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PETITIONER:

JAHARLAL DAS

Vs.

RESPONDENT:

STATE OF ORISSA

DATE OF JUDGMENT12/04/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 1388 1991 SCR (2) 298

1991 SCC (3) 27 JT 1991 (2) 264

1991 SCALE (1)713

ACT:

Indian Penal Code, 1860: Section 302 and 376- Rape and

murder- Criminal trial-Death penalty-Circumstantial

evidence-Sufficiency of evidence for conviction-Gravity of

offence cannot overweigh legal proof- Caution against basing

conviction on suspicion-Court should ensure that conjectures

and suspicions do not take the place of legal proof-

Necessary conditions for circumstantial evidence as a basis

for conviction explained-Inquest Report-Purpose of.

HEADNOTE:

The appellant was tried for rape and murder of a girl

aged five years. The entire evidence against him was

circumstantial: (a) the accused and the deceased were last

seen together; (b) false explanation given by the accused

regarding the whereabouts of the deceased; (c) alleged

recovery of the dead body of the deceased at the instance of

the accused and (d) presence of abrasions on the genital of

the accused as well as blood stains on his wearing apparels

and nail clippings. Relying on the circumstantial evidence

the Trial Court convicted him under Sections 302 and 376 and

sentenced him to death for the offence of murder and seven

years rigorous imprisonment for the offence of rape. The

High Court confirmed the conviction and the sentence awarded

by the Trial Court. In appeal to this court it was contended

on behalf of the appellant that the circumstantial evidence

is wholly insufficient to bring home the guilt of the

accused.

Allowing the appeal, this Court,

HELD: 1. The circumstantial evidence in order to

sustain the conviction must satisfy three conditions; (1)

the circumstances from which an inference of guilt is sought

to be drawn, must be cogently and firmly established; (ii)

those circumstances should be of a definite tendency

nerringly pointing towards the 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 it should also be incapable of

explanation on any other hypothesis than that of the guilt

of the accused [303E-F].

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299

Hanumant and Anr.v. The State of Madhya Pradesh, [1952]

SCR 1090; Reg v. Hodfe, [1838] 2 Lew.227; Dharam Das

Wadhwani v. State of Uttar Pradesh, [1974] S.C.R. 607 and

Jagta v. State of Haryana, [1975] 1 SCR 165, referred to.

2.In cases depending largely upon circumstantial

evidence there is always a danger that the conjecture or

suspicion may take the place of legal proof and such

suspicion however so strong cannot be allowed to take the

place of proof. The Court has to be watchful and ensure that

conjectures and suspicions do not take the place of legal

proof for sometimes unconsciously it may happen to be a

short step between moral certainty and the legal proof. At

times it can be case of 'may be true. But there is a long

mental distance between 'may be true' and 'must be true' and

the same divides conjectures from sure conclusions. The

Court must satisfy itself that the various circumstances in

the chain of evidence should be established clearly and that

the completed chain must be such as to rule out a reasonable

likelihood of the innocence of the accused. [304-G, 309E-F]

3.In the instant case the circumstance that the

deceased was last seen in the company of the accused is not

established beyond reasonable doubt. This circumstance was

not mentioned in the Inquest Report prepared by the

Investigating Officer. Further the statement of the parents

of the deceased that the accused took the deceased girl by

itself is not enough to conclude that the deceased was last

seen in the company of accused because even according to

them on being inquired the accused told them that he had

sent the girl back in a truck. [308C, 305F]

3.1 The prosecution has not conclusively proved the

crucial circumstance of the recovery of the dead body of the

deceased girl at the instance of the accused. No Panchnama

was prepared for such a discovery under Section 27 of the

Evidence Act and there is no mention in the Inquest Report

as to how the body was discovered. On the other hand there

is any amount of doubt and suspicion about the accused

having shown the place of occurrence. Once it is held that

the crucial circumstances namely the discovery of the body

at the instance of the accused is not established, than the

other circumstance are hardly sufficient to establish the

guilt of the accused. [308B-C-D, 306B, 307C]

3.2 The explanation given by the accused that he sent

the girl back to the village in a truck cannot be held to be

not plausible and therefore false because it is not

uncommon in villages for children to go about the fields and

walk short distance while coming back to the village. [308E]

300

3.3 The prosecution has also not established that the

accused had an intercourse on the day of the occurrence.

