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PETITIONER: SHANKARLAL GYARASILAL DIXIT

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT17/12/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR  765            1981 SCR  (2) 384  1981 SCC  (2)  35  CITATOR INFO :  R          1984 SC1622  (156,159,161,173)

ACT:      Evidence-Circumstantial evidence-Tests  to  be  applied while evaluating circumstantial evidence-Falsity of defence- If could take the place of proof of facts- "Shadow of doubt" meaning of.

HEADNOTE:      The prosecution alleged that when the deceased girl did not return  home for  quite some  time from play her mother, alongwith two  neighbouring women  went in  search  of  her. Believing that  she might  be in the appellant’s house. they repeatedly knocked at the door which was locked from inside, but there was no response from within. At that moment P.W. 5 who lived  next to  the appellant’s  house, arrived  on  the scene. P.W.  5 climbed  over the  roof of his house, entered the appellant’s house through the open court-yard and opened the front  door. On  entering the  house, according  to  the prosecution, the  three ladies  saw the appellant lying on a cot in  the court-yard with a cover pulled upto his face and the dead  body of  the child  in the bath room, wrapped in a blanket. The  mother lifted her dead child threw the blanket and ran  home with  the dead  body. The girl’s underpant was missing.      The dead  child had  injuries on  her  person  and  her private parts  were swollen.  Postmortem examination  of the dead body  showed that the vagina of the child was lacerated and her  hymen ruptured  and that death occurred as a result of asphyxia.  Examination of the appellant showed that there was a  mark of  dry semen  on his  underpant  and  marks  of bruises over  his left thigh. There was no smegma around the corona glandis  and there was a small abrasion over the base of his glans-penis which had a bluish discolouration on it.      The appellant pleaded that he knew nothing of the crime and that he was falsely implicated in the murder.      The appellant  was convicted and sentenced for offences under sections 376 and 302 I.P.C. by the trial court and the conviction and  sentence had  been  confirmed  by  the  High Court.      Allowing the appeal,

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^      HELD :  In a  case of  circumstantial  evidence  it  is necessary for the Court to find whether the circumstances on which the prosecution relies are established by satisfactory evidence, often  described as  clear and  cogent and whether the circumstances  are of  such a nature as to exclude every other hypothesis  save the  one that the appellant is guilty of the  offences of which he is charged. In other words, the circumstances  have  to  be  of  such  a  nature  as  to  be consistent with  the sole  hypothesis that  the  accused  is guilty of the crime imputed to him. [390 B-C]      It is  not necessary  that in  every case  depending on circumstantial evidence,  the whole  of  the  law  governing cases of circumstantial evidence should be set 385 out  in   the  judgment.  Legal  principles  are  not  magic incantations.  Their   importance   lies   more   in   their application to a given set of facts than in their recital in the judgment.  The simple  expectation is  that the judgment must show  that the finding of guilt if any has been reached after a  proper and  careful evaluation  of circumstances in order to  determine whether  they are  compatible  with  any other reasonable hypothesis. [395D-E]      In the  instant case  the prosecution  story  that  the appellant was  not on  good terms  with his mother, brothers and wife,  that he was living alone in the house and that on the day  of occurrence  the young  school boys  who were his tenants were  not in  the house  and that, therefore, he was all alone  is proved.  That P.W.  5 climbed over the roof of his house,  entered the  appellant’s house  and  opened  the front door is also proved. [390H]      But it  is impossible  to say that the appellant was in the house  when P.W.  5 and  the three  ladies  entered  the house. None  of the  four persons made any attempt to elicit any information from the appellant about the presence of the dead body  in the  bath room  though  it  was  alleged  that everyone saw  him lying  on a cot in the court yard. Even if the ladies would not exchange a single word with him, P.W. 5 would have  instinctively enquired  from him  as to  how the dead body  of the  child was  lying in the bath room. P.W. 5 categorically stated  that he had no talk with the appellant at all.  