LAW FOR ALL

Rape of a child of 3 years & murder =WHEN INCRIMINATING CIRCUMSTANCE NOT PUT TO THE ACCUSED AT 313 EXAMINATION , IT CAN NOT BE CONSIDERED AS PROVED EVIDENCE , WITHOUT EXPLANATION FROM THE ACCUSED = convicting the appellant under Sections 376(2)(f) and 302 of the Indian Penal Code, 1860 (hereinafter referred to as `the IPC’), sentencing him to death. =The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. = Undoubtedly, the FIR lodged has disclosed the previous statement of the informant which can only be used to other corroborate or contradict the maker of such statement. However, in the event that the informant is a person who claims to know the facts, and is also closely related to the victim, it is expected that he would have certainly mentioned in the FIR, all such relevant facts. The omission of important facts affecting the probability of the case, is a relevant factor under Section 11 of the Evidence Act to judge the veracity of the case of the prosecution. (Vide: Ram Kumar Pandey v. The State of Madhya Pradesh, AIR 1975 SC 1026). = An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself. - The instant is one of circumstantial evidence, and only two circumstances have appeared against the appellant, namely, I. That he had been able to point out the place where Sima Khatoon was lying, after his demand for Rs.20/- had been accepted; and II. That subsequently, he had left the said place and boarded a bus immediately. The aforesaid circumstances in isolation, point out conclusively, that the appellant has in fact committed the said offence. Furthermore, the most material piece of evidence which could have been used against the appellant was that the blood stains found on his underwear matched the blood group of Sima Khatoon. However, the said circumstance was not put to the appellant while he was being examined under Section 313 Cr.P.C. by the trial court, and in view thereof, the same cannot be taken into consideration. Hence, even by a stretch of the imagination, it cannot be held that the aforementioned circumstances clearly point towards the guilt of the appellant, and in light of such a fact situation, the burden lies not only on the accused to prove his innocence, but also upon the prosecution, to prove its case beyond all reasonable doubt. In a case of circumstantial evidence, the aforementioned burden of proof on the prosecution is much greater. In view of the above, the appeal succeeds and is allowed. The judgments and orders passed by the courts below impugned before us, are set aside. The appellant has been in jail for the last six years, he must be released forthwith, unless wanted in some other case. Before parting with the case, we feel that it is our duty to appreciate the services rendered by Shri Ratnakar Dash, learned senior counsel, who acted as amicus curiae.