When the doctor who examined the accused stated that he

could not find any sign of sexual intercourse atleast within

one hour of his examination then it is only a matter of

conjectures as to when the accused had any intercourse. The

presence of blood in the nail clippings and on the underpant

does not also incriminate and do not connect the accused in

any manner with the alleged offences. The accused also had

given an explanation namely that his gums were bleeding and

in wiping out the same he got these blood stains. Even

otherwise this circumstance coupled with the circumstance of

last seen in the company of the accused would ;not amount to

legal proof of the guilt particularly when the crucial

circumstance namely that the accused showed the dead body is

held to be not established. When such a main link goes, the

chain gets snapped and the other circumstances cannot in any

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manner establish the guilt of the accused beyond all

reasonable doubts. Therefore there is a reasonable doubt

about the guilt of the accused and the benefit of the same

should go to him. Accordingly the conviction and sentence of

the accused is set aside. [309B-C, F-G]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

276 of 1991.

From the Judgment and Order dated 16.7.1990 of the

Orissa High Court in Criminal Appeal No. 117 of 1990 And

Death Reference No. 1 of 1990.

H.K. Puri (Amicus Curiae) for the Appellant.

A.D. Giri, Solicitor General and A.K. Panda for the

Respondent.

The Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. Leave granted.

This is a case of death sentence. The fact that such a

sentence is awarded even in the year 1990 would immediately

suggest that the offence involved should be of a grave

nature. Yes, the offence is not only grave but heinous and

inhuman.

A girl aged five years was a victim of rape and

thereafter murder. The sole appellant before us was tried,

convicted and sentenced to death by the Sessions Court and

confirmed by the High Court. It is a

301

case depending entirely on circumstantial evidence and the

obvious contention is that the circumstantial evidence is

wholly insufficient to bring home the guilt to the accused.

No doubt the offence is a shocking one but the gravity

of the offence cannot by itself overweigh as far as legal

proof is concerned. Invariable in such cases a person last

seen with the victim, unless otherwise there are

circumstances prima facie exonerating him, would be the

prime suspect but in the ultimate judicial adjudication

suspicion, howsoever strong, cannot be allowed to take the

place of proof. With that caution in mind we shall now

proceed to examine the facts and circumstances as put

forward and the various arguments advanced.

The deceased Disco alias Sukumari, a girl aged 5 years

was the daughter of P. Ws 1 and 6, the father and the mother

who were drummers by castes. They belong to village

Badachatra, an interior part of Mayurbhanj District. They

had three children and the deceased was the eldest. In the

year 1988 during Kalipuja time the accused who was the

resident of Tulsibani village about one kilometre away, came

to the house of P.Ws 1 and 6. He named their newly born

daughter. He took his meals in their house and went away

saying that he would come with the new dresses for the

newly born daughter. Next day i.e. on 9.11.88 he came to

their house in the morning with new dresses. He told the

parents that he would take the deceased with him to Bombay

Chhak to get new dresses for the other two children. He took

his lunch and went with deceased towards Bombay Chhak.

Sometime after his departure P.W 6 told her husband P.W.1 to

proceed to Bombay Chhak as the deceased might be crying.

Accordingly P.W. 1 accompanied by one Sambhu proceeded

towards that Chhak. On the way they met one Babuli and asked

him whether he had seen the accused and the deceased to

which he replied in the negative. P.W. 1 came back to the

village and sat in the shop of P.W. 2 who informed that he

had seen the accused going towards village Tulsibani

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alongwith the deceased. P.W. 1 and Sambhu then went to that

village but could not find them there. Therefore they went

to Jharpokharia Police Station and gave a report to the

Officer-in-charge P.W.11 stating that the deceased. P.W. 1

again went to the Tulshibani Village where a person informed

him that he has seen the accused going towards his house.

