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CASE NO.:

Appeal (crl.) 1034-1035 of 2000

PETITIONER:

GANESH LAL

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 31/10/2001

BENCH:

R.C. Lahoti & Ashok Bhan

JUDGMENT:

R.C. Lahoti, J.

G a young child of 11 years, daughter of PW6, the father and

PW7, the mother, resident of a village within the limits of P.S.

Shambhupura, Distt. Chittorgarh had gone to fetch fodder from the

filed of theirs at about 4 p.m. on 2.9.1992. She did not return back to

home until 7 p.m. whereupon an extensive search was launched by the

parents, associated with the villagers, who made inquiries not only in

the village but also in nearby villages but without any result. Mohan

Lal and Chhagan Lal, PW16 and PW23 found the dead body of the

missing girl in the field of Udai Lal at about 7 a.m. on 3.9.1992. Udai

Lals field is situated near the field of PW6. They informed the

villagers whereupon they assembled in the field of Udai Lal. The

dead body was in a bad shape. The neck was broken. There were

marks of injury on the neck which appeared to have been twisted.

Blood was oozing out from neck and private parts of the body. Her

both legs were chopped off from near the ankles and were lying

separated near the body. The kuralias (silver ornament worn by girls

in the villages) which the deceased used to wear, one in each leg, were

missing. The dead body and the chopped off legs were picked up from

the field and brought to home. Bhanwar Lal, PW5, was sent to police

station to lodge an F.I.R. of the incident. The investigation

commenced. Ghaghara (a garment worn by girls on the lower part of

the body) which the deceased was wearing, was found to be stained

with blood oozing out from vagina and was seized. Post mortem was

conducted. According to the facts found and the opinion based

thereon, the girl was raped and then killed by throttling. The neck of

the deceased was pressed with thumb and fingers. Thumb and finger

marks could be visibly seen on the neck. The death was caused by

asphyxia. The legs were separated from the body after her death by

chopping off with a sharp edged weapon.

The accused was arrested shortly after midnight of 3rd and 4th

September, 1992. The investigation pointed out to his involvement in

the crime. He was challaned and put up for trial. The trial Court held

the accused guilty of the offences punishable under Sections

376(2)(f), 302 and 404, IPC. The accused was sentenced to 10 years

rigorous imprisonment and fine of Rs.100/-, in default to undergo

additional R.I. for 3 months under Section 376(2)(f), to life

imprisonment and fine of Rs.100/-, in default to undergo additional

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R.I. for 3 months under Section 302 and to 2 years R.I. and fine of

Rs.100/-, in default to undergo additional 3 months R.I. under Section

404, IPC. The Division Bench of the High Court has maintained the

conviction recorded and sentences passed by the trial Court

dismissing the appeal preferred by the accused. This appeal has been

preferred by special leave.

A perusal of the judgment of the trial Court and of the High

Court shows the following pieces of incriminating circumstantial

evidence having been found proved so as to hold the accused guilty of

the offences charged:-

i) Recovery, on the information given by the accused and on his

pointing out and producing, of kuralias belonging to the

deceased and which she was wearing on the date of the

occurrence;

ii) recovery of axe, stained with human blood, on information

given by the accused;

iii) presence of human blood and semen stains on the chaddi

(longish underwear) of the accused;

iv) presence of marks of injury (two abrasions) on his person; and

v) presence of blood stains on dhoti, baniyan and bush-shirt of

accused.

The accused was arrested at 2 a.m., i.e. in the wee hours of

4.9.1992. Soon on his arrest he gave information that an axe and two

silver kuralias were kept in the south-east corner of the field of

victims father and he could point out the places. Pursuant to the

information so given, the accused led the police, accompanied by

Panch witnesses, to the field of father of the deceased girl in the early

hours of the same day. The accused took out a polythene bag,

containing two kuralias, which was lying hidden in the groundnut

crop standing in the field. From another place, at a little distance from

the place wherefrom the kuralias were recovered, the accused took out

and produced an axe which was lying hidden below some grass and

groundnut crop. The axe was smudged with mud. Some shreds of

flesh and fat, pieces of bone and blood were also found sticking on the

axe. All these articles recovered were seized, packed at the place of

the seizure, brought to the police station and then sealed in the

presence of the witnesses. The accused also pointed out the place of

the occurrence whereat a dantli (sickle used for cutting grass) was

found lying.