His claim  that he  called out  to the appellant to open the  door but  that he  declined to  do so  was a clear improvement over  what he narrated to the police immediately after the incident. [392A-H]      Secondly the  girl’s father  did not inform the police, either when he went to the police station for the first time or when  he went  there a  second time  to record  the first information report,  that the  appellant was  present in the house when  the ladies  entered it. In the statement made to the police immediately after the incident all that he stated was  that   the  girl  had  died  a  mysterious  death.  The disclosure made  by him to police in his complaint leaves no manner of  doubt that  the appellant  was not present in his house at  the time  of the recovery of the dead body. In his cross-examination he admitted that his wife did not tell him that it was the appellant who killed their daughter and that the particular  portion in the F.I.R. in which it was stated that his wife had told him that their daughter was killed by the appellant was not correctly recorded. [393A-B]      Once the  crucial link  in the  chain of  circumstances that the  appellant was  in the  house at  the time when the dead body was discovered snaps the entire case would have to rest on slender tit bits. [394B]      The course  of contemporaneous  and  subsequent  events

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strengthens the  inference that the appellant was not in the house  when   the  dead  body  was  discovered.  The  police inspector who  visited the house for making the panchnama of the scene of the offence did not state whether the house was open or  locked when  he and  the punchas entered it. If the appellant’s complicity  in the crime was suspected, attempts would have  been made  to arrest  him immediately. It is not known as  to who  arrested him  and from  where and  in what circumstances. All  that was  stated was  that the appellant was produced before him in the course of the day. [393D-F]      It is improbable that the appellant would have kept the underpant of  the child under his pillow while escaping from the house. The discovery of a blood 386 stain on the appellant’s pant and of a dry stain of semen on his underpant  are circumstances far too feeble to establish that the  appellant raped  or murdered  the girl. Absence of smegma around  the  appellant’s  corona  glandis  would  not necessarily establish  that he  had a recent intercourse nor do  the  other  circumstances  like  bruises  on  the  thigh establish his  involvement in  the crime.  If the  girl  was raped she was raped without resistance. [394E-F]      The  argument   of  the   prosecution  that  the  total ignorance of  the incident pleaded by the appellant is false and would  itself furnish  a link in the chain of caution is without substance because falsity of defence cannot take the place of  proof  of  facts  which  the  prosecution  has  to establish in  order to  succeed. A false plea can at best be considered  as   an   additional   circumstance   if   other circumstances point unfailingly to the guilt of the accused. [395A-B]      The High  Court was  in error  in saying  that what the Court has  to consider  is whether  the cumulative effect of the circumstances  establishes  the  guilt  of  the  accused beyond the  "shadow of  doubt". "Shadow  of doubt"  even  in cases  which   depend  on   direct  evidence  is  shadow  of "reasonable’ doubt.  In its  practical application  the test which requires the exclusion of other alternative hypotheses is  far   more  rigorous  than  the  test  of  proof  beyond reasonable doubt.  