REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1793-1794 OF 2011
RAM SUNDER SEN APPELLANT
VERSUS
NARENDER @ BODE SINGH PATEL RESPONDENT
WITH
CRIMINAL APPEAL NOS. 1795-1796 OF 2011
STATE OF MADHYA PRADESH APPELLANT
VERSUS
NARENDER @ BODE SINGH PATEL RESPONDENT
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These appeals, by special leave, are directed against the judgment and
order dated 23.07.2008, passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.11 of 2008 along with Criminal
Reference No.4 of 2007, whereby the High Court allowed the criminal
appeal filed by the respondent herein and acquitted him and disposed
of the Criminal Reference No.4 of 2007 filed by the State of Madhya
Pradesh.
2. The case of the prosecution, stated briefly, is that on 19.05.2004 at
8.30 A.M., the complainant Ram Sunder Sen lodged a report at Police
Chowki Kotar stating that there was a function in his house on
18.05.2004 in which his relatives and family members had gathered. His
daughter Anita, aged about 12 years, after eating meal, had gone to
sleep at 7.00 P.M. in front of the main gate of his house as there was
no electricity in the house then. After the function was over, at
about 11.00 P.M., he and his family members also slept there. Next
morning i.e. on 19.05.2004 at 6.00 A.M., the wife of Sarpanch
Vansbahadur informed that the dead body of Anita was lying in Bari
near the house of the Sarpanch. She was not wearing underwear and
skirt. There were abrasions on her forehead, nose and face. Abrasions
were also found on the neck as well as nearby navel region. Blood was
oozing out of private part, cut on the face and ankles of both the
legs. FIR against an unknown person was lodged, the dead body was sent
for post-mortem and investigation was thrown open. The Investigating
Officer recorded the statements of the witnesses. On the basis of the
statement of the witnesses, accused Narendra @ Bode Singh Patel was
arrested who admitted his guilt and at his instance, blood-stained
underwears of the deceased as also the accused were recovered from a
pitcher kept behind his house.
3. After investigation was complete, Police filed challan before the
Court against accused Narendra and the case was committed to the
Sessions Court for trial. After considering the material on record and
hearing the counsel for the accused, charges were framed against
accused Narendra for offence punishable under Sections 302, 376(2)(f)
and 201 of the Indian Penal Code, 1873 (“IPC” for short). The charges
were read over and explained to the accused to which he pleaded not
guilty and claimed for trial.
4. The Trial Court by its judgment and order dated 18.12.2007, convicted
the respondent accused and awarded capital punishment to him for
offence punishable under Section 302 IPC. The Trial Court further
sentenced him to rigorous imprisonment for life for offence punishable
under Section 376(2)(f), and rigorous imprisonment for seven years and
a fine of Rs100, with default clause, for the offence punishable under
Section 201 IPC. Thereafter, the matter was referred to the High Court
of Madhya Pradesh for confirmation of death sentence vide Criminal
Reference No.4 of 2007. The accused also filed an appeal before the
High Court, being Criminal Appeal No.11 of 2008. The High Court by the
impugned judgment allowed the appeal filed by the accused on the
ground that the prosecution failed to prove the chain of circumstances
sufficient enough to connect the accused with the alleged offence and,
consequently, the respondent accused was set at liberty.
5. Aggrieved by the judgment of acquittal passed by the High Court of
Madhya Pradesh, the complainant, who is the father of the deceased,
has approached this Court by filing Criminal Appeal Nos.1793-1794 of
2011. The State of Madhya Pradesh has also challenged before us the
judgment of acquittal passed by the High Court vide Criminal Appeal
Nos.1795-1796 of 2011. Learned counsel for the complainant-appellant
has inter alia submitted that the judgment of the Trial Court is well
reasoned and well considered. Both the counsel for the complainant-
appellant and counsel for the State have assailed the reasoning given
by the High Court in arriving at a wrong conclusion i.e. the innocence
of the accused.
6. The Trial Court convicted the accused respondent on the basis of the
prosecution story relying upon the circumstantial evidence. The law is
well settled in deciding a case based upon circumstantial evidences.