The accused also gave information about his clothes kept in his

residential house concealed in a kothi(an earthen pot used for storing

foodgrains) and then led the police to his house. From the kothi he

took out a few clothes bundled up in a piece of cloth. On opening the

bundle came out a dhoti, a bush-shirt, a chaddi (a longish underwear,

tailor made, from striped cloth, and not necessarily worn as an

underwear only) and a baniyan. These clothes had mud-stains on

them. All the four clothes were found to have stains on them which,

in the opinion of the investigating officer and the Panch witnesses,

were blood stains. The chaddi had a few white stains which appeared

to be of human semen. All the clothes were seized.

The seized kuralias were promptly put up for test identification

parade conducted by Prayagchand Verma, PW10, Addl. Chief Judicial

Magistrate. They were satisfactorily identified by the parents of the

deceased as the kuralias which the deceased girl used to wear usually

and were also worn by her on the date of the incident.

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All the seized articles were sent to Forensic Science Laboratory

Rajasthan, Jaipur. The blood smeared soil seized from the place of

the incident, the ghaghra seized from the body of the deceased,

kulhari recovered on pointing out by the accused and the four pieces

of clothes, namely dhoti, chaddi, baniyan and bush-shirt seized on

being produced by the accused from his house, were all found to be

stained with human blood although grouping could not be carried out

because of the blood having disintegrated. The Forensic Science

Laboratory also detected human semen on ghaghra seized from the

body of the victim and the chaddi produced by the accused.

So far as the several recoveries are concerned, the statement of

investigating officer is corroborated by the testimony of Panch

witnesses who are respectable residents of the same village in which

the families of the victim and the accused also reside. There is no

reason to disbelieve the evidence of recovery and seizure. The Panch

witnesses have deposed that although kuralias, axe and dantli having

been seized from the respective places whereat they were found, were

cautiously packed and fully covered with the help of paper, cloth and

thread at the place of the seizure, the seals thereon were affixed at the

police station. It was rainy season. It had also rained on that night.

The fields were wet and had water clogging at places. The recovery

and seizure had taken place in the wee hours and the only means of

light available was a torch carried by the police. In such situation,

merely because the articles were not sealed at the places of seizure but

were sealed at the police station, the recovery and seizure do not

become doubtful. There is no suggestion that any of the seized items

were so tampered with as to implant thereon any piece of

incriminating evidence which was not otherwise available on the

seized articles.

The kuralias recovered at the instance of the accused and on his

pointing out were placed, before recovery, in such a way that they

could not have been visible to anyone else unless pointed out and

produced by the accused and therefore exclusive knowledge of

concealment of kuralias should be attributed to the accused. So is the

case with the axe. Kuralias were satisfactorily identified by the

parents of the victim girl at the test identification parade and also in

the Court. The father and the mother both stated that the kuralias

were those which the deceased used to wear and was wearing on the

date of occurrence also. There is no reason to doubt the testimony of

the two parents who in the ordinary course of things must have seen

their daughter wearing the kuralias for several days and therefore they

are the best persons who could have identified those articles. There is

nothing in the cross examination of the two witnesses to doubt

veracity of their identification of kuralias.

The axe was found to be stained with human blood. The four

pieces of clothes recovered from the house of the accused on his

pointing out are accompanied by such unusual circumstances which

are also incriminating. The four items of clothes were bundled

together, wrapped in another piece of cloth and then kept in a kothi

(an earthen pot used for storing foodgrains in house) which is not the

ordinary and usual way of keeping usable clothes. Ratan Lal PW8,

resident of the same village and who knew the accused too well,

stated that the clothes were of the accused as he had seen the accused

often wearing those clothes. The clothes, at the time of seizure, were

found to be stained with mud. They were also found to be stained

with human blood. The chaddi was stained with human semen.

According to Dal Chand PW18, the accused was a bachelor. On

5.9.1992, the accused was sent up for medico-legal examination. He

was examined by Dr. Subhas Jain, PW9 at 1.45 p.m. on 5.9.1992.

There were two abrasions situated on his left shoulder and back of left

elbow, each of the dimension of 1 x 1/10 and could have been

caused by any blunt object. The two abrasions, looking to their

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situation and nature, could have been caused by coming in contact

with the rough surface of the earth or by scratching. The accused was

found to be potent and capable of performing sexual intercourse

though there was no external injury on or around his private parts.

In the late afternoon of the day preceding the day on which

dead-body of the victim girl was found, a few villagers about 4 in

number including Mangilal, PW2 and Kani Ram, PW24 happened to

be together in the field of Mahender Singh which was under

cultivation of Mangilal, PW2 who had sown Soyabin crop therein.