P.W. 1 went there and enquired the accused. He told P.W. 1

that the deceased had gone back home but P.W. 1, caught

hold of him but the accused squirmed away from his grip.

P.W. 1, however, again caught him and took him to his

Village and according to P.W. 1

302

on being questioned the accused confessed to have raped and

committed murder of the deceased. The accused is alleged to

have pointed the place where he had thrown the dead body,

whereafter P.W. 1 and others proceeded in that direction.

P.W. 11 the Police Officer also came in a jeep and took the

accused into custody, drew up F.I.R. and sent the same to

the Police Station for registration of a case. The accused

is alleged to have led the Police party to the spot where

the dead body was lying. P.W. 11 found the deceased lying

with injuries on her vagina and other parts. He held the

inquest in the presence of P.W. 4 and others and sent the

dead body for post-mortem. P.W. 7 conducted the post-

mortem. He noticed abrasions all over the body. He also

found one bruise on the left side of the forehead and a

lacerated wound of 2.5 cm x 1 cm x muscle deep starting from

the posterior angle of vagina along the perinium upto the

anus. On internal examination he found the following

injuries.

"(1) Soft tissues and muscles below the external

injuries to the neck were contused with extra-

vassation of blood into the soft tissues.

(2) Heamatoma under the scalp corresponding to

external injury No. 11.

(3) The hymen was torn and the floor of the vagina

i.e., vaginal channel was lacerated. This injury

corresponds to external injury No. 15."

The Doctor opined that all the injuries were antemortem

and homicidal in nature and cause of death was due to

asphyxia and shock as a result of strangulation and also due

to injuries to the vagina. He also opined that the injuries

on the neck suggest that the deceased was strangulated by

pressure of hands. So far injury to the vagina is concerned,

he was of the opinion that the same could have been caused

by forcible penetration of a male organ. The accused also

was examined on 10.11.88 itself by another Doctor P.W 8 for

some abrasions on his genital. P.W. 8, however,

categorically stated that on examining the accused he could

not find any recent sign of sexual intercourse. The

prosecution relied on some blood stains which were found on

his dhoti but the accused explained away by saying that they

were caused by the bleeding of his gums. The accused when

examined under Section 313 pleaded not guilty. He however,

admitted that he went to the house of P.W. 1 but denied the

rest of the case.

303

The trial court did not accept the P.W. 1, s evidence

regarding the extra-judicial confession alleged to have

been made by the accused. It held that nobody else has

mentioned about this extrajudicial confession and at any

rate it was supposed to have been made in the presence of

the police. We have also examined the evidence of P.W. 1 as

well as the evidence of the other witnesses. The trial court

has rightly rejected this part of the prosecution case

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regarding the alleged extra-judicial confession. As a matter

of fact we do not find anywhere mentioned that such a

confession was made by the accused to P.W. 1 neither in the

F.I.R. nor in the evidence of other witnesses who were also

said to have been present when the accused was brought to

the village by P.W. 1. P.W. 6, who is no other than the wife

of P.W. 1, did not even mention about it.

The trial court, however, relying on the other

circumstances convicted the accused under Sections 302 and

376 I.P.C. and sentenced him to death subject to

confirmation by the High Court and for seven years' rigorous

imprisonment for the offence of rape. The sentences are

directed to run concurrently. The High Court confirmed the

conviction and sentence awarded by the trial court.

As already mentioned this case rests purely on

circumstantial evidence. It is well-settled that the

circumstantial evidence in order to sustain the conviction

must satisfy three conditions; 1) the circumstances from

which an inference of guilt is sought to be drawn, must be

cogently and firmly established; ii) those circumstances

should be of a definite tendency unerringly pointing towards

the 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 it should also be incapable of explanation on any

other hypothesis than that of the guilt of the accused. In

the leading case Hanumant and Another v. The State of

Madhya Pradesh, [1952] SCR 1090 it is also cautioned thus:

"In dealing with circumstantial evidence there is

always the danger that conjecture or suspicion may

take the place of legal proof. It is therefore

right 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

304

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 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."

