http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: JAHARLAL DAS

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT12/04/1991

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR 1388            1991 SCR  (2) 298  1991 SCC  (3)  27        JT 1991 (2)   264  1991 SCALE  (1)713

ACT:      Indian Penal Code, 1860: Section 302 and 376- Rape  and murder-    Criminal    trial-Death    penalty-Circumstantial evidence-Sufficiency  of evidence for conviction-Gravity  of offence cannot overweigh legal proof- Caution against basing conviction on suspicion-Court should ensure that conjectures and  suspicions  do  not  take the  place  of  legal  proof- Necessary conditions for circumstantial evidence as a  basis for conviction explained-Inquest Report-Purpose of.

HEADNOTE:      The  appellant was tried for rape and murder of a  girl aged  five  years.  The  entire  evidence  against  him  was circumstantial:  (a) the accused and the deceased were  last seen  together; (b) false explanation given by  the  accused regarding  the  whereabouts  of the  deceased;  (c)  alleged recovery of the dead body of the deceased at the instance of the accused and (d) presence of abrasions on the genital  of the accused as well as blood stains on his wearing  apparels and  nail clippings. Relying on the circumstantial  evidence the Trial Court convicted him under Sections 302 and 376 and sentenced  him to death for the offence of murder and  seven years  rigorous  imprisonment for the offence of  rape.  The High Court confirmed the conviction and the sentence awarded by the Trial Court. In appeal to this court it was contended on behalf of the appellant that the circumstantial  evidence is  wholly  insufficient  to bring home  the  guilt  of  the accused.      Allowing the appeal, this Court,      HELD:  1.  The  circumstantial  evidence  in  order  to sustain  the conviction must satisfy three  conditions;  (1) the circumstances from which an inference of guilt is sought to  be drawn, must be cogently and firmly established;  (ii) those  circumstances  should  be  of  a  definite   tendency nerringly  pointing towards the guilt of the accused;  (iii) the  circumstances, taken cumulatively, should form a  chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by  the accused  and none else, and it should also be incapable  of explanation  on any other hypothesis than that of the  guilt of the accused [303E-F].

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

                                                      299      Hanumant and Anr.v. The State of Madhya Pradesh, [1952] SCR  1090;  Reg  v.  Hodfe, [1838]  2  Lew.227;  Dharam  Das Wadhwani  v. State of Uttar Pradesh, [1974] S.C.R.  607  and Jagta v. State of Haryana, [1975] 1 SCR 165, referred to.      2.In   cases  depending  largely  upon   circumstantial evidence  there  is always a danger that the  conjecture  or suspicion  may  take  the  place of  legal  proof  and  such suspicion  however so strong cannot be allowed to  take  the place of proof. The Court has to be watchful and ensure that conjectures  and suspicions do not take the place  of  legal proof  for  sometimes unconsciously it may happen  to  be  a short  step between moral certainty and the legal proof.  At times  it can be case of ’may be true. But there is  a  long mental distance between ’may be true’ and ’must be true’ and the  same  divides conjectures from  sure  conclusions.  The Court must satisfy itself that the various circumstances  in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. [304-G, 309E-F]      3.In  the  instant  case  the  circumstance  that   the deceased was last seen in the company of the accused is  not established  beyond reasonable doubt. This circumstance  was not  mentioned  in  the  Inquest  Report  prepared  by   the Investigating Officer. Further the statement of the  parents of  the deceased that the accused took the deceased girl  by itself is not enough to conclude that the deceased was  last seen  in  the company of accused because even  according  to them   on being inquired the accused told them that  he  had sent the girl back in a truck. [308C, 305F]      3.1  The  prosecution has not conclusively  proved  the crucial circumstance of the recovery of the dead body of the deceased  girl at the instance of the accused. No  Panchnama was  prepared for such a discovery under Section 27  of  the Evidence  Act and there is no mention in the Inquest  Report as  to how the body was discovered. On the other hand  there is  any  amount  of doubt and suspicion  about  the  accused having  shown the place of occurrence. Once it is held  that the  crucial circumstances namely the discovery of the  body at the instance of the accused is not established, than  the other  circumstance are hardly sufficient to  establish  the guilt of the accused. [308B-C-D, 306B, 307C]      3.2  The explanation given by the accused that  he  sent the girl back to the village in a truck cannot be held to be not  plausible  and  therefore  false  because  it  is   not uncommon in villages for children to go about the fields and walk short distance while coming back to the village. [308E]                                                       300      3.3 The prosecution has also not established that  the accused  had  an intercourse on the day of  the  occurrence. When  the  doctor who examined the accused  stated  that  he could not find any sign of sexual intercourse atleast within one  hour  of his examination then it is only  a  matter  of conjectures as to when the accused had any intercourse.  The presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused  in any  manner with the alleged offences. The accused also  had given an explanation namely that his gums were bleeding  and in  wiping  out  the same he got these  blood  stains.  Even otherwise this circumstance coupled with the circumstance of last seen in the company of the accused would ;not amount to legal  proof  of  the guilt particularly  when  the  crucial circumstance namely that the accused showed the dead body is held to be not established. When such a main link goes,  the chain gets snapped and the other circumstances cannot in any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