Secondly, the High Court’s view that such a person  as the appellant could not be an asset to his wife and children  and for  that reason  should  be  awarded  the sentence  of   death  is   not  correct  because  unfaithful husbands, unchaste  wives and  unruly children  are not  for that reason  to be sentenced to death if they commit murders unconnected with  the state  of their  equation  with  their family and  friends. The  passing of  the sentence  of death must elicit the greatest concern and solicitude of the Judge because, that  is one  sentence which  cannot  be  recalled. [395F-G, 396H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 766 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 27/ 28-2-80 of the Bombay High Court (Nagpur Bench) in Criminal Appeal  No. 331/79  and confirmation  case No. 3 of 1979.      M. R.  Daga, R.  A. Gupta  and N.  P. Paliwal  for  the Appellant.      H. R. Khanna and M. N. Shroff, for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, C.  J. The appellant Shankarlal Gyarasilal

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Dixit who  is 30  years of age, was convicted by the learned Additional  Sessions   Judge,  Akola,   for  offences  under sections 376  and 302 of the Indian Penal Code on the charge that on  December 10,  1978 he  raped a  five year  old girl called Sunita  and thereafter  committed her  murder. He was sentenced to  rigorous imprisonment  for  7  years  for  the offence of  rape and to death for the offence of murder. The order of  conviction and sentence having been confirmed by a Division Bench of the 387 Bombay High  Court by  its judgment  dated  February  27-28, 1980, he has filed this appeal by special leave.      The appellant lives in a locality called Marwadipura in the town  of Karanja,  District Akola. His house is situated near a  temple called  Gopal Mandir, and a little beyond the temple is  a public  well. Ramrao  Wagh, the  father of  the deceased Sunita,  used to  reside in  a house near about the well.      On December  10, 1978  at about  10-30  a.m.,  Sunita’s mother Renukabai,  went to  the  well  for  fetching  water. Sunita accompanied  her. Renukabai  returned after  a little while but Sunita, who was playing with some children, stayed back. She  did not come home for quite some time and feeling concerned, Renukabai  went in  search of her. Unable to find the  girl,   she  went  back  to  her  house  and  told  her neighbours, Shilabai  Deo and Shobhabai Waghode, that Sunita was missing.  The three  ladies thereafter went in search of Sunita. Believing  that she  might  be  in  the  appellant’s house, they  knocked at  his door  repeatedly. The  door was bolted from inside but there was no response from within. As the ladies were running out of their guesses and patience, a teacher called Shrinarayan Sharma, who lived in a house next to the  appellant’s, arrived  on the  scene. Sharma  climbed over the  roof of  his house,  entered the appellant’s house through an  open courtyard  and opened  the front  door. The three ladies  thereafter  entered  the  house  when,  it  is alleged, they  saw the  appellant sleeping  on a  cot in the court-yard, with  a cover  pulled upto  his face. Sunita was lying still  and motionless  in the  bath-room, wrapped in a blanket. Renukabai  lifted her dead child, threw the blanket and ran home. Sunita’s underpant was missing.      Soon  thereafter,   Renukabai’s  husband   Ramrao  Wagh returned from  the bazar  at about  12-45 p.m.,  and learned from  her   that  Sunita’s   dead  body  was  found  in  the appellant’s house. Sunita had injuries on her person and her private parts  were  swollen.  Ramrao  went  to  the  police station and  informed the  police of the mysterious death of his daughter.  He returned  to his house with the police and after about  half an  hour, he  went  again  to  the  police station and  lodged the  First Information  Report  (Exhibit 11), on  the basis of which offences were registered against the appellant under sections 376 and 302 of the Penal Code.      P.S.I. Ramdas  Katke gave  directions for the arrest of the appellant,  held an  inquest on the dead body of Sunita, sent the  dead body  for post-mortem examination and went to the appellant’s house. From there, he seized a blood-stained tile of  the flooring  of a room and a blood-stained blanket which was lying in the bath-room. There was a 388 cot in the court-yard of the house and under a pillow, which was lying  on that  cot, was found a child’s underpant. That too was seized.      The appellant  was thereafter  arrested  and  on  being produced before  the investigating  officer, he was sent for medical examination.

