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CASE NO.: Appeal (crl.) 887  of  2000

PETITIONER: KANHAI MISHRA @ KANHAIYA MISAR

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       27/02/2001

BENCH: B.N.Agrawal, R.P.Sethi, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     B.N.  AGRAWAL,J.

     This  appeal  by  special  leave  has  been  preferred against  the judgment of Patna High Court confirming that of the sessions court whereby the appellant was convicted under Section  302 of the Indian Penal Code and sentenced to death and  to  pay  a  fine of Rs.   5000/-  inasmuch  as  further convicted  under  Section 376 of the Indian Penal  Code  and sentenced to undergo simple imprisonment for life and to pay a  fine  of Rs.  5000/-.  The prosecution case in  short  is that  on the morning of 27th July, 1995 at about 5 O  clock the appellant, who was co-villager of Ram Sunder Jha (PW.3), the  informant,  came to his house on the pretext of  taking tobacco  from  him.  At that time, the appellant  told  Rita Kumari, daughter of the informant, that there were plenty of flowers  in the orchard of Shobha Kant Mishra and asked  her to  go  with him to the said orchard stating that  he  would also  help  her in plucking flowers and in this way  enticed Rita Kumari for going to the said orchard.  Thereafter, Rita Kumari  went out of the house for plucking flowers  followed by  the appellant.  At 6 A.M., some of the co-villagers came to  the  house of the informant and intimated him that  dead body  of  his daughter, Rita Kumari, was lying in  the  jute field  of Prabhu Mishra whereupon he along with them and his family  members  went there and found his daughter lying  on the  ground and her red undergarment removed from one of her legs.   It  was  also noticed that there  were  white  spots resembling semen around her genital organ and black marks of scratches  around both sides of her neck.  The flower basket with flowers was found scattered there and her chappals were seen  at  some distance.  The informant and  his  companions having  felt  that Rita Kumari was unconscious,  lifted  and brought  her  to a nearby well belonging to one  Jai  Narain Mishra  where  water  was poured on her whereafter  only  it transpired  that she was already dead as she did not  regain consciousness.   The dead body of Rita Kumari was brought by the  informant  to his house.  Stating the aforesaid  facts, fard-beyan of the informant was recorded at his house by the

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Officer-in-charge  of Pratap Ganj Police Station on the same day  at  11  A.M.   wherein it was  also  alleged  that  the appellant  enticed her daughter, committed rape upon her and killed  her  by  pressing the neck.  During  the  trial  the prosecution  examined  10  witnesses  in all  to  prove  the circumstances against the appellant as undisputedly there is no  direct  evidence to show his complicity with the  crime. Upon  the  completion  of trial, the appellant  having  been convicted  by the trial court, as stated above, and the said conviction  having  been  confirmed by the High  Court,  the present  appeal  by  special  leave   is  before  us.    The circumstances  which  weighed with the two courts  below  in convicting  the  appellant may be enumerated hereunder:-  I. The appellant came to the house of the informant on the date of the occurrence at 5 Oclock in the morning on the pretext of  taking tobacco from him, met him and his daughter,  Rita Kumari,  enticed  her  to go to the orchard of  Shobha  Kant Mishra  for plucking flowers on Madhu Srawani day for  being used  by  elder  daughter of the informant,  who  was  newly married,  for performing puja.  II.  The appellant left  the house  of  the  informant  along with Rita  Kumari  for  the orchard.   III.  The appellant and the deceased-Rita  Kumari were seen going towards the orchard.  IV.  The appellant and the  deceased  were seen in the field of Shobha Kant  Mishra plucking  flowers.  V.  The appellant was seen fleeing  away in  the  vicinity  of the jute field immediately  after  the alleged  occurrence.   VI.   Immediately after  the  alleged occurrence,  the  appellant  absconded from  his  house  and surrendered in court only after about a month of the alleged occurrence.   It  is  a well established  rule  in  criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons conviction if it is of such  a character that the same is wholly inconsistent  with innocence  of  the accused and is consistent only  with  his guilt.   The  incriminating  circumstances  for  being  used against  the  accused  must  be such as to lead  only  to  a hypothesis of guilt and reasonably exclude every possibility of  innocence  of the accused.  In a case of  circumstantial evidence  the whole endeavour and effort of the court should be  to  find  out  whether the crime was  committed  by  the accused  and the circumstances proved form themselves into a complete  chain  unerringly  pointing to the  guilt  of  the accused.  If the circumstances proved against the accused in a  case  are  consistent either with the  innocence  of  the accused  or with his guilt, he is entitled to the benefit of doubt.   Reference  in  this  connection may be  made  to  a Constitution  Bench  judgment of this Court in the  case  of M.G.   Agarwal  vs.  State of Maharashtra, AIR 1963 SC  200, and  recent  decisions of this Court in the cases  of  Ronny Alias   Ronald   James  Alwaris  &  Ors.   vs.    State   of Maharashtra,  1998 (3) SCC 625 and Joseph S/o Kooveli  Poulo vs.   State of Kerala 2000 (5) SCC 197.  Keeping in mind the aforesaid  position  of law, the evidence, adduced to  prove the  circumstances used against the appellant which  weighed with  the  courts  below, has to be considered,  but  before considering the same, we feel it would be expedient to refer to   certain   important  aspects   which  would  make   the prosecution  case, showing complicity of the appellant  with the  crime,  highly doubtful.  Firstly, the informant   Ram Sunder   Jha  (PW.3)  stated  in   his  evidence  in   court unequivocally that he along with Indra Mohan Jha (PW.7) went to  the  Pratap  Ganj  Police   Station  and  narrated   the occurrence  before  the  Officer-in-charge   of  the  Police Station and thereafter they returned with him to the village where  in  the house of the informant the  Sub-Inspector  of