manner  establish  the  guilt  of  the  accused  beyond  all reasonable  doubts.  Therefore there is a  reasonable  doubt about  the guilt of the accused and the benefit of the  same should go to him. Accordingly the conviction and sentence of the accused is set aside. [309B-C, F-G]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 276 of 1991.      From  the  Judgment and Order dated  16.7.1990  of  the Orissa  High  Court in Criminal Appeal No. 117 of  1990  And Death Reference No. 1 of 1990.      H.K. Puri (Amicus Curiae) for the Appellant.      A.D.  Giri,  Solicitor General and A.K. Panda  for  the Respondent. The Judgment of the Court was delivered by      K. JAYACHANDRA REDDY, J. Leave granted.      This is a case of death sentence. The fact that such  a sentence is awarded even in the year 1990 would  immediately suggest  that  the  offence involved should be  of  a  grave nature.  Yes, the offence is not only grave but heinous  and inhuman.      A  girl  aged  five  years was a  victim  of  rape  and thereafter  murder. The sole appellant before us was  tried, convicted and sentenced  to death by the Sessions Court  and confirmed by the High Court. It is a                                                        301 case  depending entirely on circumstantial evidence and  the obvious  contention is that the circumstantial  evidence  is wholly insufficient to bring home the guilt to the accused.      No doubt the offence is a shocking one but the  gravity of  the offence cannot by itself overweigh as far  as  legal proof  is concerned. Invariable in such cases a person  last seen   with   the  victim,  unless   otherwise   there   are circumstances  prima  facie exonerating him,  would  be  the prime  suspect  but in the  ultimate  judicial  adjudication suspicion,  howsoever strong, cannot be allowed to take  the place  of  proof.  With that caution in mind  we  shall  now proceed to examine the facts and circumstances as put forward and the various arguments advanced.      The deceased Disco alias Sukumari, a girl aged 5  years was the daughter of P. Ws 1 and 6, the father and the mother who  were  drummers  by  castes.  They  belong  to   village Badachatra,  an interior part of Mayurbhanj  District.  They had  three children and the deceased was the eldest. In  the year  1988  during  Kalipuja time the accused  who  was  the resident of Tulsibani village about one kilometre away, came to  the  house of P.Ws 1 and 6. He named  their  newly  born daughter.  He  took his meals in their house and  went  away saying  that  he would come  with the new  dresses  for  the newly  born  daughter. Next day i.e. on 9.11.88 he  came  to their  house  in the morning with new dresses. He  told  the parents  that he would take the deceased with him to  Bombay Chhak to get new dresses for the other two children. He took his  lunch  and  went with deceased  towards  Bombay  Chhak. Sometime after his departure P.W 6 told her husband P.W.1 to proceed  to  Bombay Chhak as the deceased might  be  crying. Accordingly  P.W.  1  accompanied by  one  Sambhu  proceeded towards that Chhak. On the way they met one Babuli and asked him  whether  he had seen the accused  and the  deceased  to which  he replied in the negative. P.W. 1 came back  to  the village  and sat in the shop of P.W. 2 who informed that  he had  seen  the  accused  going  towards  village   Tulsibani