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    Dr. S.  J. Santani,  Assistant Surgeon  of the  Karanja Municipal   Hospital,    who   performed   the   post-mortem examination on  the dead  body of  Sunita found six external injuries on  her person.  Her vagina  was lacerated  and her hymen  was   ruptured.  From   these  symptoms  Dr.  Santani concluded that  the girl was raped. From the other injuries, he concluded  that she  died of  asphyxia, probably  due  to tracheal compression.      Dr. Santani  examined the  appellant on the same day at 9-00 p.m.  The appellant  had put  on two full-pants, one on top of  the other.  His underpant  was suspected to bear the mark of  dried semen.  There were  marks of bruises over his left thigh,  there was  no smegma  around the corona glandis and there  was a  small abrasion over the base of his glans- penis which had a bluish discolouration on it.      The defence  of the appellant was one of simple denial. He stated  that he was falsely implicated in the case at the instance  of   his  brother,   mother  and   his   neighbour Shrinarayan Sharma.      There can  be no  doubt that the deceased Sunita died a homicidal death.  The post-mortem  report  prepared  by  Dr. Santani shows  that she had a contusion over the left cheek, a contusion  with soft  red bruise  and abrasions  over  the whole of  the anterior aspect of the neck, small bruises and abrasions over  the lips  and mouth,  an abrasion  over  the chest, an  abrasion over  the right  shoulder and an incised wound behind the right ear, below the mastoid process. These injuries, according  to Dr.  Santani, were sufficient in the ordinary course of nature to cause death.      There is  also no reason to doubt that Sunita was raped or at least attempted to be raped before being murdered. The evidence of  Dr. Santani shows that her vagina was lacerated and her  hymen was ruptured. These are strong indications of her  being  subjected  to  a  sexual  assault.  The  inquest panchanama shows  that her  vagina was swollen and a whitish fluid and  blood were  coming out  of it.  The  evidence  of Renukabai and  Shilabai that  Sunita’s underpant was missing points in the same direction.      The important question for determination is whether the appellant can  be held  guilty for  either or  both of these offences. There  is no  direct evidence,  in the sense of an eye-witness account, to connect the 389 appellant with  the crime.  The prosecution, however, relies on the  following circumstances  in order  to establish  the charges of rape and murder levelled against him :      (1)  The dead  body of Sunita was found in the house of           the appellant;      (2)  The appellant  was residing in the house all alone           at the relevant time;      (3)  Renukabai (PW  2), Shilabai  (PW 3)  and Shobhabai           knocked at the door of the appellant several times           and though  the door was bolted from inside, there           was no response from within;      (4)  Shrinarayan Sharma  (PW 5), a next-door neighbour,           climbed over the roof of his house and seeing that           the appellant  was sleeping on a cot in the court-           yard, he  called out for him. On hearing the call,           the appellant  turned his  side and  said that  he           would not open the door;      (5)  Shrinarayan Sharma  entered the  appellant’s house           and opened  the door whereupon Renukabai, Shilabai           and Shobhabai  went in.  They saw the dead body of           Sunita lying  in a  bath-room  and  the  appellant           sleeping on a cot in the courtyard of the house;

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    (6)  At the  time when  Sharma  and  the  three  ladies           entered the  house, no other person apart from the           appellant was in the house;      (7)  In  spite  of  the  all-round  commotion  and  the           discovery of  a dead  body  from  his  house,  the           appellant continued to lie unconcerned on the cot.           He expressed  no surprise,  indeed no  reaction at           all; nor  did he  challenge or ask any of the four           "intruders" as  to why  one of  them  entered  his           house from  the roof  and the  others rushed in to           look out for something;      (8)  Sunita’s underpant  was later found under a pillow           which was  lying on the cot on which the appellant           was sleeping;      (9)  A human  blood-stain of  B Group  was found on the           appellant’s pant.  Sunita’s blood  belonged  to  B           Group;      (10) A stain of semen was found on the underpant of the           appellant;      (11) There was  no smegma around the appellant’s corona           glandis; there  was a small abrasion over the base           of his 390           glans penis which had a bluish discolouration; and           there were bruises over his right thigh; and      (12) The plea  of the appellant that he knew nothing of           the crime  and that he was involved falsely at the           instance of  his mother, brother and the neighbour           Sharma is patently false.      