The prosecution tried to establish the following facts before the
Trial Court :
(i) Motive : in order to satisfy the lust,
(ii) The recovery of underwear of the deceased as also the
underwear of the accused was made at the instance of the accused
in his own house,
(iii) Human blood was found on the underwear of the accused,
(iv) The accused came to the house of the deceased at 11.00pm on
18.05.2004 under the pretext of a Bidi but was turned back by
the mother of the deceased.
(v) Previous acts of the accused to make the deceased sit in
his lap and to kiss her for which he was rebuked by the
deceased's father reveals his ill-intentions.
(vi) Accused made an attempt to rape the daughter of one Kallu
Prajapati of Village Golhata prior to the incident,
(vii) In the morning of 19.05.2004 the accused was not found in
the village,
(viii) Accused was seen around the place of incident at night
within close proximate time when the incident occurred,
(ix) Accused failed to give reasonable explanation about the
injuries suffered by him.
The Trial Court held that the above facts proved the prosecution case
beyond reasonable doubt and hence the accused was convicted for the
offence charged. However, the High Court pointed out serious lacunae
in the above-mentioned evidences and hence the conviction order was
set aside by the High Court giving benefit of doubt to the accused.
7. We shall now examine each and every contention in light of the
arguments advanced before us. It is settled law that motive is not a
necessary element in deciding culpability but it is equally an
important missing link which can be used to corroborate the evidence
where conviction is based on circumstantial evidence. In the present
case, the motive of the accused was stated to be 'to satisfy his
lust'. For this purpose the prosecution argued that although the
accused was married and had children, but his wife was living at her
parent's house. The same fact was deposed by Lalli Bai, mother of the
prosecutrix (PW4). The Trial Court accepted the said argument.
However, the High Court rightly refused to rely only on the statement
of PW4 to establish the said fact. Further, it is not adequately
established as to for how long the wife of the accused was not living
with him. The burden to prove this fact is on the prosecution and not
on the accused. The prosecution also tried to impute bad character
upon the accused. The High Court rightly held that such evidences are
not relevant. Sections 53 and 54 of the Indian Evidence Act, 1972 were
discussed at length by the High Court and it was held that the accused
neither tried to prove his previous good character, nor the said fact
was in question. An earlier instance of attempt to rape by the
accused, as deposed by the mother of the prosecutrix (PW4), Savitri,
aunt of the deceased (PW5) and Rajendra Kumar Sen, brother of the
deceased (PW6), is not established at any stage of the trial. These
witnesses are not only interested witnesses but they themselves stated
that their evidence is hearsay. The prosecution neither produced any
complaint/FIR nor any record was shown that any such incident
occurred. Thus, the prosecution squarely failed to impute bad
character upon the accused. Further, the motive is also not firmly
established against the accused.
8. The next aspect for consideration before us is the non-explanation by
the accused of the injuries sustained by him. As per the medical
examination, the accused had certain abrasions on his wrists and
ankles and also some injuries on private part. PW24 - the doctor who
examined the accused, deposed that he examined one Narendra S/o Ram
Babu. But this doctor failed to identify the accused before the Court.
The prosecution also failed to produce any evidence in order to prove
that the name of the father of the accused is Ram Babu. The name of
accused's father is Ram Bahore and it is nowhere shown that Ram Bahore
is alias of Ram Babu. With these discrepancies, the High Court refused
to accept that the accused was the same person who was examined by the
doctor PW24. However, even if it is presumed that there could have
been error in writing down the name of the father of the accused and
due to long time, the doctor failed to identify the accused, yet the
medical evidences are not clinching enough. The accused is a young
man, certain abrasions can be regularly sustained during the day while
working in and around. Moreover, the accused having worked in his
cousin's wedding might have received the abrasions. Medical opinion
for explanation to such abrasion is that such abrasion can occur due
to itching also. The other injuries on private part, in medical
opinion, could be a result of sexual intercourse with his wife. The
accused is a married man having children and it is not established
that his wife was living away from him. Hence, non-explanation of the
above said injuries is not an incriminating circumstance so as to
attribute any criminality upon the accused.
