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Form No: J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Anuj Singh

CRA 259 of 2017

Sunil Lakra & Anr.

v.

The State of West Bengal & Anr.

For the Appellants: Mr. Manas Kumar Das, Ld. Advocate.

Mr. Prodyut Kumar Roy.

Mr. Aritra Kumar Thokdar.

For the State: Mr. Anurag Sardar, Ld. Advocate.

Hearing concluded on- September 10

th, 2026

Judgment pronounced on- September 15

th, 2026

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RAJASEKHAR MANTHA , J.

1. This appeal is directed against the judgment of conviction and order of

sentence dated February 28

th, 2017, and March 1

st, 2017, respectively,

passed by the Additional Sessions Judge, Alipurduar, in Sessions Trial

No. 3(4)/2013, arising out of Sessions Case No. 100/2013.

2. The appellants were sentenced to 10(ten) years of rigorous imprisonment

and to pay a fine of ₹5,000 (five thousand) for the offence of rape under

Section 376(2)(g), Indian Penal Code. In default thereof, each appellant

was directed to serve 5(five) months of simple imprisonment.

3. The appellants were also sentenced to life imprisonment and to pay a

fine of ₹10,000 (ten thousand) for the offence of murder under Section

302, IPC. In default thereof, each appellant was directed to serve 10(ten)

months of simple imprisonment. Both sentences were directed to run

concurrently. The period of pre-trial detention suffered by the appellants

was directed to be set off in terms of Section 428 of the Code of Criminal

Procedure.

THE PROSECUTION CASE

4. On September 30

th

, 2012, the victim girl aged approximately about 18

years went outside her home to answer the nature’s call and went

missing thereafter. On October 2

nd

, 2012, her half-clad body was found

in the bushes of Munshi Line, Rydak Tea Garden, PS. Samuktala

District- Jalpaiguri. The victim was known to have a history of leaving

and staying away from home without intimating her family. She suffered

from epilepsy and was mentally slow.

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5. The victim’s disappearance from September 30

th, 2012 to October 2

nd,

2012, coincided with the disappearance of the appellants from Rydak Tea

Garden. The victim and appellants resided in the same village.

6. On October 2

nd, 2012 UD Case No. 52 of 2012 was started by Samuktala

P.S., and the inquest commenced. PW 20, an SI of Smauktala P.S,

conducted the inquest on the victim.

7. The inquest report recorded that the dead body was found in the bushes

of a beetle nut garden behind the house of one Manga Kerketta (PW-7),

near Rydak Tea Garden. No external physical injuries were found on the

said dead body. The victim was suffering from epilepsy. Neighbors

discovered the dead body and informed the victim's family on October

2

nd, 2012.

8. The inquest report recommended a post-mortem examination, which was

conducted on October 4

th, 2012. It revealed that the victim was raped

and murdered, dying as a result of severe and excessive penetrative

sexual assault.

9. Formal FIR No. 292/2012, dated October 11

th

, 2012, was registered

by the Samuktala PS, based on a complaint lodged by the victim's father,

(PW-1), of the same day. The said complaint was therefore lodged 9 days

after the victim's dead body was recovered on October 2

nd

, 2012, and 7

days after the PM report opined that the victim was raped and murdered.

Neither the FIR nor the inquest report named the appellants. The

appellants were arrested from Delhi two months after October 2

nd, 2012,

sometime in December 2012.

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10. Upon completion of the investigation a charge sheet was submitted against

the appellants under Sections 376(2)(g), 302 and 34 of the Indian Penal

Code. On April 24, 2013, the learned Trial Court framed charges against

both appellants under Section 376(2)(g) of the Indian Penal Code for the

alleged joint commission of rape and under Section 302 read with

Section 34 of the Indian Penal Code for allegedly committing the murder

of the victim in furtherance of their common intention. The charges were

read over and explained to the appellants, who pleaded not guilty and

claimed to be tried.