There the accused came. They had puff of bidi (country-cigarette

made of Tendu leaves) for a few minutes whereafter these villagers

had left leaving the accused-appellant behind there itself. Mangilal,

PW2 had seen a young girl of the height of about 3 feet being given a

dantli (sickle) by the accused. The girl had moved towards the field

of her father. Mangilal saw the accused also going in that direction.

However, the girl could not be identified by Mangilal because of

distance in between. A sickle was found lying near the place which

was identified to be the place of the incident where the victim girl was

raped. The field of the father of the victim girl, the field of Dalchand,

PW18 whose land was taken by the father of the accused for

cultivation on sharing basis and the field of Mahender Singh under

cultivation of Mangilal, PW2 are situated almost adjoining each other

as per the site plan.

Section 114 of the Evidence Act provides that the Court may

presume the existence of any fact which it thinks likely to have

happened, regard being had to the common course of natural events,

human conduct and public and private business, in their relation to

facts of the particular case. Illustration (a) provides that a man who is

in possession of stolen goods soon after the theft may be presumed by

the Court to be either the thief or one who has received the goods

knowing them to be stolen, unless he can account for his possession.

The presumption so raised is one of fact rather than of law. In the

facts and circumstances of a given case relying on the strength of the

presumption the Court may dispense with direct proof of certain such

facts as can be safely presumed to be necessarily existing by applying

the logic and wisdom underlying Section 114. Where offences, more

than one, have taken place as part of one transaction, recent and

unexplained possession of property belonging to deceased may enable

a presumption being raised against the accused that he is guilty not

only of the offence of theft or dacoity but also of other offences

forming part of that transaction.

In Baiju Vs. State of M.P., (1978) 1 SCC 588, Earabhadrappa

Vs. State of Karnataka (1983) 2 SCC 330, Gulab Chand Vs. State of

M.P. (1995) 3 SCC 574, Mukund @ Mishra & Anr. Vs. State of

Madhya Pradesh - AIR 1997 SC 2622 and A. Devendran Vs. State of

T.N., (1997) 11 SCC 720, para 20, murder and robbery were proved

to have been integral parts of one and the same transaction and the

presumption arising under illustration (a) to Section 114 of the

Evidence Act was applied for holding the accused guilty of not only

having committed robbery but also murder of the deceased. The

presumption was founded on recovery of stolen property belonging to

the deceased.

While raising such presumption the time factor between the

date of the offence and recovery of stolen property from the

possession of the accused would play a significant role. Precaution

has to be taken that the presumption may not be so stretched as to

permit suspicion taking the place of proof. No hard and fast rule can

be laid down.

A review of several decisions of this Court, some of which we

have cited hereinabove, leads to the following statement of law.

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Recovery of stolen property from the possession of accused enables a

presumption as to commission of offence other than theft or dacoity

being drawn against the accused so as to hold him a perpetrator of

such other offences on the following tests being satisfied: (i) The

offence of criminal misappropriation, theft or dacoity relating to the

articles recovered from the possession of the accused and such other

offences can reasonably be held to have been committed as an integral

part of the same transaction; (ii) the time-lag between the date of

commission of the offence and the date of recovery of articles from

the accused is not so wide as to snap the link between recovery and

commission of the offence; (iii) availability of some piece of

incriminating evidence or circumstance, other than mere recovery of

the articles, connecting the accused with such other offence; (iv)

caution on the part of the Court to see that suspicion, howsoever

strong, does not take the place of proof. In such cases the explanation

offered by the accused for his possession of the stolen property

assumes significance. Ordinarily the purpose of Section 313 of Code

of Criminal Procedure is to afford the accused an opportunity of

offering an explanation of incriminating circumstances appearing in

prosecution evidence against him. It is not necessary for the accused

to speak and explain. However, when the case rests on circumstantial

evidence the failure of the accused to offer any satisfactory

explanation for his possession of the stolen property though not an

incriminating circumstance by itself would yet enable an inference

being raised against him because the fact being in the exclusive

knowledge of the accused it was for him to have offered an

explanation which he failed to do. (See Earabhadrappa Vs. State of

Karnataka, para 13 (supra), Gulab Chand Vs. State of M.P., para 4

(supra).