9. The next incriminating fact is the recovery of the blood-stained
underwear of the deceased made at the instance of the accused, from
the house of the accused. However, upon careful examination, serious
doubts are cast upon the incident of recovery. The witnesses to this
seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per the
deposition of PW9, many doubts are created. He deposed that red colour
underwear as well as an underwear of accused were seized. However, he
did not state as to whom did the red colour underwear belong. He also
did not mention the place from where it was recovered nor did he
mention the manner in which the articles were seized. PW22 further
made certain doubtful revelations stating that at the time of
recovery, only he, accused and the police were present. However, he
only confirms the recovery of a red colour underwear, but the place
and surrounding of the place of recovery were not deposed by PW22. The
deposition of the above two witnesses raises various doubts about
recovery of material facts. Therefore, the High Court correctly raised
doubt that it is highly unnatural that the accused will keep the
underwear in a pitcher in his own house.
10. The prosecution failed to prove its case on one more aspect. Upon
recovery of the underwear of the accused and the deceased, although
the same were sent for Serological examination and it was proved that
blood was found on the underwear of the accused, but no blood was
found on the undergarments of the deceased. During investigation, the
blood sample and soil samples were collected from the place of
incident. However, it is shocking to note that none of these samples
were sent for FSL examination. The said examination could have been
very useful to establish the identity of the accused. There is thus a
serious lacunae in the investigating procedure that a necessary test
was not conducted.
11. The underwear of deceased vide identification memo Ex.P/14 was put for
test identification. PW4 deposed that she identified the underwear as
the same was torn from the bottom. However, when this witness was put
to cross-examination, she deposed that none of the underwears which
were put for identification, was torn from the bottom. PW4 also stated
that the underwear was blood-stained. However, it is proved by
serological report that no blood was found on the underwear of the
deceased. Upon perusal, numerous contradictions appear from the
statements made by PW4, and serious doubt is raised not only on
recovery of the undergarments, but also upon the identification test.
12. The next evidence is the presence of the accused in the village at and
around the time of the incident against which the accused has pleaded
alibi. The prosecution placed on record the testaments of Ram Sunder
Sen, father of the deceased (PW3), stating that the accused came to
his house 3-4 times during the night of 18.05.2004. He also deposed
that on 18.05.2004 at 11.00 P.M. the accused came to his house and
asked for bidi, but he was turned back by his wife PW4. PW4 also made
deposition to this effect. However, upon cross-examination both these
witnesses stated that this fact was told to the police officer upon
examination. But no such fact is present in their statements made to
the police during investigation. The High Court disbelieved the said
fact as there was a deviation from the earlier statement. Further, the
High Court examined the statements of the defence witnesses, who
deposed that on the date of incident, the accused was present in
another village to attend the marriage function of his cousin. The
defence witnesses specifically deposed that the accused was present
during and after the function on 18.05.2004 and the accused stayed
there at night. It was further deposed that the accused left for his
home only after breakfast. This also explains the absence of the
accused in his village in the morning of the incident. The High Court
rightly relied upon the statement of an independent witness, namely,
Kalawati (PW1) who deposed that the accused was not in the village on
the fateful night as he had gone to the marriage ceremony in other
village. The said factum of marriage ceremony and function in other
village has been admitted even by the family members of the deceased.
13. The prosecution also placed on record an incident alleged to have
occurred a few days prior to the fateful day, when the accused made
the deceased sit on his lap and kissed her, for which the accused was
rebuked and beaten by the father of the deceased. However, in their
statement to the police, no such fact was deposed by PW3 or PW4 and it
was only before the Court that the above witnesses stated this fact.
Even if the said fact is presumed to be true, we concur with the
reasoning of the High Court that mere snugging the deceased once, in
itself, is no ground to connect the accused with the alleged incident.
14. The prosecution also adduced the testimony of Sanjeev Kumar Sen
(PW28), cousin of the deceased, who alleged that in the night
intervening between 18th and 19th May, 2004 at about 4:30 A.M., he
woke up to attend the call of nature when he saw the accused coming
towards his house from the Badi of the house of Vanshgopal Sarpanch.
Very close to that place, the deceased was found dead in the morning.