THE TRIAL AND EVIDENCE ON RECORD

11. PW-1 was the father of the victim girl. He deposed that the victim girl

was suffering from epilepsy. On the fateful day, the victim went out of her

house to attend to nature’s call and did not return. PW-1 searched for his

daughter for four days from the date of her disappearance on September

30

th

, 2012. The tea leaf pluckers of Rydak Tea Garden found the dead

body of the victim at the Supari Garden (betel nut garden) of PW 7,

Manga Kerketta, and alerted the villagers. He rushed to the PO and

found the naked dead body is that of his daughter.

12. He confirmed that PW-3, Biswajit Chakraborty wrote the complaint at

the police station on his behalf. He later came to learn that the appellants

raped and murdered his daughter. The appellants were from his locality.

13. During cross-examination, PW-1 has deposed that he did not see any

injury marks on his daughter’s dead body. He confirmed that he lodged

the complaint on the date he found the victim's dead body. The dead body

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of the victim was discovered on October 2

nd, 2012. PW 1, however, lodged

the complaint on October 11

th, 2012.

14. PW-1 confirmed that none from his locality had informed him that the

appellants raped and murdered his daughter. He, however, suspects the

appellants because they left the locality immediately after his daughter

went missing. He confirmed that on earlier occasions as well, the victim

girl used to leave the house without informing any one.

15. PW-2, Subodh Barua, was a member of Rydak Gram Panchayat, where

the victim girl resided. He was an inquest witness. He confirmed that the

victim suffered from epilepsy. The victim girl was missing since

September 30

th

, 2012. On October 2

nd

, 2012, police recovered her dead

body from a bush behind the house of PW 7, Manga Kerketta. The police

called him to the PO; he went there. He signed on the inquest report. The

defense did not cross-examine him.

16. PW-3, Biswajit Chakraborty, scribed the complaint. He was a law clerk.

He has deposed that on October 11

th, 2012, PW-1 requested him to draft

the said complaint. PW-3 read out and explained the contents of the

complaint to PW-1, who then affixed his left-thumb impression (LTI) on it.

During cross-examination, PW-3 has deposed that he regularly visited the

police station to draft complaints for various aggrieved persons.

17. PW-4 was the mother of the victim girl. She confirmed that the victim

was 15 years old when she went missing.. She has deposed that the

assailants raped her daughter at the betel garden of PW 7. The victim

went missing on September 30

th, 2012, and remained untraceable despite

several efforts to trace her until her dead body was found on October 2

nd,

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2012 at the PO. She had no personal knowledge of the incident. The

defense did not cross-examine her.

18. PW-5 was the victim’s brother. He confirmed that his sister remained

untraceable for three days before her naked dead body was discovered in

the said supari garden. The defense did not cross-examine him. PW-6, the

victim’s sister-in-law, confirmed that the dead body of the victim was

found lying at the said supari garden. The victim was raped and

murdered. The defense did not cross-examine her.

19. PW 7, Manga Kerketta , the owner of the said Supari Garden , has

deposed that he was at his house in Rydak village when the victim went

missing on September 30

th

, 2012.On that fateful night he was inside his

room. On hearing a shout, he came out to the road inside his Supari

garden and saw the appellants, Sunil and Samir. On the following

morning of October 1

st, 2012, PW 7 discovered the victim’s fully naked

body at the PO. In the trial, he identified both appellants. During cross-

examination, PW 7 confirmed that the appellants previously resided in the

labor quarter of his supari garden. They were known to him. He clarified

that the road inside his garden, where he saw the appellants, is

approximately one-quarter of a kilometer distant from his house. There

were street lights on the pathway on September 30

th

, 2012, when he

claimed to have seen the appellants thereat.

20. During cross-examination, PW 7 has contradicted himself and has stated

that he did not come out from his room after hearing the said shout. He,

however, maintained that he saw Sunil and Samir that night.

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21. PW 8, Pradeep Kerketta, was a resident of Rydak and co-villager of the

appellants, has deposed that between 10:00 PM and 11:00 PM on

September 30

th, 2012, he was returning home from work when he saw

the appellants on the road with the victim. The two appellants were trying

to forcibly grab the victim by her hands and dragging her with them. He

has deposed that the mother of the victim girl covered the girl’s dead body

with a cloth. He identified the appellants in the trial. During cross-

examination, PW 8 reaffirmed that he saw the appellants holding the

victim's hand and forcefully dragging her along the road.

