt shall go in favour of the appellant. In support of this
submission he also placed reliance upon the judgment of this Court in
Devinder Singh & Ors. v. State of Himachal Pradesh[4]. And another legal
ground urged on behalf of the appellant is that the criminal court
recognizes and accepts the inadmissible evidence, therefore, the finding
recorded holding both charges proved against him is erroneous in law for
want of accepting the inadmissible evidence. Therefore, the said finding is
liable to be set aside. Further reliance was placed on the evidence of the
doctor (PW-15) who has stated that no external injuries were found on the
deceased-child. Therefore, the question of death due to neurogenic shock is
wholly untenable as the same is not supported by the doctor’s evidence.
7. It is further contended that the alleged recovery of the dead body of
the deceased-child from the well was required to be corroborated with
medical evidence. The same has not been proved by the prosecution and
further the courts below have mis-directed themselves with regard to the
investigation made by PW-21 and the circumstances placed on record on the
basis of evidence of PWs.-1, 2, 3, 5, 8 and 12 are nothing but improved
versions. Therefore, the courts below should not have placed reliance on
such evidence to convict and sentence the appellant on the basis of said
evidence which is not legally justified.
8. It is the case of the prosecution that the courts below failed to
consider the vital evidence of the doctor (PW-15). During the examination-
in-chief, the doctor clearly stated that there is no symptom on the body
which indicated drowning in water and the symptom found on the body could
be that of wrinkling of skin and becoming pale etc. that is why he has not
mentioned this fact in his certificate. On the suggestion made to him
regarding non mentioning of rigor mortis found on the body, the same was
denied by him. Though, he answered that he has not mentioned the same, in
the post mortem report but he conceded to the approximate time of death on
the basis of rigor mortis found in the body and also admitted that he has
not mentioned the external injuries found on the body as to whether they
were ante or post mortem in nature. He also suggested that normally in the
first coitus abrasions, contusions are possible on the vaginal part but in
this case they are all absent. Further, the courts below ignored the
evidence namely the Police inquest requisition to the doctor for conducting
post-mortem on the deceased-child. Even on the police requisition, it was
not mentioned that it is the case of rape and murder. According to the
prosecution, the dead body found in the well, only legs were visible inside
the well, if that is so, there should have been definite injury on the
skull and other limbs but they are all absent in the case in hand as could
be seen from the post-mortem report which creates doubt on the alleged
recovery of dead body from the well.
9. Further, the courts below have failed to consider the evidence of
investigation officer. PW-21, who is the I.O. in this case has brought
several divergent facts among the prosecution witnesses which are believed
by the courts below without proper analysis of the said evidence for
convicting the appellant. According to the investigation officer, he
arrested the appellant on 9.11.2005 at Akkalmadam Bus stop which is
contradictory with the evidence of PW-12, co-labour in the mill, who had
stated that he and the appellant were in police custody from 4.11.2005
onwards. Later, he was treated as prosecution witness. Therefore, the
alleged arrest of the appellant as stated by IO in his evidence is not
correct and further at the instance of the appellant, the material object
(shawl) alleged to have worn by the deceased was recovered. However, this
fact and identity has not been elicited from any of the witnesses in their
examination in chief. He said that he examined the Sub-Inspector who
registered an FIR only on 9.11.2005 i.e. after five days of the incident.
It is further stated by him that he saw the body firstly at Government
Hospital mortuary. However, he admitted that if the body is brought to the
hospital directly, the particulars were recorded in an accident register
and immediate intimation would be given to police station. In the case in
hand no such formalities have been complied with by the hospital authority.
When PW-21 was questioned with regard to mentioning on Column No. 25 in
Ex.-P-21, he admitted that “while going for having juice, somebody cornered
the girl and molested her inside the house”. But, in the post-mortem
requisition, he did not ask to conduct examination as to whether any rape
has been committed on her. At the same time, he is not in a position to
explain as to how he has mentioned these particulars in the inquest
proceedings. He further admitted that Nazirdeen (PW-8), had alleged to
have heard noise from the well and seen the appellant going on back side of
the mill at 10.30 pm. The concerned house is a single room house and he has
not mentioned either in his observation mahazar or in the rough sketch that
“the house consists of any backyard entry, bathroom and latrine”. He
further admitted that he has not mentioned that there is any backyard entry
in the Kathanjenna’s house (who is alleged to have seen the body inside the
well). He had also further admitted that he has not prepared any
observation mahazar or rough sketch about the inside of the mill. Though he
examined the adjacent shop owners but those shops have not been shown in
his observation mahazar. It is further stated by him that during the course
of enquiry, PW-1 has not stated that he did not receive any information
from his mother in law. He further admitted that PW-3 has not stated
anything about the appellant who collected things for grinding and returned
the same.