However, upon careful examination, it can be gathered that this
witness did not state such an important fact to the police officer.
Although he alleged that the said fact was known to him yet the report
was lodged against an unknown person. Further, if the veracity of this
statement is tested, it fails to adduce confidence. PW28 himself
stated that he saw the accused at 4:30 A.M., however, none of the
details as to the distance, surrounding, etc. were given. The source
of light in which the witness saw the accused is also not stated.
Therefore, the High Court correctly rejected the testimony of PW28.
15. The present case is, thus, based purely on circumstantial evidence. It
is a settled law that when prosecution relies on circumstantial
evidence, the following tests to be clearly established:
(i) The circumstances from which an inference of guilt is
sought to be drawn, must be cogent and firm;
(ii) Those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(iii) The circumstances taken cumulatively should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
The prosecution, however, in the present case, has failed at the
foremost to link the accused with the incident. The prosecution has
the responsibility to present a chain of events. The accused's
culpability could have been established if the blood samples were
tested and matched, the recovery of underwear is not proven to be that
of the deceased. Otherwise, the recovery was unnatural and did not
adduce confidence. One prosecution witness who is an independent
witness has stated that the accused had gone to another village on the
date of incident. There were material discrepancies in the statements
of the prosecution witnesses. The testimonies of the interested
witnesses, namely, PW3, PW4, PW5 and PW28 clearly show that they
materially improvised from their earlier depositions. The accused also
examined two defence witnesses who stated that the accused was
attending function in some other village on the fateful night. The
High Court went into each and every material aspect of the case,
examined at length the deposition of the witnesses and rightly held
that the links which are collected by the prosecution have not at all
been proved by any cogent evidence and, therefore, it is difficult to
hold that it was the accused who committed rape upon the deceased and
thereafter killed her.
16. Thus, in the light of the above discussion, we do not find any ground
to interfere with the judgment passed by the High Court. The appeals
are, accordingly, dismissed.
…....................................J
(Pinaki
Chandra Ghose)
…...................................J
(R.K. Agrawal)
New Delhi;
October 15, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1793-1794 OF 2011
RAM SUNDER SEN APPELLANT
VERSUS
NARENDER @ BODE SINGH PATEL RESPONDENT
WITH
CRIMINAL APPEAL NOS. 1795-1796 OF 2011
STATE OF MADHYA PRADESH APPELLANT
VERSUS
NARENDER @ BODE SINGH PATEL RESPONDENT
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These appeals, by special leave, are directed against the judgment and
order dated 23.07.2008, passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No.11 of 2008 along with Criminal
Reference No.4 of 2007, whereby the High Court allowed the criminal
appeal filed by the respondent herein and acquitted him and disposed
of the Criminal Reference No.4 of 2007 filed by the State of Madhya
Pradesh.
2. The case of the prosecution, stated briefly, is that on 19.05.2004 at
8.30 A.M., the complainant Ram Sunder Sen lodged a report at Police
Chowki Kotar stating that there was a function in his house on
18.05.2004 in which his relatives and family members had gathered. His
daughter Anita, aged about 12 years, after eating meal, had gone to
sleep at 7.00 P.M. in front of the main gate of his house as there was
no electricity in the house then. After the function was over, at
about 11.00 P.M., he and his family members also slept there. Next
morning i.e. on 19.05.2004 at 6.00 A.M., the wife of Sarpanch
Vansbahadur informed that the dead body of Anita was lying in Bari
near the house of the Sarpanch. She was not wearing underwear and
skirt. There were abrasions on her forehead, nose and face. Abrasions
were also found on the neck as well as nearby navel region. Blood was
oozing out of private part, cut on the face and ankles of both the
legs. FIR against an unknown person was lodged, the dead body was sent
for post-mortem and investigation was thrown open. The Investigating
Officer recorded the statements of the witnesses. On the basis of the
statement of the witnesses, accused Narendra @ Bode Singh Patel was
arrested who admitted his guilt and at his instance, blood-stained
underwears of the deceased as also the accused were recovered from a
pitcher kept behind his house.