22. PW 9, Dipesh Oraon, was a resident of Bharat Chowpati, Nimti, has

deposed that on September 30

th

, 2012, the appellants came to his house

requesting for shelter and stayed for five to six days. The appellants told

him that they will leave for Delhi in a few days. Before leaving for Delhi,

the appellant Samir sold his mobile phone to PW 9. Police later arrived at

PW 9’s residence, informed him of the murder, and seized Samir’s mobile

phone. He identified the appellants in the trial.

23. During cross-examination, PW 9 has deposed that the appellants were

residents of Rydak village. PW 9 lived at Nimti. The distance between the

two villages is substantial.

24. PW 10 was Moniram Bagwar . He was a resident of Munshi Line,

Rydak Tea Garden. He deposed that the dead body of the victim girl was

found in the betel nut garden of PW 7. The appellants resided at the said

garden. The appellants were untraceable in the village afterthe victim girl

went missing. He identified the appellants in the trial. During cross-

examination, he has, however, deposed that he did not know how the

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victim girl died. He confirmed that the appellants were workers at the tea

garden.

25. PW 11, Dilghit Barua, resided in Munshi Line, Rydak Tea Garden, and

worked as a tea garden worker and PW 12, Magda Minj, resided in

Munshi Line, Rydak Tea Garden have deposed along the lines of PW 10.

26. PW 13, Suroj Balmiki, was a resident of the Munshi Line, Rydak Tea

Garden. He has deposed that the police, along with the appellants,

arrived at the PO. The appellants showed the place, where the victim girl

was murdered, to the police. He identified the appellants in court.

27. PW 14 was Akshay Roy. He was cited as a witness by the prosecution

but not examined in the trial by either party.

28. PW 15, Gonu Mangar, was the owner of a video camera shop and a

videographer by profession . Sometime in December 2012, the

Samuktala Police Station assigned him the task of video recording the

statements made by appellants to the police at the police station. He

identified them in the trial. The police further directed him to video record

several areas at Rydak, Munshi Line, and Rydak. He handed over the

video cassette of such recordings to the Samuktala Police Station.

29. PW 16, Dr. Amitava Dasgupta, has deposed that on January 31

st

,

2013, he was posted as a Medical Officer at the Rydak Tea Garden

Hospital. On that date, he issued the birth certificate of the victim girl,

which stated her date of birth as September 20

th

, 1994. He handed over

the birth certificate to the police and identified it in the trial.

30. PW-17 was Parimal Ray bearing constable No. C/887). On October

2nd, 2012, he was posted at Samuktala P.S. At around 14:30 hours, he

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proceeded towards Raidak Tea Garden, Munshi Line, alongside PW 20, SI

Prem Kumar Thami, to investigate U.D. Case No. 52/12 dated October 2,

2012 concerning the death of a 15-year-old girl. He confirmed that PW 20

conducted inquest over the victim's dead body in his presence and

handed over the same to PW 17 at 16:45 hours on the same date for

transporting it for PM examination. PW 17 identified it in Court.

31. PW 17 transported the victim's dead body to the Alipurduar Morgue, from

where it was transferred to North Bengal Medical College & Hospital

(NBMCH) for post-mortem. He identified the victim’s dead body to PW-19,

the PM Doctor. Upon conclusion of PM examination, PW 19 handed over

the victim's viscera, blood samples, and wearing apparel to PW 17; he

delivered them to PW 20, SI Thami.

32. PW 17 confirmed that PW 20 seized such articles and prepared two

seizure lists in PW 17’s presence. He signed and identified the said

seizure list in the trial. PW-18, Dudheshwar Das, was posted as

Constable on October 11, 2012, at Samuktala P.S . He accompanied

PW 22, the I.O. to the PO. During cross-examination, he could not recall

the name of the PW 20.