Mahajan, J., as he then was, has also aptly referred to

a passage containing the warning addressed by Baron Alderson

to the Jury in Reg v. Hodge, [1838] 2 Lew 227 which is

stated as under;

"The mind was apt to take a pleasure in adapting

circumstances to one another and even in straining

them a little, if need be, to force them to form

parts of one connected whole; and the more

ingenious the mind of the individual, the more

likely was it, considering such matter, to over-

reach and mislead itself, to supply some little

link that is wanting, to take for granted some fact

consistent with its previous theories and necessary

to render them complete."

In Dharam Das Wadhwani v. State of Uttar Pradesh,

[1974] SCR 607 it was held that " unlike direct evidence the

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indirect light circumstances may throw may vary from

suspicion to certitude and care must be taken to avoid

subjective pitfalls of exaggerating a conjecture into a

conviction. " In Jagta v. State of Haryana, [1975] 1 SCR 165

it was held that "The circumstances that the accused could

not give trustworthy explanation about the injuries on his

person and about his being present on the scene of

;occurrence are hardly sufficient to warrant conviction."

It may not be necessary to refer to other decisions of

this Court except to bear in mind a caution that in cases

depending largely upon circumstantial evidence there is

always a danger that the conjecture or suspicion may take

the place of legal proof and such suspicion however so

strong cannot be allowed to take the place of proof. The

Court has to be watchful and ensure that conjectures and

suspicions do not take the place of legal proof. The Court

must satisfy that the various circumstances in the chain of

evidence should be established clearly and that the

completed chain must be such as to rule out a reasonable

likelihood of the innocence of the accused. Bearing these

principles in mind we shall now consider the reasoning of

the courts below in coming to the conclusion that the

accused along has committed the offence.

305

The trial court relied on the following circumstances:

"(a) 'Last seen' theory-that the accused and the

deceased were last seen together.

(b) Conduct of the accused-that the accused

attempted to flee away when he could be seen at his

village by P.W.1;

(c) False explanation-the accused when questioned

gave false explanation regarding the whereabout of

the deceased;

(d) Recovery of the dead body of the deceased on

the showing of the accused-That the accused pointed

out the place where the dead body of the deceased

was lying inside a paddy field;

(e) Presence of injury on the genital as well as

stains of blood on the wearing apparel and

nailclippings of the accused."

The evidence of P.Ws 1, 2 and 6 are relied upon in

support of the first circumstance namely that the deceased

was last seen in the company of the accused. P.W. 1 the

father and P.W. 6 the mother deposed that on the day of

occurrence the accused came to their house and took the

deceased towards Bombay Chhak to purchase new clothes. The

accused only admitted to the extent namely that he had been

to their house and denied the rest of the prosecution case.

However, we shall accept the evidence of P.Ws 1 and 6 to the

effect that the accused took the deceased on that day to

Bombay Chhak. But that by itself is not enough to conclude

that the deceased was last seen in the company of the

accused because even according to them on being enquired,

the accused told them that he sent the girl back in a truck.

Even otherwise the distance between the two villages is not

much. P.W. 2's evidence, however, is relied upon that the

deceased was going in the company of accused. P.W. 2 is

also a native of the same village to which P.Ws 1 and 6

belong. He deposed that on a Wednesday he had been to

village pond to take his bath at about 12 noon and while

returning she saw the accused going towards east with a

minor girl aged about 5 years but P.W. 2 does not say that

the deceased was in his company. He, however, proceeded to

depose that he found P.W. 1 searching for some one and

thereupon P.W. 2 told him that he has seen the accused with

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a minor girl going towards the paddy field. He admitted that