Since this  is a case of circumstantial evidence, it is necessary to  find whether  the circumstances  on which  the prosecution relies are established by satisfactory evidence, often described  as ’clear and cogent’ and secondly, whether the circumstances  are of  such a nature as to exclude every other hypothesis  save the  one that the appellant is guilty of the  offences of which he is charged. In other words, the circumstances  have  to  be  of  such  a  nature  as  to  be consistent with  the sole  hypothesis that  the  accused  is guilty of the crime imputed to him.      There is  credible evidence  in support  of  the  first circumstance out  of the  12 circumstances enumerated above. The evidence  of Renukabai  (PW  2),  Shilabai  (PW  3)  and Shrinarayan Sharma  (PW 5) proves that when they entered the appellant’s house  they saw the dead body of Sunita lying in a bath-room  of the  house. The  dead body  was wrapped in a blanket which  Renukabai, the  mother of  Sunita,  discarded while removing  Sunita to  her own house. The blanket, which bore a  few stains  of human  blood was seized by the police from the  appellant’s house  when they  made a panchanama of the scene of offence.      As regards  the second  circumstance, the  evidence  of Navalkishore Dixit (PW 8), who is the younger brother of the appellant, shows that after the death of their father on May 1,1978, the  appellant started  picking up quarrels with the family members,  trying to  screw money  from them  for  his vices. He beat Navalkishore on November 30 and on December 7 he assaulted  their mother. On December 8, Navalkishore left the house  with the  mother and  they went  to live  with  a person called  Balkisan Banga.  Thus,  the  only  two  other members of  the family  who used  to live in the house along with the  appellant had  left the  house two days before the incident.  The  appellant’s  wife  and  their  children  had already started residing separately from him in the house of the wife’s father in the same town of Karanja.      A few  young village  boys who were residing at Karanja

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for their schooling were occupying a part of the appellant’s house as  his tenants.  But the  evidence of Shilabai (PW 3) who was  a tenant  of the  appellant in  another part of the house, shows  that the  boys  had  gone  to  their  village, Dapura, over the week-end. The incident happened 391 on December  10, 1978  which was  a Sunday.  Thus, there  is enough evidence  to show  that the  appellant was  living by himself in  his house on the date of the incident. The other members of  his family  had virtually  deserted him  and his school-boy tenants  had gone  to their  village which  was a short distance away from Karanja.      The evidence as regards the third circumstance may also safely be  accepted. Renukabai  (PW 2)  and Shilabai  (PW 3) knocked at  the appellant’s door repeatedly but the door was bolted from  inside and  there  was  no  response  to  their request that  the door  be opened.  Plainly, the  reason why Shrinarayan Sharma  (PW 5) had to climb over the roof of his house for  the purpose  of entering  the court-yard  of  the appellant’s house  was that  the ladies  were unable to make any headway.      A part  of the fourth circumstance is easy to accept as proved because there can be no doubt that Shrinarayan Sharma climbed over the roof of his adjoining house and entered the appellant’s house.  Shrinarayan Sharma  is a  cousin of  the appellant and his testimony on this part of the case accords with the broad probabilities of human affairs.      But though  it is  true that Shrinarayan Sharma climbed over the  roof of  his house for the purpose of entering the appellant’s house,  it seems  to us impossible to accept his claim that  he saw  the appellant  sleeping on  a cot in the court-yard, that  he called  out for him and that on hearing the call, the appellant merely turned his side and said that he  will   not  open   the  door.   That  takes  us  to  the consideration of  what we  consider to be the most important link  in   the  chain   of  circumstances   implicating  the appellant. The focal point of the case is that the appellant was present  in his  house while the dead body of Sunita was lying in  the bath-room.  A part of circumstance (4) and the 5th circumstance  relate to  the question  as to whether the appellant was  sleeping on  a cot  in the  court-yard of his house whilst  the dead body of Sunita was lying in the bath- room.      There are  several reasons  which make it impossible to believe that the appellant was in the house when Shrinarayan Sharma and  the three  ladies found  the dead body of Sunita after  entering   the  house.   It  is  incredible  that  if Shrinarayan Sharma  and the  ladies saw the appellant in the house, they  would not  exchange a single word with him. The dead body  was lying  close-by in a bath-room and any normal human  being   would  have  instinctively  inquired  of  the appellant as  to how  it was that the dead body was lying in his  house.  