33. PW-19: Dr Dibakar Chhetri (Demonstrator, Forensic Medicine). On

October 4

th

, 2012, PW 19 performed post-mortem on the victim girl. He

arrived at the following findings as regards the injuries and cause of the

death of the victim girl:-

a) The body was decomposed, showing dark discoloration,

putrefactive gas swelling, and skin marbling across the chest,

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abdomen, and limbs. Scalp hair was loosening at the roots. The

dead body of the victim had a torn, greenish printed salwar.

b) A tear of the hymen and fourchette extended to the fossa

navicularis, with muscle-deep tears at the 5 o'clock and 7

o'clock positions, accompanied by congestion of the labia

minora, hymen, and vaginal cavity.

34. PW 19 handed over the apparels, scalp hair, nail scrapings, vaginal

swabs/smears, post-mortem blood, and viscera to the constable, PW

17. PW 19 has deposed that the cause of death was forceful penetration

in the vagina. The estimated time of death was 40 to 45 hours prior to

the post mortem examination.

35. PW-20, SI Prem Kumar Thami, was posted at Samuktala P.S . On

October 2

nd, 2012, he received information from Duty Officer ASI

Gurudas Roy regarding a dead body of a victim discovered in Rydak

Munshi Line. He and PW 17, Constable Parimal Ray, arrived at the PO

around 15:05 hours. The victim's elder brother, PW 5, identified the

victim’s dead body to PW 17 and 20 and informed them that she was

about 18 years old.

36. During the inquest, PW 20 did not find any external injury marks on

her neck, body, or genitalia. He noted a greenish, snail-like discharge

in the vaginal area. He made a spot enquiry which revealed that the

victim was last seen at her home in the afternoon of September 30

th

,

2012, before going missing. Her body was discovered in the morning of

October 2

nd, 2012, behind a labor quarter at said Supari Garden owned

by PW 7.

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37. PW 20 confirmed having prepared the dead body challan and

dispatched the body to Alipurduar S.D. Hospital via PW 17. He

identified the challan in the trial. During cross-examination, PW 20

clarified that the labor quarter was situated behind the tea garden of

Manga Kerketta, PW 7 where the villagers found the dead body.

38. PW-21, Fabinu Janwar, a resident of Munshi Line, Rydak, has

deposed that two years ago, the police arrived at Munshi Line with the

appellant Sunil Lakra and searched his house. They seized a t-shirt

and trousers from his house in PW-21's presence under a formal

seizure list, onto which PW-21 affixed his left thumb impression. PW-

21 identified the appellant, Sunil Lakra, in the trial.

39. PW-21 further deposed that police also went to the house of appellant

Samir Charat and seized a pair of trousers from his house in PW 21’s

presence. Police prepared a seizure list for this recovery, on which PW-

21 also affixed his LTI. During cross-examination, PW-21 confirmed

that he put his LTI on the said seizure list at the Police Station. He,

however, deposed that trousers and t-shirt produced during the trial

did not match with the apparels actually seized by the police in his

presence. He further deposed that he affixed his LTI on the said two

seizure lists in front of his house. He could not recall the exact date of

the seizure.

40. PW-22 was the Sub-Inspector of Police at Samuktala PS on October

11, 2012, the IO. He identified the FIR(supra) in the trial. He deposed

that on October 11

th, 2012, he visited the PO and prepared a rough

sketch map along with an index, both of which he identified in the trial.

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He arrested the appellants, Sunil Lakra and Samir Charat, in Delhi and

produced them before the court. He has confirmed seizing the wearing

apparels of the appellants under two separate seizure lists, which he

identified in the trial. He, however, did not send them for FSL

examination.

41. PW-22 has deposed that the appellants confessed their guilt to him.

However, he did not produce the appellants before a Magistrate to

record their statements under Section 164 of the CrPC. PW-22 has

recorded the statements of PW-10 and PW-11 under Section 161 of the

CrPC. Both PW-10 and PW-11 deposed that the disappearance of the

appellants matched the exact time the victim went missing.

42. PW 22 did not send PW 7, 8, and 9 to the local magistrate for

recording their statements under Section 164, CRPC. PW 7 claimed to

have seen the appellants on September 30, 2012, in his betel nut

(supari) garden when the victim went missing. The victim's dead body

was later discovered in this same garden. PW-8 saw the victim with the

appellants on September 30, 2012. He saw the appellants forcefully

dragging the victim away. PW-9 gave shelter to the appellants on

September 30, 2012. The appellants told PW-9 that they would leave

for Delhi within 5 to 6 days.