3. After investigation was complete, Police filed challan before the
Court against accused Narendra and the case was committed to the
Sessions Court for trial. After considering the material on record and
hearing the counsel for the accused, charges were framed against
accused Narendra for offence punishable under Sections 302, 376(2)(f)
and 201 of the Indian Penal Code, 1873 (“IPC” for short). The charges
were read over and explained to the accused to which he pleaded not
guilty and claimed for trial.
4. The Trial Court by its judgment and order dated 18.12.2007, convicted
the respondent accused and awarded capital punishment to him for
offence punishable under Section 302 IPC. The Trial Court further
sentenced him to rigorous imprisonment for life for offence punishable
under Section 376(2)(f), and rigorous imprisonment for seven years and
a fine of Rs100, with default clause, for the offence punishable under
Section 201 IPC. Thereafter, the matter was referred to the High Court
of Madhya Pradesh for confirmation of death sentence vide Criminal
Reference No.4 of 2007. The accused also filed an appeal before the
High Court, being Criminal Appeal No.11 of 2008. The High Court by the
impugned judgment allowed the appeal filed by the accused on the
ground that the prosecution failed to prove the chain of circumstances
sufficient enough to connect the accused with the alleged offence and,
consequently, the respondent accused was set at liberty.
5. Aggrieved by the judgment of acquittal passed by the High Court of
Madhya Pradesh, the complainant, who is the father of the deceased,
has approached this Court by filing Criminal Appeal Nos.1793-1794 of
2011. The State of Madhya Pradesh has also challenged before us the
judgment of acquittal passed by the High Court vide Criminal Appeal
Nos.1795-1796 of 2011. Learned counsel for the complainant-appellant
has inter alia submitted that the judgment of the Trial Court is well
reasoned and well considered. Both the counsel for the complainant-
appellant and counsel for the State have assailed the reasoning given
by the High Court in arriving at a wrong conclusion i.e. the innocence
of the accused.
6. The Trial Court convicted the accused respondent on the basis of the
prosecution story relying upon the circumstantial evidence. The law is
well settled in deciding a case based upon circumstantial evidences.
The prosecution tried to establish the following facts before the
Trial Court :
(i) Motive : in order to satisfy the lust,
(ii) The recovery of underwear of the deceased as also the
underwear of the accused was made at the instance of the accused
in his own house,
(iii) Human blood was found on the underwear of the accused,
(iv) The accused came to the house of the deceased at 11.00pm on
18.05.2004 under the pretext of a Bidi but was turned back by
the mother of the deceased.
(v) Previous acts of the accused to make the deceased sit in
his lap and to kiss her for which he was rebuked by the
deceased's father reveals his ill-intentions.
(vi) Accused made an attempt to rape the daughter of one Kallu
Prajapati of Village Golhata prior to the incident,
(vii) In the morning of 19.05.2004 the accused was not found in
the village,
(viii) Accused was seen around the place of incident at night
within close proximate time when the incident occurred,
(ix) Accused failed to give reasonable explanation about the
injuries suffered by him.
The Trial Court held that the above facts proved the prosecution case
beyond reasonable doubt and hence the accused was convicted for the
offence charged. However, the High Court pointed out serious lacunae
in the above-mentioned evidences and hence the conviction order was
set aside by the High Court giving benefit of doubt to the accused.
7. We shall now examine each and every contention in light of the
arguments advanced before us. It is settled law that motive is not a
necessary element in deciding culpability but it is equally an
important missing link which can be used to corroborate the evidence
where conviction is based on circumstantial evidence. In the present
case, the motive of the accused was stated to be 'to satisfy his
lust'. For this purpose the prosecution argued that although the
accused was married and had children, but his wife was living at her
parent's house. The same fact was deposed by Lalli Bai, mother of the
prosecutrix (PW4). The Trial Court accepted the said argument.