did not know whose daughter was in the company of the

accused. In the cross-

306

examination he further admitted that he did not talk to the

accused. No. doubt P.W. 2's evidence, to some extent,

corroborates the evidence of P.Ws 1 and 6 but unfortunately

even at the stage of inquest this circumstance namely that

the deceased was last seen in the company of the accused,

was not noted. We will advert to this aspect at a later

stage. The important and crucial circumstance heavily

relied upon by the prosecution is the alleged recovery of

the dead body of the deceased on showing of the accused and

the accused pointed the place where the body of the deceased

was lying. For this again the prosecution relied on the

evidence of lP.Ws 1 and 11. Having carefully gone through

the evidence of P.W. 1 we find that he has improved his

version from stage to stage. As already noted both the

courts below were not prepared to place any reliance on his

evidence regarding the extra-judicial confession about which

he made no mention at any earlier stage. As far as the

recovery of the body is concerned, P.W. 1 however deposed

that he managed to catch hold of the accused and brought him

to the village and that the police came in a jeep and took

the accused into custody. Then all of them went towards

paddy field which had been pointed by the accused and on

search they found the dead body. P.W. 11 the Investigating

Officer deposed at he went to village and found the accused

to have been detained. He therefor prepared the F.R.I. and

sent the same for registration of the crime. Then he

arrested the accused and his evidence and his evidence

thereafter to put in his own words reads as under:

"The accused pointed out the place where the dead

body of the deceased was lying and thereafter led

me to the paddy field wherefrom I could recover the

dead body of the deceased Disco. As there were good

number of persons present apprehending danger to

the accused I sent him to the police station.

During course of investigation, I examined

witnesses, seized the dhoti (M.O. iii),Shirt (M.O.

iv) and this chadi marked M.O.VII from the accused

under the seizure list already marked Ext. 3. The

dead body of the deceased was lying in the paddy

field where there were paddy plants which had been

damaged and scattered. I held inquest over the dead

body of the deceased Disco in presence of witnesses

under the inquest report already marked Ext. 1. I

noticed INJURIES on the vagina and other parts of

the body of the deceased. After inquest I sent the

dead body for P.M. examination through constables."

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According to this evidence the accused is alleged to

have taken P.W. 11 and others to the open paddy field where

the dead body was lying. It is only thereafter that the

inquest report was drawn up. However, P.W. 11 stated in his

evidence that before going to the paddy field the F.I.R. Ex.

P. 10 was drawn up by him. Surprisingly we find a mention

about the discovery of the body in the F.I.R. itself. But

the same is not found in the inquest. There is not even a

reference to the accused in the column No. 9 of the inquest

report where the information of witness as to the cause of

death has to be noticed. We are aware that the purpose of

inquest report is only to ascertain the cause of death but

in a case of this nature there should have been atleast a

mention in the inquest report as to how the body was

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discovered. Apart from that usually a panchanama is prepared

for such a discovery made under Section 27 of the Evidence

Act but strangely in this case there is no such panchanama

nor there is any other evidence of P.Ws 1 and 11. P.W. 6

does not say anything about this aspect. As a matter of fact

the trial court has noted the discrepancies in the evidence

of P.Ws 1 and 11 and it is observed as under:

"The Investigating Officer, P.W. 11 has stated

something more about the find of the dead body. He

speaks that the accused pointed out the place where

the dead body of the deceased was lying and

thereafter led him to the paddy field wherefrom the

dead body of the deceased could be recovered.

Though this part of this evidence has not been

supported by P.W. 1,but from the evidence of both

P.Ws 1 and 11 coupled with the evidence of P.W.4 I

am persuaded to hold that on the showing of the

accused, the dead body of the deceased was

recovered from a paddy field."

We have perused the evidence of P.W. 4. His evidence

does not in any manner incriminate the accused. P.W. 4

deposed that the dead body of the deceased was found lying

in paddy field and that the police held inquest over the

dead body in his presence and that the inquest report is P.