None  of  the  four  persons  who  entered  the appellant’s house  made any attempt whatsoever to elicit any information from him as to how Sunita came to 392 be lying  dead in the bath-room. It is alleged that everyone saw the  appellant sleeping  on a cot in the court-yard, but it is strange that none talked to him at all.      One can understand the ladies not having the courage to talk to  the appellant.  But it is difficult to believe that Shrinarayan Sharma,  a forty-five-year  old school  teacher, could also not dare so much as to ask the appellant, without making any  accusation against  him, as to how the dead body of the  girl came to be in the bath-room. Shrinarayan Sharma

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has made a categorical admission in his evidence that he had no talk  with the  appellant at  all.  In  fact,  as  stated earlier, the  claim of Shrinarayan Sharma that he called out to the  appellant and  that the appellant said that he would not open the door, seems to us a clear improvement over what he narrated to the police immediately after the incident. He did not  tell the  police anything  of the  kind.  When  his attention  was  drawn  to  this  significant  omission,  his explanation was that he could not say why the police did not record that  part of  his statement.  We have  no doubt that Shrinarayan Sharma did not tell the police during the course of his  statement, which  was recorded immediately after the incident, that  he called out for the appellant and that the appellant stated  that he  would not open the door. This was far too  important a  happening which the witness would have failed to disclose to the police.      Another  reason   for  rejecting   the  case   of   the prosecution that the appellant was present in the house when the dead  body of  Sunita was discovered is that when Ramrao Wagh, the  father of  Sunita, returned to his house from the bazzar at  about 12.30  p.m., he was neither informed by his wife Renukabai  nor by  any other  person that the appellant was present  in the  house when  Renukabai brought  back the dead body of Sunita from the appellant’s house. The admitted sequence of  events in  this behalf has an important bearing on this  central theme  of the case. Ramrao Wagh went to his house from  the bazzar and in pursuance of a disclosure made to him  by his  wife Renukabai,  he straightaway went to the police station.  The only  statement which  he made  at  the police station  was that  his daughter  Sunita  had  died  a mysterious death.  Nothing at  all was said by him regarding the presence  of the appellant in the house at the time when the dead  body of  Sunita was discovered. The statement made by Ramrao  Wagh to  the police  was evidently not reduced to writing, but  it is clear that Ramrao went back to the house along with  the police officers. He went again to the police station, when  the First Information Report, Exhibit 11, was recorded. It is surprising that even in the FIR, Ramrao Wagh did not say that the appellant was present in the house when Renukabai 393 and the  other persons  entered the  house and when the dead body of Sunita was discovered. All that Ramrao stated in the FIR was  that the appellant had killed his daughter in order that she  should not  cry while she was being raped. Surely, the FIR was recorded after Ramrao had learnt of the incident from his wife and a few others including Shrinarayan Sharma, Shilabai and Shobhabai. The disclosure made by Ramrao to the police in  his complaint  leaves no manner of doubt that the appellant was  not present  in his  house at  the time  when Sunita’s dead body was discovered.      The FIR  contains a  statement that  Renukabai had told Ramrao that the appellant had killed Sunita. Ramrao admitted in his  cross-examination that  Renukabai did  not tell  him anything of  the sort and that the particular portion of the FIR in  which it  is stated that Renukabai had told him that Sunita was  killed by Shankarlal was not correctly recorded. The up-shot of the matter is that when the FIR was recorded, no one  thought that  the appellant  was responsible for the violence which was done to Sunita.      The course  of contemporaneous  and  subsequent  events strengthens the  inference that the appellant was not in the house when  the dead  body of  Sunita was discovered. Ramrao went to  the police  station not  once but  twice, and it is reasonable to  expect that  if the appellant’s complicity in