However, the High Court rightly refused to rely only on the statement
of PW4 to establish the said fact. Further, it is not adequately
established as to for how long the wife of the accused was not living
with him. The burden to prove this fact is on the prosecution and not
on the accused. The prosecution also tried to impute bad character
upon the accused. The High Court rightly held that such evidences are
not relevant. Sections 53 and 54 of the Indian Evidence Act, 1972 were
discussed at length by the High Court and it was held that the accused
neither tried to prove his previous good character, nor the said fact
was in question. An earlier instance of attempt to rape by the
accused, as deposed by the mother of the prosecutrix (PW4), Savitri,
aunt of the deceased (PW5) and Rajendra Kumar Sen, brother of the
deceased (PW6), is not established at any stage of the trial. These
witnesses are not only interested witnesses but they themselves stated
that their evidence is hearsay. The prosecution neither produced any
complaint/FIR nor any record was shown that any such incident
occurred. Thus, the prosecution squarely failed to impute bad
character upon the accused. Further, the motive is also not firmly
established against the accused.
8. The next aspect for consideration before us is the non-explanation by
the accused of the injuries sustained by him. As per the medical
examination, the accused had certain abrasions on his wrists and
ankles and also some injuries on private part. PW24 - the doctor who
examined the accused, deposed that he examined one Narendra S/o Ram
Babu. But this doctor failed to identify the accused before the Court.
The prosecution also failed to produce any evidence in order to prove
that the name of the father of the accused is Ram Babu. The name of
accused's father is Ram Bahore and it is nowhere shown that Ram Bahore
is alias of Ram Babu. With these discrepancies, the High Court refused
to accept that the accused was the same person who was examined by the
doctor PW24. However, even if it is presumed that there could have
been error in writing down the name of the father of the accused and
due to long time, the doctor failed to identify the accused, yet the
medical evidences are not clinching enough. The accused is a young
man, certain abrasions can be regularly sustained during the day while
working in and around. Moreover, the accused having worked in his
cousin's wedding might have received the abrasions. Medical opinion
for explanation to such abrasion is that such abrasion can occur due
to itching also. The other injuries on private part, in medical
opinion, could be a result of sexual intercourse with his wife. The
accused is a married man having children and it is not established
that his wife was living away from him. Hence, non-explanation of the
above said injuries is not an incriminating circumstance so as to
attribute any criminality upon the accused.
9. The next incriminating fact is the recovery of the blood-stained
underwear of the deceased made at the instance of the accused, from
the house of the accused. However, upon careful examination, serious
doubts are cast upon the incident of recovery. The witnesses to this
seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per the
deposition of PW9, many doubts are created. He deposed that red colour
underwear as well as an underwear of accused were seized. However, he
did not state as to whom did the red colour underwear belong. He also
did not mention the place from where it was recovered nor did he
mention the manner in which the articles were seized. PW22 further
made certain doubtful revelations stating that at the time of
recovery, only he, accused and the police were present. However, he
only confirms the recovery of a red colour underwear, but the place
and surrounding of the place of recovery were not deposed by PW22. The
deposition of the above two witnesses raises various doubts about
recovery of material facts. Therefore, the High Court correctly raised
doubt that it is highly unnatural that the accused will keep the
underwear in a pitcher in his own house.
10. The prosecution failed to prove its case on one more aspect. Upon
recovery of the underwear of the accused and the deceased, although
the same were sent for Serological examination and it was proved that
blood was found on the underwear of the accused, but no blood was
found on the undergarments of the deceased. During investigation, the
blood sample and soil samples were collected from the place of
incident. However, it is shocking to note that none of these samples
were sent for FSL examination. The said examination could have been
very useful to establish the identity of the accused. There is thus a
serious lacunae in the investigating procedure that a necessary test
was not conducted.
11. The underwear of deceased vide identification memo Ex.P/14 was put for
test identification. PW4 deposed that she identified the underwear as
the same was torn from the bottom. However, when this witness was put
to cross-examination, she deposed that none of the underwears which
were put for identification, was torn from the bottom. PW4 also stated
that the underwear was blood-stained. However, it is proved by
serological report that no blood was found on the underwear of the
deceased. Upon perusal, numerous contradictions appear from the
statements made by PW4, and serious doubt is raised not only on
recovery of the undergarments, but also upon the identification test.