1 in which he put his signature as a witness. Nothing more

is stated by him. He does not even refer to the presence of

the accused at the place where the dead body was found or at

the time of inquest, which was held also there. P.W. 4 does

not in any manner help the prosecution case so far as this

circumstance is concerned. If ready the body has been

discovered at the instance of the accused there should have

been discovered at the instance of the accused there should

have been a panchanama and a mention about the same in the

inquest report. P.W. 11 categorically in his evidence has

stated that after sending the F.I.R. the accused was

questioned and the body was discovered there-

308

after at the instance of the accused and the inquest was

held over the dead body and P.W. 4 was a panch witness to

the inquest and he also affixed his signature in the inquest

report. But as mentioned above P.W. 4 does not say anything

about the accused being present anywhere near the place

where the dead body was found nor there is a reference to

the accused in the inquest report. The only two remaining

witnesses P.Ws 1 and 11 namely the father of the girl and

the Investigating Officer respectively have contradicted

each other. That is the type of evidence regarding this

crucial circumstance. It is highly dangerous to accept the

same and hold that the dead body was discovered at the

instance of the accused. Having given our careful

consideration we are of the firm opinion that the

prosecution has not established this circumstance

conclusively. On the other hand there is any amount of doubt

and suspicion about the accused having shown the place of

occurrence. We may also point out at this stage that the

circumstance that the deceased was last seen in the company

of the accused was not mentioned in the inquest report.

Therefore the first circumstance also namely that the

deceased was last seen in the company of the accused is not

established beyond reasonable doubt. However, when once it

is held that the crucial circumstance namely the discovery

of the body at the instance of the accused is not

established, then the other circumstances are hardly

sufficient to establish the guilt of the accused. The courts

below have also observed that the accused gave a false

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explanation. According to the prosecution case the accused

is supposed to have stated to P.Ws 1 and 6 that he sent away

the deceased in a truck. The courts below held that this

explanation is false mainly on the surmise that a minor

girl could not have come back on her own in a truck. We are

not convinced that on this surmise alone we can hold that

the accused has given a false explanation. It is not

uncommon in villages for children to go about the field and

walk short distances while coming back to the village. In

any event the accused had given an explanation that he sent

the girl back to the village in a truck and the same cannot

be held to be not plausible and therefore false.

Then the last circumstance relied upon by the courts

below is the presence of some abrasions on the genital of

the accused and presence of stains blood on the wearing

apparels and nail clippings. The prosecution wanted to show

that because of the penetration the accused sustained the

abrasions on his penis. The Doctor, P.W. 8 who examined the

accused has stated that he found only two pin-head abrasion

on the genital of the accused and on examination he opined

that he could not find any recent sign of sexual intercourse

and he also

309

added that there was no such sign of having intercourse

within one hour of his examination. However to a court

question, P.W 8 stated that as a result of forcible sexual

intercourse those abrasions can be possible. We are unable

to see as to how this evidence, in any manner, is helpful to

the prosecution. When P.W. 8 stated that he couldn't find

any sign of sexual intercourse atleast within one hour of

his examination then it is only a mater of conjectures as to

when the accused had any intercourse. The accused is a man

aged 57 years and it is not as if he was not used to sexual

intercourse. In any event the prosecution has not

established that the accused had an intercourse on the day

of the occurrence. Then the presence of blood in the nail

clippings and on the underpant does not also incriminate and

do not connect the accused in any manner with the alleged

offences. The accused also had given an explanation namely

that his gums were bleeding and in wiping out the same he

got these blood stains. Even otherwise having given our

earnest consideration, we are not able to say that this last

circumstance coupled with the circumstance of last seen in

the company of the accused amount to legal proof of the

guilt particularly when the crucial circumstance namely that

the accused showed the dead body is held to be not

established. when such a main link goes, the chain gets

snapped and the other circumstances cannot in any manner

establish the guilt of the accused beyond all reasonable

doubts. It is at this juncture the Court has to be watchful

and avoid the danger of allowing the suspicion to

take the place of legal proof for sometimes

unconsciously it may happen to be a short step

between moral certainty and the legal proof. At

times it can be case of 'may be true'. But there is

a long mental distance between 'may be true' and

'must be true' and the same divides conjectures

from sure conclusions. The least that can be said

in this case is that atleast there is a reasonable

doubt about the guilt of the accused and the

benefit of the same should go to him.

We are conscious that a grave and heinous crime has

been committed but when there is ;no satisfactory proof of

the guilt we have no other option but to give the benefit of

doubt to the accused and we are constrained to do so in

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this case. Accordingly, the appeal is allowed. The

conviction and sentence of the accused is set aside and he

shall be set at liberty forthwith if not required in any

other case.

T.N.A. Appeal allowed.

310