In State of Maharashtra Vs. Suresh (2000) 1 SCC 471 a

female child of tender years was raped and murdered. Case against

the accused rested on circumstantial evidence. The accused when

arrested was found to have injuries on his person and blood and semen

on under-clothes. There were several other incriminating

circumstances pointing to the guilt of accused and this one, mentioned

just before, termed by this Court in its judgment as most formidable

incriminating circumstance was put to the accused but he could not

give any explanation whatsoever and instead chose to deny the

existence thereof. This Court held that a false answer offered by the

accused on his attention being drawn to such circumstance renders the

circumstance capable of inculpating him. The Court went on to say

that in a situation like this such a false answer can also be counted as

providing a missing link for completing the chain of circumstantial

evidence.

In Shivappa Vs. State of Mysore (1970) 1 SCC 487 this

Court set out a little different line of logical thinking, for a judge of

facts, by stating that if there was other evidence to connect an accused

with the crime itself, however small, the finding of stolen property

with him is a piece of evidence which connects him further with the

crime; there is then no question of presumption; the evidence

strengthens the other evidence already against him. It is only when

the accused cannot be connected with the crime except by reason of

possession of the fruits of crime that the presumption may be drawn.

In A. Devendran Vs. State of T.N. (1997) 1 SCC 720 this

Court emphasized the need of taking into consideration, in arriving at

a decision, the factors such as the nature of stolen articles, the nature

of their identification by the owner, the place and the circumstances of

recovery, the intervening period between the date of occurrence and

the date of recovery and the explanation of person from whom the

recovery is made.

In the case at hand a little before the probable time of

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commission of the crime the accused was seen near the place of

occurrence. We should not be misunderstood as holding the evidence

of availability of the accused near the place of occurrence and his

passing on a dantli (sickle) to a young girl-child as evidence of last

seen together. We are only holding the presence of the accused near

the place of occurrence a little before the time thereof and his having

seen the likely victim of the crime thereat. The recovery of kuralias

worn by the deceased was made at the instance of the accused and

there is a time-lag of just 2 days between the offence and the recovery.

An axe was recovered on an information given by the accused which

is found to be stained with human blood on examination by forensic

science laboratory. The axe had mud, pieces of bone and shreds of

flesh and fat on it at the time of recovery, as deposed to by the

witnesses and perception of which facts needs no expertise. Clothes

of the accused were recovered on being produced by him from his

house. The four clothes were bundled up in a piece of cloth and kept

hidden in an earthen pot. The manner in which the clothes were kept

is not one in which the wearing apparels are ordinarily kept in the

house. All these clothes were found to be stained with mud and

human blood. The chaddi (underwear) was having stains of blood and

semen __ both. The accused is a bachelor. He had two injuries on his

person which could have been caused at or about the time of

occurrence. The nature of the injuries was such that they could have

been caused either by the scratches of the victim resisting the act of

the accused or by the accused coming in contact with rough surface of

the ground in the course of commission of the crime. All these

circumstances were put to the accused. His only answer to all such

circumstances is Galat Hai(i.e., it is false or incorrect). The fact

remains that the accused failed to offer any explanation of such

circumstances and therefore they can be used as inculpatory

circumstances against him and the necessary inferences flowing

therefrom used as links in chain of incriminating circumstantial

evidence fastening guilt on him. The medical evidence shows that the

victim girl was raped, her neck was twisted and she was throttled to

kill her. On her death the two legs were chopped off and the kuralias

worn by her were removed. The accused was in recent unexplained

possession of kuralias. These several criminal acts __ rape, killing and

theft __ were committed in one transaction. The availability of the

abovesaid pieces of incriminating circumstantial evidence and their

having remained totally unexplained forge a complete chain of

incriminating circumstantial evidence so as to fasten guilt upon the

accused beyond any reasonable doubt. The silence of the accused

supplies the missing link, if any, as held by this Court in the case of

State of Maharashtra Vs. Suresh (supra). It is not only the recovery

of stolen property but also availability of other strong circumstances

which have fastened inescapable connectivity of the accused with the

offences charged.

For the foregoing reasons we do not find any case having been

made out for interference with the judgment of the High Court,

confirming the finding of guilty recorded by the Trial Court for the

several offences for which the accused was charged and the sentences

passed thereon. The appeal is dismissed.

We would like to place on record our appreciation of very able

assistance rendered to Court by Shri Seeraj Bagga, Advocate, who

appeared amicus curiae for the appellant.

. . . . . . . . . . . . . . . . . . . . . . . . .J.

( R.C. Lahoti )

. . . . . . . . . . . . . . . . . . . . . . . . .J.

( Ashok Bhan )

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October 31, 2001