FINDINGS OF THE LD. TRIAL JUDGE

43. The learned trial Judge convicted the appellants based on the evidence of

PW-7, PW-8, and PW-9, and the subsequent arrest of the appellants from

Delhi. The learned trial judge linked the evidence of PW-7, PW-8, and PW-9

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to the subsequent arrest of the appellants from Delhi pointing towards the

guilt of the appellants.

44. The learned Trial Judge noted corroboration of the aforesaid evidence

from the post-mortem report of the victim, which established that the

victim had been raped and murdered. The learned trial judge linked the

disappearance of the appellants with the missing of the victim, both events

happening September 30

th

, 2012.

ANALYSIS OF THIS COURT

a) The evidence of PW 7, 8, and 9 are contradictory and tutored and

thus is unreliable

45. PW-7 has deposed that he owned a supari (betel nut) garden from where

the victim's dead body was discovered. He has deposed that on

September 30, 2012, he heard a shout which prompted him to step

outside his house. He saw the appellants, Sunil and Samir, thereat. He,

however, did not question the appellants about their presence.

46. During cross-examination, PW-7 took deposed to the contrary stating

that he did not leave his room even after hearing the said shout. He

further clarified that the road inside the Supari Garden where he saw

the appellants was located about a quarter of a kilometer from his

house. He deposed that there was no provision of electric lighting along

that road. Adequate lighting was, thus, unavailable at the PO. PW 7,

thus, abandoned his evidence that he saw the appellants at the PO.

47. PW 7 has deposed that the appellants used to live in the labor quarter

at the tea garden. The presence of the appellants at the PO is thus not

unnatural. He deposed that on the following morning i.e. October 1

st,

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2012, he discovered a dead body of the victim girl. The victim girl was

known to him. The evidence of other PWs and the inquest report have

established that the dead body of the victim was discovered on October

2

nd, 2012. Thus, PW 7 remained silent about having seen the appellants

for a day which is unexplained. Hence the evidence of PW-7 that he saw

the appellants at the PO in the night of September 30

th, 2012, is not

believable.

48. PW-8 has deposed that he saw the appellants, Samir and Sunil, on the

road with the victim girl in the night of September 30

th

, 2012. He also

deposed that they were dragging the victim girl with them without her

consent. He, however, did not intervene and stop the appellants. The

appellants were not armed.

49. In the natural course of events, PW-8, thus, ought to have intervened

to save the victim girl or at the very least, informed her parents

immediately. He was aware that the victim was suffering from epilepsy

and in the past, had frequently left her home without informing anyone.

Instead, he waited for two to three days before the victim girl was found

dead in the said Supari Garden. The unusual conduct of the appellants

renders his evidence unreliable.

50. Further, two days intervened between the appellants being last seen

with the victim girl and the estimated time of her death. She was last

seen with the appellants by PW 8 on September 30

th

, 2012. The post

mortem examination was conducted on October 4

th

, 2012. The PM

Doctor opined that the victim's death likely occurred 24 to 45 hours

prior to the PM examination. Working backwards from October 4

th,

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2012, 45 hours places the estimated time of death of the victim around

October 2

nd, 2012. Thus, two full days intervened between the last-seen

instance and the actual estimated time of death. This creates a

substantial time gap between the appellants being last seen with the

victim and the time of her death.

51. The "last seen theory" alone cannot form the sole basis for a conviction

under Sections 376 and 302. The prosecution must produce additional

corroborative evidence namely, medical evidence correlating the death of

the victim with the accused persons. Such a correlation is absent in the

present case. In Anand Jakkappa Pujari @ Gaddadar v. The State Of

Karnataka, reported in 2026 INSC 417, it was held as follows:-

41. The last seen theory 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.

43. By now, it is a well settled position of law that the

circumstance of “last seen together” does not by itself and

necessarily lead to the inference that it was the accused who

committed the crime. There must be something more

establishing the connectivity between the accused and the crime.

The Courts should look for some corroboration.