12. The next evidence is the presence of the accused in the village at and
around the time of the incident against which the accused has pleaded
alibi. The prosecution placed on record the testaments of Ram Sunder
Sen, father of the deceased (PW3), stating that the accused came to
his house 3-4 times during the night of 18.05.2004. He also deposed
that on 18.05.2004 at 11.00 P.M. the accused came to his house and
asked for bidi, but he was turned back by his wife PW4. PW4 also made
deposition to this effect. However, upon cross-examination both these
witnesses stated that this fact was told to the police officer upon
examination. But no such fact is present in their statements made to
the police during investigation. The High Court disbelieved the said
fact as there was a deviation from the earlier statement. Further, the
High Court examined the statements of the defence witnesses, who
deposed that on the date of incident, the accused was present in
another village to attend the marriage function of his cousin. The
defence witnesses specifically deposed that the accused was present
during and after the function on 18.05.2004 and the accused stayed
there at night. It was further deposed that the accused left for his
home only after breakfast. This also explains the absence of the
accused in his village in the morning of the incident. The High Court
rightly relied upon the statement of an independent witness, namely,
Kalawati (PW1) who deposed that the accused was not in the village on
the fateful night as he had gone to the marriage ceremony in other
village. The said factum of marriage ceremony and function in other
village has been admitted even by the family members of the deceased.
13. The prosecution also placed on record an incident alleged to have
occurred a few days prior to the fateful day, when the accused made
the deceased sit on his lap and kissed her, for which the accused was
rebuked and beaten by the father of the deceased. However, in their
statement to the police, no such fact was deposed by PW3 or PW4 and it
was only before the Court that the above witnesses stated this fact.
Even if the said fact is presumed to be true, we concur with the
reasoning of the High Court that mere snugging the deceased once, in
itself, is no ground to connect the accused with the alleged incident.
14. The prosecution also adduced the testimony of Sanjeev Kumar Sen
(PW28), cousin of the deceased, who alleged that in the night
intervening between 18th and 19th May, 2004 at about 4:30 A.M., he
woke up to attend the call of nature when he saw the accused coming
towards his house from the Badi of the house of Vanshgopal Sarpanch.
Very close to that place, the deceased was found dead in the morning.
However, upon careful examination, it can be gathered that this
witness did not state such an important fact to the police officer.
Although he alleged that the said fact was known to him yet the report
was lodged against an unknown person. Further, if the veracity of this
statement is tested, it fails to adduce confidence. PW28 himself
stated that he saw the accused at 4:30 A.M., however, none of the
details as to the distance, surrounding, etc. were given. The source
of light in which the witness saw the accused is also not stated.
Therefore, the High Court correctly rejected the testimony of PW28.
15. The present case is, thus, based purely on circumstantial evidence. It
is a settled law that when prosecution relies on circumstantial
evidence, the following tests to be clearly established:
(i) The circumstances from which an inference of guilt is
sought to be drawn, must be cogent and firm;
(ii) Those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(iii) The circumstances taken cumulatively should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
The prosecution, however, in the present case, has failed at the
foremost to link the accused with the incident. The prosecution has
the responsibility to present a chain of events. The accused's
culpability could have been established if the blood samples were
tested and matched, the recovery of underwear is not proven to be that
of the deceased. Otherwise, the recovery was unnatural and did not
adduce confidence. One prosecution witness who is an independent
witness has stated that the accused had gone to another village on the
date of incident. There were material discrepancies in the statements
of the prosecution witnesses. The testimonies of the interested
witnesses, namely, PW3, PW4, PW5 and PW28 clearly show that they
materially improvised from their earlier depositions. The accused also
examined two defence witnesses who stated that the accused was
attending function in some other village on the fateful night. The
High Court went into each and every material aspect of the case,
examined at length the deposition of the witnesses and rightly held
that the links which are collected by the prosecution have not at all
been proved by any cogent evidence and, therefore, it is difficult to
hold that it was the accused who committed rape upon the deceased and
thereafter killed her.
16. Thus, in the light of the above discussion, we do not find any ground
to interfere with the judgment passed by the High Court. The appeals
are, accordingly, dismissed.
…....................................J
(Pinaki
Chandra Ghose)
…...................................J
(R.K. Agrawal)
New Delhi;
October 15, 2015