10. Further, the courts below have not considered the evidence of PW-3
who has stated in her second enquiry that her granddaughter’s slippers were
found in front of Kathun’s house. Kathun Jenna has not stated in any
enquiry that she went to close the well with lid where she had seen two
legs inside the well. It is further contended that the trial court on wrong
appreciation of evidence came to the erroneous conclusion on the charges to
record its finding against the appellant on the basis of incredible and
inconsistent circumstantial evidence. The conviction recorded by the trial
court for the simple reason that the appellant has confessed that after he
ravished the deceased, he threw the body inside the well and to corroborate
the same the investigation officer has recovered a shawl at the instance of
the appellant which is not admissible unless the recovery of shawl is
proved from the other cogent evidence. It is contended by the learned
counsel that the conviction of the appellant is based on the basis of
surmises and conjectures, therefore, he has prayed for setting aside the
conviction and sentence awarded against him.
11. On the other hand, Mr. M.Yogesh Kanna, the learned counsel for the
respondent-prosecution sought to justify the concurrent findings and
reasons recorded on the charges after proper analysis and re-appreciation
of evidence on record by both the trial court and the High Court after
careful examination of the evidence on record having regard to the charges
levelled against the appellant. He has placed reliance upon the judgment in
Raj Kumar Singh (supra) wherein it is stated that not naming the accused in
the FIR does not vitiate the prosecution case and he further placed
reliance upon the confessional statement of the appellant under Section 27
of the Evidence Act regarding recovery of the shawl which fact is spoken to
by PW-1 and he placed reliance upon the judgment in Mritunjoy Biswas v.
Pranab Alias Kuti Biswas and Anr.[5] and Ramnaresh & Ors. v. State of
Chhattisgarh[6] regarding non mentioning of the appellant in the FIR does
not vitiate the prosecution case. The last seen theory of the deceased with
the appellant support the finding and reasons recorded by the courts below
in framing charges against the appellant by placing reliance upon the
judgment in Budhuram v. State of Chhattisgarh[7].
12. The learned counsel on behalf of the prosecution invited our
attention to the evidence of the prosecution which is based on recording
the evidence of PW-12 and medical evidence of PW-15 with regard to
the age of the appellant, his potency for intercourse which is established
and further the oral evidence supported by the medical evidence,
particularly, PW-13 and PW-15 justify the conviction and sentence awarded
against the appellant on the charges levelled against the appellant.
Therefore, it is urged that the legal submissions urged on behalf of the
appellant by placing reliance upon the judgments of this Court which are
referred to above do not support the case of the appellant. Therefore, the
learned counsel of the prosecution urged not to interfere with the
concurrent finding of fact which is based on proper re-valuation of legal
evidence on record. The same is supported by medical evidence. Though some
evidence is circumstantial evidence, the findings of the courts below are
supported by cogent evidence on record. Hence, the learned counsel
requested for dismissal of the appeal by affirming the conviction and
sentence awarded against the appellant.
13. With reference to the above rival contentions urged on behalf of the
parties, we have examined very carefully the entire evidence on record with
a view to find out the correctness of the findings recorded on the charges
levelled against the appellant.
14. Three main points come up for the consideration in the present case:
Whether the absence of name of the accused in the FIR points towards the
innocence of the accused and entitles him for acquittal?
Whether the present case is a fit case to apply the last seen theory to
establish the guilt of the accused?
Whether the circumstantial evidence in the present case indicate towards
the guilt of the accused and whether these evidences are sufficient to
establish the guilt of the accused?