Emphasis Applied

52. PW-9 provided shelter to the appellants without knowing the

allegation of rape and murder against them. The appellants were his

friends; they stayed at his house for five to six days starting from

September 30

th

, 2012, coinciding with the period when the victim went

missing. The appellant Samir sold him a mobile handset before leaving

for Delhi. The evidence of PW-9 is, thus, relevant to the extent that the

appellants resided in his house and nothing further. It cannot be ruled

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out that the appellants stayed at PW-9's house to spend time with their

friend, PW 9.

53. The Ld. Trial Judge, however, linked PW-9's evidence, where the

appellants informed PW 9 that they will leave for Delhi, with the

appellants' subsequent arrest from Delhi, and held against the

appellants.

54. PW 9 has deposed that the appellant Samir sold his mobile handset to

him and informed him that they are leaving for Delhi. The police seized

the said mobile handset from the house of PW 9. No material, however,

was extracted from the mobile phone linking the appellants with the

crime.

55. Had the appellants intended to flee, they would not have informed

PW-9 of their intention to go to Delhi. There was no need to sell the

mobile handset to PW 9. This mobile set actually helped the police to

trace out PW 9, who told the police that the appellants left for Delhi.

The appellants would not have left evidence with PW 9 for the police to

trace them.

56. One may argue that the appellants may have wanted to get rid of the

mobile set to evade their detection by the Police. The appellants would

have destroyed the phone. The appellantsmay have sold the mobile set

to fund the trip to Delhi they would not have revealed their destination

to PW 9, which actually did happen. PW-9 therefore appears to have

been tutored.

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57. In M.P. v. Balveer Singh, reported in (2025) 8 SCC 545, the test for

examining a tutored witness was specified as follows:-

63. …… or by proving that the witness fell prey to tutoring

and was influenced by someone else either by cross-

examining such witness at length that leads to either material

discrepancies or contradictions, or exposes a doubtful

demeanour of such witness rife with sterile repetition and

confidence-lacking testimony, or through such degree of

incompatibility of the version of the witness with the other

material on record and attending circumstances that negate

their presence as unnatural.

65.3. When eyewitness is examined at length it is quite possible

for him to make some discrepancies. But courts should bear in

mind that it is only when discrepancies in the evidence of a

witness are so incompatible with the credibility of his version

that the court is justified in jettisoning his evidence.

Emphasis Applied

58. In Gangadhar Behera v. State of Orissa, reported in (2002) 8 SCC

381, ‘material discrepancy’ in the evidence of a witness was explained

as follows:-

15……….Material discrepancies are those which are not normal,

and not expected of a normal person. Courts have to label the

category to which a discrepancy may be categorised. While

normal discrepancies do not corrode the credibility of a

party's case, material discrepancies do so. These aspects were

highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6

SCC 81 : 2002 SCC (Cri) 1220] .

Emphasis applied

59. In the present case, the evidence of PW-7 tendered during his

examination-in-chief ‘materially contradicts’ his evidence given during

his cross-examination. The evidence of PW 8 also suffers from the same

vice. The contradiction in the evidence of PW 7 does not stem from his

previous statements given to the police or magistrate or from a

comparison with another witness's evidence.

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60. When a witness directly contradicts his/her own examination-in-chief

during his own cross-examination, it constitutes a material

contradiction and may even amount to falsehood. The reason is that a

witness may forget what he has stated to the police and magistrate, but

he is expected not to forget what he or she has deposed on oath before

the Court in his examination-in-chief.

61. The evidence of PW 9 is tutored in that it makes an artificial attempt to

fit into the prosecution case. The evidence of PW 9 appears to be set up

in that the appellant Samir sold his mobile set to PW 9 and also revealed

that the appellants are heading towards Delhi. The police later reached

out to PW 9, seized the mobile set, and subsequently arrested the

appellants from Delhi.

b) Non-examination of PWs 7, 8, 9 and appellants Section 164 , CRPC

62. PW 7 and PW 8 were key prosecution witnesses. PW 7 claimed to have

seen the appellants at the PO. PW 8 saw the victim with the appellants.

PW 9 purchased the mobile set of the appellant Samir. Ethical tapping of

this mobile phone led the police to PW 9 and ascertain the whereabouts of

appellants, who told PW 9 that they will go to Delhi.