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

alongwith the deceased. P.W. 1 and Sambhu then went to  that village  but could not find them there. Therefore they  went to  Jharpokharia  Police Station and gave a  report  to  the Officer-in-charge  P.W.11 stating that the deceased. P.W.  1 again went to the Tulshibani Village where a person informed him  that he has seen the accused going towards  his  house. P.W.  1 went there and enquired the accused. He told P.W.  1 that  the  deceased had gone back home but  P.W.  1,  caught hold  of  him but the accused squirmed away from  his  grip. P.W.  1,  however,  again caught him  and took  him  to  his Village and according to P.W. 1                                                       302 on being questioned the accused confessed to have raped  and committed murder of the deceased. The accused is alleged  to have  pointed the place where he had thrown the  dead  body, whereafter  P.W. 1 and others proceeded in  that  direction. P.W. 11 the Police Officer also came in a jeep and took  the accused  into custody, drew up F.I.R. and sent the  same  to the  Police Station for registration of a case. The  accused is  alleged to have led the Police party to the  spot  where the  dead body was lying. P.W. 11 found the  deceased  lying with  injuries  on her vagina and other parts. He  held  the inquest  in the presence of P.W. 4 and others and  sent  the dead  body  for  post-mortem. P.W.  7  conducted  the  post- mortem.  He  noticed abrasions all over the  body.  He  also found  one  bruise on the left side of the  forehead  and  a lacerated wound of 2.5 cm x 1 cm x muscle deep starting from the  posterior angle of vagina along the perinium  upto  the anus.  On  internal  examination  he  found  the   following injuries.          "(1)  Soft tissues and muscles below  the  external          injuries  to  the neck were  contused  with  extra-          vassation of blood into the soft tissues.           (2)  Heamatoma  under the scalp  corresponding  to          external injury No. 11.           (3) The hymen was torn and the floor of the vagina          i.e.,  vaginal channel was lacerated.  This  injury          corresponds to external injury No. 15."      The Doctor opined that all the injuries were antemortem and  homicidal  in  nature and cause of  death  was  due  to asphyxia and shock as a result of strangulation and also due to injuries to the vagina. He also opined that the  injuries on  the neck suggest that the deceased was  strangulated  by pressure of hands. So far injury to the vagina is concerned, he  was of the opinion that the same could have been  caused by  forcible penetration of a male organ. The  accused  also was examined on 10.11.88 itself by another  Doctor P.W 8 for some   abrasions   on   his  genital.   P.W.   8,   however, categorically stated that on examining the accused he  could not  find  any  recent  sign  of  sexual  intercourse.   The prosecution relied on some blood stains which were found  on his dhoti but the accused explained away by saying that they were  caused by the bleeding of his gums. The  accused  when examined  under Section 313 pleaded not guilty. He  however, admitted that he went to the house of P.W. 1 but denied  the rest of the case.                                                        303      The  trial court did not accept the P.W. 1, s  evidence regarding  the  extra-judicial confession alleged  to   have been  made  by  the accused. It held that  nobody  else  has mentioned  about  this extrajudicial confession and  at  any rate  it was supposed to have been made in the  presence  of the police. We have also examined the evidence of P.W. 1  as well as the evidence of the other witnesses. The trial court has  rightly  rejected  this part of  the  prosecution  case