Answer to point no. 1
15. We intend to address each contention separately and begin with the
first contention of the appellant/ accused that his name did not appear for
the first time in the FIR and mention of his name was only an improvement
of the first version. It has been mentioned by the High Court in the
impugned judgment that the FIR- Ex. P1 initially did not mention the name
of the accused and on the other hand, PW-1, father of the deceased child
had suspected one of his relatives for the offence. It was however,
revealed after investigation that it was the accused who committed the act
and the police in fact was proceeding in the right path. The involvement of
the accused has been further corroborated by the recovery of the shawl of
the deceased on the basis of the confession of the accused which was made
in the presence of witnesses. We intend to concur with the decision of the
High Court that non mentioning of the name in the initial FIR is not fatal
to the case of the prosecution. It has been held by this Court in the case
of Jitender Kumar v. State of Haryana[8]:-
“16. As already noticed, the FIR (Ext. P-2) had been registered by ASI Hans
Raj, PW 13 on the statement of Ishwar Singh, PW 11. It is correct that the
name of accused Jitender, son of Sajjan Singh, was not mentioned by PW 11
in the FIR. However, the law is well settled that merely because an accused
has not been named in the FIR would not necessarily result in his
acquittal. An accused who has not been named in the FIR, but to whom a
[pic]definite role has been attributed in the commission of the crime and
when such role is established by cogent and reliable evidence and the
prosecution is also able to prove its case beyond reasonable doubt, such an
accused can be punished in accordance with law, if found guilty. Every
omission in the FIR may not be so material so as to unexceptionally be
fatal to the case of the prosecution. Various factors are required to be
examined by the court, including the physical and mental condition of the
informant, the normal behaviour of a man of reasonable prudence and
possibility of an attempt on the part of the informant to falsely implicate
an accused. The court has to examine these aspects with caution. Further,
the court is required to examine such challenges in the light of the
settled principles while keeping in mind as to whether the name of the
accused was brought to light as an afterthought or on the very first
possible opportunity.
17. The court shall also examine the role that has been attributed to an
accused by the prosecution. The informant might not have named a particular
accused in the FIR, but such name might have been revealed at the earliest
opportunity by some other witnesses and if the role of such an accused is
established, then the balance may not tilt in favour of the accused owing
to such omission in the FIR.
18. The court has also to consider the fact that the main purpose of the
FIR is to satisfy the police officer as to the commission of a cognizable
offence for him to conduct further investigation in accordance with law.
The primary object is to set the criminal law into motion and it may not be
possible to give every minute detail with unmistakable precision in the
FIR. The FIR itself is not the proof of a case, but is a piece of evidence
which could be used for corroborating the case of the prosecution. The FIR
need not be an encyclopaedia of all the facts and circumstances on which
the prosecution relies. It only has to state the basic case. The attending
circumstances of each case would further have considerable bearing on
application of such principles to a given situation. Reference in this
regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v.
State of M.P.”
Therefore, the contention of the appellant that since his name did not
appear in the FIR, he is entitled to acquittal, is not maintainable. We
accordingly, answer this point in favour of the respondent.
Answer to point no. 2
16. It is the case of the prosecution that P.W. 3, the grandmother of the
accused had sent the child to see whether the floor was grinded. However,
when the child did not return for some time, P.W. 3 went home. At this
juncture, there is evidence through PW 5 and PW 12 who were employees under
the accused that the accused took the child to the backyard while he
unusually permitted PW 12 to go for lunch. Further, the accused could not
explain the need of taking an 8 year old child to the backyard. In this
aspect of the last seen theory, it has been held by this Court in the case
of Kusuma Ankama Rao v. State of Andhra Pradesh[9] as under:
“10. So far as the last-seen aspect is concerned it is necessary to take
note of two decisions of this Court. In State of U.P. v. Satish it was
noted as follows: (SCC p. 123, para 22)
“22. The last-seen theory comes into play where the time gap between the
point of time when the accused and the deceased were seen last alive and
when the deceased is found dead is so small that possibility of any person
other than the accused being the author of the crime becomes impossible. It
would be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the deceased were last
seen together, it would be hazardous to come to a conclusion of guilt in
those cases. In this case there is positive evidence that the deceased and
the accused were seen together by witnesses PWs 3 and 5, in addition to the
evidence of PW 2.”