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the crime  was stated or suspected, attempts would have been made immediately  to arrest  him. When PSI Katke went to the appellant’s house  for making the panchanama of the scene of offence, the  appellant was  evidently  not  in  the  house. According to  PSI Katke,  instructions were given by him for the arrest  of the appellant. But surprisingly, there is not one word  on the  record to  show as  to  who  arrested  the appellant and from where. All that the Investigating Officer has stated  in his evidence is that during the course of the day the  appellant was  produced before  him. This  passive- voice statement does not inspire confidence.      The up-shot  of the  matter is  that Shrinarayan Sharma did not  tell the police that he called out the appellant or that the  appellant replied  that he will not open the door. Secondly, Renukabai  did not  tell her  husband Ramrao  that when she  entered the  house of  the appellant and found the dead body  of Sunita  in the  bath-room, the  appellant  was present in  the house.  Thirdly, none  of the large group of persons who  were present  in the house of Ramrao disclosed, what was  certainly the  most significant circumstance, that the appellant  was sleeping in the court-yard while the dead body was  lying in  the bath-room  of his house. Finally, no attempt was  made immediately  after the  FIR was  lodged to have the appellant arrested and there is no 394 evidence on  the point  as to  who arrested him, from where, and in what circumstances.      As we  have stated  earlier, the  crucial link  in  the chain of  circumstances is  the presence of the appellant in his house  at the  time when  the dead  body of  Sunita  was discovered. Once that link snaps, the entire case would have to rest  on slender tit-bits here and there. This discussion disposes of  the second part of the 4th circumstance part of the 5th circumstance and circumstances (6) and (7).      The discovery  of Sunita’s under-pant, which is the 8th circumstance, is  also enveloped  in suspicion.  At the time when the under pant was discovered, the appellant was not in the house.  PSI Katke  has not  stated in his evidence as to whether the appellant’s house was open or locked when he and the panchas entered it. It is also difficult to believe that the appellant  would keep  the under-pant  under his  pillow while making  good his  escape from the house after the dead body of  Sunita was  taken away. We are inclined to the view that      Sunita’s under-pant was placed under the pillow as a part  of the  scheme to  involve the  appellant, first  by fixing that  he was  sleeping on the cot at the crucial time and then  by showing  that the  under-pant of  the girl  was found under  the very  pillow which  was lying on the cot on which the appellant was sleeping.      The discovery  of  a  blood  stain  of  the  ’B’  Group measuring 0.5 cm. in diameter on the appellant’s pant and of a dried  stain of  semen on his under-pant are circumstances far too  feeble to  establish that  the appellant  raped  or murdered Sunita. ’B’ Group is not an uncommon group of blood and no  effort was  made to exclude the possibility that the blood of  the appellant  belonged  to  the  same  group.  As regards the  dried stain  of semen on the appellant’s under- pant, he  was a  grown up  man of 30 years and no compelling inference can  arise that  the stain  was caused  during the course of the sexual assault committed by him on the girl.      It is  then said  that there  was no  smegma around the appellant’s corona glandis. That cannot by itself prove that he had  sexual  intercourse.  The  presence  of  smegma  may perhaps exclude the possibility of recent sexual intercourse but its  absence will  not necessarily  establish  that  the

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person has  had a  recent intercourse. A small abrasion over the base  of the  glans-penis and  its bluish discolouration are also  inconclusive circumstances.  Nor  indeed  can  the bruises on  the appellant’s  thigh establish his involvement in the  crime. If  the girl was raped, she was raped without resistance. She was five years of age.      The last  circumstance relied  on by the prosecution is that the  total ignorance  of the  incident pleaded  by  the appellant is false, and 395 would itself  furnish a  link in  the chain of causation. We have come  to the  conclusion that  the  appellant  was  not present in the house at the time when Sunita’s dead body was discovered. That  makes  it  impossible  to  hold  that  the appellant’s plea  is  false.  Besides,  falsity  of  defence cannot  take   the  place   of  proof  of  facts  which  the prosecution has  to establish  in order  to succeed. A false plea  can   at  best   be  considered   as   an   additional circumstance, if  other circumstances  point unfailingly  to the guilt of the accused.      It causes  us some surprise that the learned Additional Sessions Judge, Akola, who tried the case, has not shown any awareness of  the fundamental  principle which governs cases dependent solely  on circumstantial evidence. Nowhere in his judgment  has   the  learned   Judge  alluded,  directly  or indirectly,  to   the  principle   that   in   a   case   of circumstantial evidence,  the  circumstances  on  which  the prosecution  relies   must  be   consistent  with  the  sole hypothesis of  the guilt  of the  accused. It  is not  to be expected that  in every  case  depending  on  circumstantial evidence  the   whole  of   the  law   governing  cases   of circumstantial evidence  should be  set out in the judgment. Legal  principles  are  not  magic  incantations  and  their importance lies  more in their application to a given set of facts than  in their  recital in  the judgment.  