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

regarding the alleged extra-judicial confession. As a matter of  fact  we  do not find anywhere  mentioned  that  such  a confession was made by the accused to P.W. 1 neither in  the F.I.R. nor in the evidence of other witnesses who were  also said  to have been present when the accused was  brought  to the village by P.W. 1. P.W. 6, who is no other than the wife of P.W. 1, did not even mention about it.      The   trial  court,  however,  relying  on  the   other circumstances  convicted the accused under Sections 302  and 376   I.P.C.   and  sentenced  him  to  death   subject   to confirmation by the High Court and for seven years’ rigorous imprisonment  for  the offence of rape.  The  sentences  are directed  to run concurrently. The High Court confirmed  the conviction and sentence awarded by the trial court.      As   already  mentioned  this  case  rests  purely   on circumstantial   evidence.  It  is  well-settled  that   the circumstantial  evidence in order to sustain the  conviction must  satisfy  three conditions; 1) the  circumstances  from which  an inference of guilt is sought to be drawn, must  be cogently  and  firmly established; ii)  those  circumstances should be of a definite tendency unerringly pointing towards the  guilt  of the accused; iii)  the  circumstances,  taken cumulatively, should form a chain so complete that there  is no  escape  from  the  conclusion  that  within  all   human probability the crime was committed by the accused and  none else, and it should also be incapable of explanation on  any other  hypothesis than that of the guilt of the accused.  In the  leading  case   Hanumant and Another v.  The  State  of Madhya Pradesh, [1952] SCR 1090 it is also cautioned thus:          "In  dealing with circumstantial evidence there  is          always the danger that conjecture or suspicion  may          take  the  place of legal proof.  It  is  therefore          right to remember that in cases where the  evidence          is  of a circumstantial nature,  the  circumstances          from  which the conclusion of guilt is to be  drawn          should  in the first instance be fully  established          and   all  the  facts  so  established  should   be          consistent only with the hypothesis of the guilt of          the accused. Again, the                                                        304          circumstances should be of a conclusive nature  and          tendency,  and  they should be such as  to  exclude          every hypothesis but the one proposed to be proved.          In  other words, there must be a chain of  evidence          so far complete as not leave any reasonable  ground          for  a conclusion consistent with the innocence  of          the  accused  and it must be such as to  show  that          within all human probability the act must have been          done by the accused."      Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to  the  Jury  in Reg v. Hodge, [1838] 2 Lew  227  which  is stated as under;          "The  mind was apt to take a pleasure  in  adapting          circumstances to one another and even in  straining          them  a little, if need be, to force them  to  form          parts   of  one  connected  whole;  and  the   more          ingenious  the  mind of the  individual,  the  more          likely  was it, considering such matter,  to  over-          reach  and  mislead itself, to supply  some  little          link that is wanting, to take for granted some fact          consistent with its previous theories and necessary          to render them complete."      In  Dharam  Das  Wadhwani v. State  of  Uttar  Pradesh, [1974] SCR 607 it was held that " unlike direct evidence the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