63. PW 22, IO, thus, should have given greater weight and attention to their

statements and knowledge, and sent them before the Magistrate for

recording their respective statements. This could have enabled the

prosecution to use the same for corroboration in absence of direct eye-

witness account of the crime.

64. The absence of a statement of the appellants confessing their guilt under

Section 164 of the CrPC is a notable factor. PW 22, the IO, has deposed

19

that the appellants have confessed to raping and murdering the victim

girl.Despite this alleged confession, the police did not produce the

appellants for recording such confession under Section 164 of the CrPC.

Other prosecution witnesses who deposed that the victim's disappearance

coincided with that of the appellants from the village were also not

examined under Section 164 of the CrPC.

65. When a prosecution case relies entirely on circumstantial evidence, the

IO must exercise greater vigilance than in cases supported by direct

eyewitness accounts. Thus when the Police rely on witnesses, who did not

witness the crime, the IO should definitely have their statements recorded

under Section 164 of the CrPC to ensure greater credibility.

c) The absence of the appellants coinciding with that of victim is at

best a suspicion and not a proof

66. The victim girl was missing from September 30

th

, 2012. The appellants

were also untraceable from that date. PW 10 and 11 have confirmed this

coincidence. They, however, clarified that they do not know the

circumstances under which the victim girl was raped and murdered.

PW-22, the IO, recorded the statements of PW-10 and PW-11 under

Section 161 of the CrPC, but did not send them for examination under

Section 164 of the CrPC.

67. Suspicion, no matter how strong, cannot replace proof. The absence of

the appellants from the village coinciding with the victim's disappearance

is at best an incomplete link in the chain. The chain remains incomplete

because the prosecution failed to establish that the appellants were

20

untraceable due to their involvement in the rape and murder of the

victim.

d) Section 27 does not render the evidence of PW 13 admissible.

68. PW 13 has deposed that the Police brought the appellants to the said

Supari Garden. The appellants pointed out the place where the victim

was raped and murdered thereat. This statement is irrelevant in the

context of Section 27 of the Indian Evidence Act, 1872, in view of the

decision in Perumal Raja v. State reported in 2024 SCC OnLine SC

12, wherein it was held as follows

22. However, we must clarify that Section 27 of the Evidence Act, as

held in these judgments, does not lay down the principle that

discovery of a fact is to be equated to the object produced or

found. The discovery of the fact resulting in recovery of a physical

object exhibits knowledge or mental awareness of the person

accused of the offence as to the existence of the physical object

at the particular place. Accordingly, discovery of a fact

includes the object found, the place from which it was

produced and the knowledge of the accused as to its existence.

To this extent, therefore, factum of discovery combines both

the physical object as well as the mental consciousness of the

informant accused in relation thereto. In Mohmed

Inayatullah v. State of Maharashtra, elucidating on Section 27 of the

Evidence Act, it has been held that the first condition imposed and

necessary for bringing the section into operation is the discovery of a

fact which should be a relevant fact in consequence of information

received from a person accused of an offence. The second is that the

discovery of such a fact must be deposed to. A fact already known

to the police will fall foul and not meet this condition. The third

is that at the time of receipt of the information, the accused must be

in police custody. Lastly, it is only so much of information

which relates distinctly to the fact thereby discovered

resulting in recovery of a physical object which is admissible .

…….

Emphasis applied

69. Paragraph 22 of the Perumal Raja decision (supra) has held that

discovery of a physical object, under Section 27(supra), renders both the

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physical object, so recovered, and accused's mental awareness of the

said object’s location admissible. Thus, when no physical object is

recovered, mental awareness of the accused thereof cannot be inferred.

70. No incriminating material was recovered from the said PO. Further, the

evidence of PW-13 that the accused pointed out the PO to the police is

irrelevant since the PO was known to all concerned including the police

even before the accused could have pointed it out.

e) The medical evidence does not link the appellants with the crime.

71. The dead body of the victim showed advanced decomposition. PW 19 has

deposed that the estimated time of death was between 24 and 45 hours

prior to the PM examination. Physical force was applied to the victim

resulting in extensive tearing of the hymen, the fourchette, and deep

muscle tissue. Tears at the 5 and 7 o'clock positions of the vaginal opening

suggest significant force arising from non-consensual sexual penetration.