The  simple expectation is  that the judgment must show that the finding of guilt,  if any,  has been  reached  after  a  proper  and careful evaluation  of circumstances  in order  to determine whether  they  are  compatible  with  any  other  reasonable hypothesis.      The High  Court, it  must be  said, has referred to the recent decisions  of this Court in Mahmood v. State of Uttar Pradesh and Chandmal v. State of Rajasthan in which the rule governing cases  of circumstantial  evidence is  reiterated. But, while  formulating its  own view  the High  Court, with respect, fell  into an  error  in  stating  the  true  legal position by  saying that  what the  Court has to consider is whether  the   cumulative  effect   of   the   circumstances establishes the  guilt of  the accused beyond the "shadow of doubt". In the first place, ’shadow of doubt’, even in cases which depend  on direct  evidence is  shadow of "reasonable" doubt. Secondly,  in its  practical  application,  the  test which requires the exclusion of other alternative hypothesis is  far   more  rigorous  than  the  test  of  proof  beyond reasonable doubt.      Our judgment  will raise  a legitimate  query:  If  the appellant was not present in his house at the material time, why then  did so many people conspire to involve him falsely ? The answer to such questions 396 is not  always easy  to give  in criminal  cases.  Different motives operate  on the  minds of  different persons  in the making of  unfounded accusations.  Besides, human  nature is too willing,  when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case. the dead body

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of a  tender girl,  raped and  throttled, was  found in  the appellant’s house  and,  instinctively,  everyone  drew  the inference that  the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead  body in  his own  house, why  would he continue to sleep a  few feet away from it and whether his house was not easily accessible  to  all  and  sundry,  as  shown  by  the resourceful Shrinarayan  Sharma. No  one would  even care to consider why  the appellant’s  name was not mentioned to the police until  quite late.  These are questions for the Court to consider.      The  folks   of  Karanja   had  a  grouse  against  the appellant. He  had made  a nuisance of himself to his family and friends,  neighbours and  tenants. The  small  world  of Karanja was  up in  arms against  him. He  had assaulted his mother and  brother a few days before the incident. He had a quarrel with  Shilabai, his  tenant, on  the very day of the incident. He  was an  idler and  had no means of livelihood. The description  of his clothes at the time of his arrest is an eloquent  commentary on  the way  of  his  life.  He  was wearing two  full pants,  one on top of another, not because he had  one too  many to  wear but  because, one  of the two pants was  torn at  awkward places  and he  had to  hide his shame. It  was torn  on both the hips as well as the centre. The left  leg of  the pant  was torn  over two  feet and the right leg over half a foot. The shirt on his person was torn all  over.   The  right   arm  of   the  shirt  was  hanging precariously by  the rest  of the torn portion of his shirt. The Karanja community must have heaved a sigh of relief that a person  who was  so good-for-nothing was ultimately in the hands of  law. Such  people have no partisans. But that does not mean that justice can be denied to them.      We may  mention in passing, though in the view which we are taking  it is  not relevant,  that while  confirming the sentence of  death imposed  on the appellant by the Sessions Court, the  High Court  even  took  into  consideration  the appellant’s relations  with the members of his family. After mentioning that  he had  beaten his  mother and  brother and that his wife was living separately from him, the High Court concluded:           "In our opinion, such a person could neither be an      asset to  his wife and children nor entitled to live in      the society." Unfaithful husbands,  unchaste wives and unruly children are not for  that reason to be sentenced to death if they commit murders uncon- 397 nected with  the state  of their  equation with their family and friends.  The passing  of the  sentence  of  death  must elicit the  greatest concern  and solicitude  of  the  Judge because, that is one sentence which cannot be recalled.      For reasons  aforesaid, we  allow the  appeal  and  set aside the  judgments of  the High  Court  and  the  Sessions Court. The  sentence of  death as also the sentence of seven years’ imprisonment imposed upon the appellant is set aside. We  acquit  the  appellant  and  direct  that  he  shall  be released. P.B.R.                                       Appeal allowed. 398