(emphasis laid by this Court)
In Ramreddy Rajesh Khanna Reddy v. State of A.P. it was noted as follows:
(SCC p. 181, para 27)
“27. The last-seen theory, furthermore, comes into play where the time gap
between the point of time when the accused and the deceased were last seen
alive and the deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime becomes
impossible. Even in such a case the courts should look for some
corroboration.”
In the case in hand, the deceased child was taken to the backyard of the
mill by the accused and the same was seen by PW 5 and PW 12. The deceased
child went missing since then and was found dead the next morning. The
accused did not explain why did he take the child to the backyard. On the
other hand, he confessed to his crime which was corroborated by the
recovery of a shawl at the instance of the accused himself in the presence
of witnesses. Therefore, in the light of the principle laid down by this
Court, we are of the opinion that the High Court was justified in holding
the accused guilty of rape and murder of the deceased child. We accordingly
answer this point in favour of the respondent.
Answer to point no. 3
17. On the date of occurrence, at about 10:00 pm, the accused opened the
mill unusually at odd hours. The same was witnessed by PW 6, the textile
shop owner whose shop was situated opposite the mill and also PW 7, who was
the night watchman. Both had questioned the accused regarding this odd
behaviour to which he answered that since the next day is Ramzan, he came
for grinding the flour. Another strong circumstance was the evidence of PW
8 whose house is situated exactly behind the mill. When PW 8 came out for
attending the call of nature at 10:15 pm, he heard a noise from the well
which is situated behind the mill and on seeing the accused proceeding
towards the mill, he stopped the accused and asked as to what he was doing.
To this, the accused answered that the accused was throwing garbage in the
well since the next day is Ramzan. Since the dead body was found next day
from the well, circumstantial evidence points the involvement of the
accused in throwing the dead body of the child in the well the previous
night. The High Court therefore, is justified in construing that the
appellant/accused had kept the dead body in the mill and threw the dead
body in the well at about 10:15 pm.
18. It is true that in the present case, there is no direct evidence
which prove that the rape and murder of the deceased child was committed by
the appellant. There are no witnesses available on record who have
testified having witnessed the appellant committing the crime. However, all
the circumstances point towards the appellant as being the author of the
crime in the present case. It has been held by five judge bench of this
Court in the case of Govinda Reddy & Anr. v. State of Mysore[10] as under:
“5. The mode of evaluating circumstantial evidence has been stated by this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is
as follows:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should, in the first instance, be fully established, and all
the facts so established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must
be such as to show that within all human probability the act must have been
done by the accused.”
19. Again, in the present case, the recovery of the body of the deceased
child from the same well where PW-8 had seen the accused appellant the
previous night throwing something in the well provides for a strong
circumstantial evidence. The unusual behaviour of the accused in taking the
deceased child to the backyard of the mill, sending of his employee for
lunch at the same time and also the opening the mill in the odd hours of
the night the very same evening points towards the guilt of the accused. We
answer this point in favour of the respondent.
20. Since, all the points are answered in favour of the respondent, we
hold that the High Court was correct in upholding the decision of the
Sessions Judge in convicting the accused of rape and murder of the deceased
child. We therefore, sustain the decision of the High Court and hold that
the charges under Sections 376, 302 and 201 of IPC are proved against the
appellant. His sentence of life imprisonment and fine of Rs.5000/- and in
default one year rigorous imprisonment under Section 376, life imprisonment
and fine of Rs.5000/- and on default, one year rigorous imprisonment under
Section 302 and also 3 years rigorous imprisonment and fine of Rs.1000/-
and on default, rigorous imprisonment of six months under section 201 of
IPC is confirmed. All sentences are to run concurrently. Accordingly, the
appeal is dismissed as the same is devoid of merit.
……………………………………………………J. [DIPAK MISRA]
……………………………………………………J. [V. GOPALA GOWDA]
New Delhi, August 1, 2014
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[1]
(2013) 5 SCC 722
[2] (2008) 14 SCC 768
[3] (2003) 1 SCC 398
[4] (2003) 11 SCC 488
[5] (2013) 12 SCC 796
[6] (2012) 4 SCC 257
[7] (2012) 11 SCC 588
[8] (2012) 6 SCC 204
[9] (2008) 13 SCC 257
[10] AIR 1960 SC 29
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