Additionally, localized congestion indicates a severe reaction to

considerable tissue trauma.

72. The medical evidence thus has clearly established that the victim was

raped and murdered. The physical samples including scalp hair, nail

scrapings, vaginal swabs, and post-mortem blood of the victim were

collected and handed over to PW 22, the IO. They were never sent for

forensic examination. The medical evidence thus has not linked the

appellants with the rape and murder of the victim.

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73. When direct eyewitness accounts confirm the commission of crime by an

accused person, a forensic testing report is not strictly necessary. In

absence of direct eyewitnesses account in this case, comparing the physical

samples collected from the victim with that of the appellants was thus

crucial, necessary and essential.

f) The delay in registration of FIR in the instant case was a vital

unexplained omission.

74. The police were informed about the discovery of the body on the 2

nd

of

October 2012. The Inquest and Post Mortem were conducted against a UD

Case. It was only against a complaint lodged 9 days after the incident that

the police registered FIR on the 11

th

of October 2012. The police have not

explained the delay. In the facts of the case the attempt by the victim’s

family, PW-7-9 and the police to cook up a case against the appellants

cannot be ruled out.

g) Evidence on record does not point towards the guilt of the

appellants

75. The evidence on record does not invariably point towards the guilt of the

appellants for the following reasons

A) The appellants lived in the same village as the victim girl, and

both went missing on the same day, September 30, 2012.

B) PW-7 initially deposed during his examination-in-chief that he

saw the appellant at the PO after coming out from his house

upon hearing a shout. However, during cross-examination,

PW-7 deposed that he did not come out of his house after

hearing the shout.

23

C) PW 7 deposed that he discovered the dead body of the victim

in the morning of October 1

st, 2012. He, however did not

inform any other PWs. The victim’s dead body was discovered

on October 2

nd, 2012 by the other PWs.

D) PW 8 saw the appellants forcibly dragging the victim with

them on the road. He however did not intervene. He did not

inform anybody of the same.

E) The evidence of PW 7 claiming to have seen the appellants at

the PO and PW 8 claiming to have seen them forcibly dragging

the victim were thus not proven at all.

F) PW-9 deposed that the appellants reached his house, stayed

for five to six days, sold him a mobile set, and stated they

were leaving for Delhi. PW-9 purchased and had the appellant

Samir’s mobile set, making it easy for the police to trace out

PW-9 and ascertain the appellant's whereabouts. This is

highly improbable for accused persons to do, who have raped

and murdered a girl suffering from epilepsy.

G) Although medical evidence has established that the victim was

raped and murdered, the wearing apparel and other physical

materials of the victim were not sent for forensic examination.

This would have revealed whether the appellants are

connected with the victim's death.

H) Even assuming that these events were proven, the appellants

could not be convicted. The PO was accessible to the public,

there was no eye-witness. The physical evidence from the

24

victim's body was not sent for FSL. There is no evidence to

link the appellants to the crime. Therefore, even treating the

prosecution witnesses as reliable, guilt cannot be inferred.

I) The appellants' disappearance is not inherently incriminating.

The prosecution has failed to link such disappearance to the

crime in question.

76. While a faint suspicion may arise against the appellants, suspicion

cannot take the place of legal proof. The appellants are, thus, acquitted

on benefit of the doubt. The impugned judgment of conviction dated

February 28th, 2017, and order of sentence dated March 1st, 2017, is

set aside. CRA 259 of 2017 is allowed. The appellants shall be set at

liberty forthwith.

77. The appellants, if on bail, such bail bonds shall be discharged. If not

so, the appellants shall be set at liberty immediately, if not required in

any other case, upon execution of bonds under Section 437A of CRPC,

corresponding to Section 481 of the BNSS, 2023.

78. Let a copy of this judgment and the Trial Court Records be sent to the

trial court at once.

79. Urgent certified copy of this judgment, if applied for, shall be made

available to the parties upon compliance with due formalities.

(Rajasekhar Mantha, J.)

I agree.

(Anuj Singh, J.)