indirect  light  circumstances  may  throw  may  vary   from suspicion  to  certitude  and care must be  taken  to  avoid subjective  pitfalls  of exaggerating a  conjecture  into  a conviction. " In Jagta v. State of Haryana, [1975] 1 SCR 165 it  was held that "The circumstances that the accused  could not  give trustworthy explanation about the injuries on  his person  and  about  his  being  present  on  the  scene   of ;occurrence are hardly sufficient to warrant conviction."      It may not be necessary to refer to other decisions  of this  Court except to bear in mind a caution that  in  cases depending  largely  upon circumstantial  evidence  there  is always  a danger that the conjecture or suspicion  may  take the  place  of  legal proof and such  suspicion  however  so strong  cannot  be allowed to take the place of  proof.  The Court  has  to be watchful and ensure that  conjectures  and suspicions  do not take the place of legal proof. The  Court must satisfy that the various circumstances in the chain  of evidence   should  be  established  clearly  and  that   the completed  chain must be such as to rule  out  a  reasonable likelihood  of the innocence of the accused.  Bearing  these principles  in mind we shall now consider the  reasoning  of the  courts  below  in coming to  the  conclusion  that  the accused along has committed the offence.                                                        305      The trial court relied on the following circumstances:          "(a)  ’Last seen’ theory-that the accused  and  the          deceased were last seen together.          (b)   Conduct  of  the  accused-that  the   accused          attempted to flee away when he could be seen at his          village by P.W.1;          (c)  False explanation-the accused when  questioned          gave false explanation regarding the whereabout  of          the deceased;          (d)  Recovery of the dead body of the  deceased  on          the showing of the accused-That the accused pointed          out  the place where the dead body of the  deceased          was lying  inside a paddy field;          (e)  Presence of injury on the genital as  well  as          stains   of  blood  on  the  wearing  apparel   and          nailclippings of the accused."      The  evidence  of P.Ws 1, 2 and 6 are  relied  upon  in support  of the first circumstance namely that the  deceased was  last  seen in the company of the accused.  P.W.  1  the father  and  P.W. 6 the mother deposed that on  the  day  of occurrence  the  accused came to their house  and  took  the deceased  towards Bombay Chhak to purchase new clothes.  The accused only admitted to the extent namely that he had  been to their house and denied the rest of the prosecution  case. However, we shall accept the evidence of P.Ws 1 and 6 to the effect  that  the accused took the deceased on that  day  to Bombay Chhak. But that by itself  is not enough to  conclude that  the  deceased  was last seen in  the  company  of  the accused  because even according to them on  being  enquired, the accused told them that he sent the girl back in a truck. Even otherwise the distance between the two villages is  not much.  P.W. 2’s evidence, however, is relied upon  that  the deceased  was  going in the company of accused.  P.W.  2  is also  a  native of the same village to which P.Ws  1  and  6 belong.  He  deposed  that on a Wednesday  he  had  been  to village  pond to take his bath at about 12 noon  and   while returning  she  saw the accused going towards  east  with  a minor  girl aged about 5 years but P.W. 2 does not say  that the  deceased was in his company. He, however, proceeded  to depose  that  he  found P.W. 1 searching for  some  one  and thereupon  P.W. 2 told him that he has seen the accused with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

a minor girl going towards the paddy field. He admitted that did  not  know   whose daughter was in the  company  of  the accused. In the cross-                                                        306 examination he further admitted that he did not talk to  the accused.  No.  doubt  P.W. 2’s  evidence,  to  some  extent, corroborates the evidence of P.Ws 1 and 6 but  unfortunately even  at the stage of inquest this circumstance namely  that the  deceased was last seen in the company of  the  accused, was   not  noted. We will advert to this aspect at  a  later stage.  The  important  and   crucial  circumstance  heavily relied  upon by the prosecution is the alleged  recovery  of the dead body of the deceased on showing of the accused  and the accused pointed the place where the body of the deceased was  lying.  For this again the prosecution  relied  on  the evidence  of lP.Ws 1 and 11. Having carefully  gone  through the  evidence  of P.W. 1 we find that he  has  improved  his version  from  stage  to stage. As already  noted  both  the courts below were not prepared to place any reliance on  his evidence regarding the extra-judicial confession about which he  made  no  mention at any earlier stage. As  far  as  the recovery  of the body is concerned, P.W. 1  however  deposed that he managed to catch hold of the accused and brought him to  the village and that the police came in a jeep and  took the  accused  into custody. Then all of  them  went  towards paddy  field  which had been pointed by the accused  and  on search  they found the dead body. P.W. 11 the  Investigating Officer deposed at he went to village and found the  accused to  have been detained. He therefor prepared the F.R.I.  and sent  the  same  for  registration of  the  crime.  Then  he arrested  the  accused  and his evidence  and  his  evidence thereafter to put in his own words reads as under:          "The  accused pointed out the place where the  dead          body  of the deceased was lying and thereafter  led          me to the paddy field wherefrom I could recover the          dead body of the deceased Disco. As there were good          number  of persons present apprehending  danger  to          the  accused  I  sent him to  the  police  station.          During   course   of  investigation,   I   examined          witnesses, seized the dhoti (M.O. iii),Shirt  (M.O.          iv) and this chadi marked M.O.VII  from the accused          under  the seizure list already marked Ext. 3.  The          dead  body of the deceased was lying in  the  paddy          field where there were paddy plants which had  been          damaged and scattered. I held inquest over the dead          body of the deceased Disco in presence of witnesses          under  the inquest report already marked Ext. 1.  I          noticed  INJURIES on the vagina and other parts  of          the body of the deceased. After inquest I sent  the          dead body for P.M. examination through constables."                                                        307      According  to this evidence the accused is  alleged  to have taken P.W. 11 and others to the open paddy field  where the  dead  body was lying. It is only  thereafter  that  the inquest report was drawn up. However, P.W. 11 stated in  his evidence that before going to the paddy field the F.I.R. Ex. P.  10 was drawn up by him. Surprisingly we find  a  mention about  the discovery of the body in the F.I.R.  itself.  But the  same is not found in the inquest. There is not  even  a reference to the accused in the column No. 9 of the  inquest report  where the information of witness as to the cause  of death  has to be noticed. We are aware that the  purpose  of inquest report is  only to ascertain the cause of death  but in  a case of this nature there should have been  atleast  a mention  in  the  inquest  report as to  how  the  body  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

discovered. Apart from that usually a panchanama is prepared for  such a discovery made under Section 27 of the  Evidence Act  but strangely in this case there is no such  panchanama nor  there  is any other evidence of P.Ws 1 and 11.  P.W.  6 does not say anything about this aspect. As a matter of fact the trial court has noted the discrepancies in the  evidence of P.Ws 1 and 11 and it is observed as under:           "The  Investigating  Officer, P.W. 11  has  stated          something more about the find of the dead body.  He          speaks that the accused pointed out the place where          the  dead  body  of  the  deceased  was  lying  and          thereafter led him to the paddy field wherefrom the          dead  body  of the deceased   could  be  recovered.          Though  this  part of this evidence  has  not  been          supported  by P.W. 1,but from the evidence of  both          P.Ws 1 and 11 coupled with the evidence of P.W.4  I          am  persuaded  to hold that on the showing  of  the          accused,   the  dead  body  of  the  deceased   was          recovered from a paddy field."      We  have perused the evidence of P.W. 4.  His  evidence does  not  in  any manner incriminate the  accused.  P.W.  4 deposed  that the dead body of the deceased was found  lying in  paddy  field and that the police held inquest  over  the dead body in his presence and that the inquest report is  P. 1  in which he put his signature as a witness. Nothing  more is stated by him. He does not even refer to the presence  of the accused at the place where the dead body was found or at the time of inquest, which was held also there. P.W. 4  does not  in any manner help the prosecution case so far as  this circumstance  is  concerned.  If ready  the  body  has  been discovered at the instance of the accused there should  have been discovered at the instance of the accused there  should have  been a panchanama and a mention about the same in  the inquest  report. P.W. 11 categorically in his  evidence  has stated  that  after  sending  the  F.I.R.  the  accused  was questioned and the body was discovered there-                                                          308 after  at  the instance of the accused and the  inquest  was held  over the dead body and P.W. 4 was a panch witness   to the inquest and he also affixed his signature in the inquest report. But as mentioned above P.W. 4 does not say  anything about  the  accused being present anywhere  near  the  place where  the dead body was found nor there is a  reference  to the  accused in the inquest report. The only  two  remaining witnesses  P.Ws 1 and 11 namely the father of the  girl  and the  Investigating  Officer respectively  have  contradicted each  other.  That is the type of  evidence  regarding  this crucial circumstance. It  is highly dangerous to accept  the same  and  hold  that the dead body was  discovered  at  the instance   of   the  accused.  Having  given   our   careful consideration   we  are  of  the  firm  opinion   that   the prosecution   has   not   established   this    circumstance conclusively. On the other hand there is any amount of doubt and  suspicion about the accused having shown the  place  of occurrence.  We  may also point out at this stage  that  the circumstance that the deceased was last seen in the  company of  the  accused was not mentioned in  the  inquest  report. Therefore  the  first  circumstance  also  namely  that  the deceased was last seen in the company of the accused is  not established  beyond reasonable doubt. However, when once  it is  held that the crucial circumstance namely the  discovery of  the  body  at  the  instance  of  the  accused  is   not established,   then  the  other  circumstances  are   hardly sufficient to establish the guilt of the accused. The courts below  have  also  observed that the accused  gave  a  false

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

explanation.  According to the prosecution case the  accused is supposed to have stated to P.Ws 1 and 6 that he sent away the  deceased  in a truck. The courts below held  that  this explanation  is  false mainly on the  surmise that  a  minor girl could not have come back on her own in a truck. We  are not  convinced that on this surmise alone we can  hold  that the  accused  has  given  a false  explanation.  It  is  not uncommon in villages for children to go about the field  and walk  short distances while coming back to the  village.  In any event the accused had given an explanation that he  sent the girl back to the village in a truck and the same  cannot be held to be not plausible and therefore false.      Then  the  last circumstance relied upon  by the  courts below  is the presence of some abrasions on the  genital  of the  accused  and presence of stains blood  on  the  wearing apparels and nail clippings. The prosecution wanted to  show that  because of the  penetration the accused sustained  the abrasions on his penis. The Doctor, P.W.  8 who examined the accused has stated that he found only two pin-head  abrasion on  the genital of the accused and on examination he  opined that he could not find any recent sign of sexual intercourse and he also                                                        309 added  that  there was no such sign  of  having  intercourse within  one  hour  of his examination. However  to  a  court question, P.W 8 stated that as a result of forcible   sexual intercourse  those abrasions can be possible. We are  unable to see as to how this evidence, in any manner, is helpful to the  prosecution. When P.W. 8 stated that he  couldn’t  find any  sign of sexual intercourse atleast within one  hour  of his examination then it is only a mater of conjectures as to when the accused had any intercourse. The accused is a   man aged 57 years and it is not as if he was not used to  sexual intercourse.   In   any  event  the  prosecution   has   not established  that the accused had an intercourse on the  day of  the occurrence. Then the presence of blood in  the  nail clippings and on the underpant does not also incriminate and do   not connect the accused in any manner with the  alleged offences.  The accused also had given an explanation  namely that  his gums were bleeding and in wiping out the  same  he got  these  blood stains. Even otherwise  having  given  our earnest consideration, we are not able to say that this last circumstance  coupled with the circumstance of last seen  in the  company  of the accused amount to legal  proof  of  the guilt particularly when the crucial circumstance namely that the  accused  showed  the  dead  body  is  held  to  be  not established.  when  such a main link goes,  the  chain  gets snapped  and  the other circumstances cannot in  any  manner establish  the  guilt of the accused beyond  all  reasonable doubts.  It is at this juncture the Court has to be watchful          and  avoid the danger of allowing the suspicion  to          take  the  place  of  legal  proof  for   sometimes          unconsciously  it  may happen to be  a  short  step          between  moral  certainty and the legal  proof.  At          times it can be case of ’may be true’. But there is          a  long mental  distance between ’may be true’  and          ’must  be  true’ and the same  divides  conjectures          from  sure conclusions. The least that can be  said          in this case is that atleast there is a  reasonable          doubt   about  the  guilt of the  accused  and  the          benefit of the same should go to him.      We  are  conscious that a grave and heinous  crime  has been  committed but when there is ;no satisfactory proof  of the guilt we have no other option but to give the benefit of doubt   to  the accused and we are constrained to do  so  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

this   case.  Accordingly,  the  appeal  is   allowed.   The conviction  and sentence of the accused is set aside and  he shall  be  set at liberty forthwith if not required  in  any other case. T.N.A.                                      Appeal allowed.                                                       310