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Police      Chitta   Ranjan     Shit   (PW.10),   who   was Officer-in-charge  of  the  Police   Station,  recorded  his fard-beyan at 11 Oclock.  During the cross-examination, the witness stated that he arrived at the police station on that day  at  about 9 Oclock, stayed there for 10 to 20  minutes and  thereafter  returned to the village.  This witness  has nowhere  stated that he disclosed the name of the  appellant before  the  Officer-in-charge at the police station,  which was  the  first version of the occurrence unfolded  by  him. When  the witness had gone to the police station, we do  not find  any reason as to why fard-beyan was not recorded there at  9  Oclock  but recorded at the house of  the  informant after  two hours at 11 Oclock which goes to show that there was  inordinate  delay  in recording the  fard-beyan.   This further  shows that by the time informant was at the  police station  he did not suspect complicity of the appellant with the   crime  and  subsequently   after  due   deliberations, fard-beyan  was given by the informant at his house alleging therein  that  the appellant had complicity with the  crime. Thus the evidence of this witness makes the prosecution case showing complicity of the appellant with the crime doubtful. Secondly,  from the aforesaid statement of PW.3 it is  clear that  he went to the police station, narrated the occurrence to  the  Officer-in-charge (PW.10), who thereafter left  for the  village, but it appears that the Investigating  Officer (PW.10)  has suppressed this fact as in his evidence he  has come  out  with  a  case   that  he  received   confidential information  at the Police Station at 8.30 A.M.  on the date of  occurrence that someone had been murdered in the village of  occurrence  on the basis of which Sanaha entry No.   368 dated  27.7.1995  was entered at the Police Station  and  he proceeded  to the village to verify the information and this shows  that the prosecution case is suffering from the  vice of suppressio veri on material point.  Thirdly, according to the evidence of the informant (PW.3) he learnt for the first time between 6 A.M.  to 6.30 A.M.  on the date of occurrence at  his house from Palat Jha that the appellant had murdered his   daughter,   Rita  Kumari,  in   the  jute   field   by strangulation  and  her dead body was lying there.   Manjula Devi  (PW.9),  wife of the informant, has stated that  Palat Jha came to their house and informed that their daughter has been  murdered  after committing rape upon her and the  dead body  was  lying in the jute field.  PW.3 stated during  the cross-examination that on the date of occurrence he returned from  the police station along with PW.7 and Palat Jha which goes  to show that Palat Jha also accompanied the  informant to  the police station.  The First Information Report  shows that  fard-beyan was attested by two persons, namely,  Indra Mohan  Jha (PW.7) and Madhyanand Jha and PW.3 admitted  that Madhyanand  Jha  is  also  known as  Palat  Jha.   There  is absolutely  no evidence to show as to how Palat Jha came  to know  that  the  deceased  was raped  and  murdered  by  the appellant  by  strangulation and her dead body was lying  in the  jute  field.   If Palat Jha was an eye-witness  to  the occurrence,  he  was  the  most  material  witness  for  the prosecution.   Palat Jha has not been examined.  There is no material  to  show that he was interrogated by  the  police. The  prosecution  has  failed  to  furnish  any  explanation whatsoever  for  non-examination of Palat Jha, who  was  the most  material  witness  to  unfold  the  truth.   Thus  the aforesaid circumstances go to show that the prosecution case showing   complicity  of  the   appellant  with  the   crime intrinsically becomes unworthy of credence.  In the light of aforementioned  facts,  we  now   proceed  to  consider  the circumstances enumerated by the two courts below against the

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appellant  for convicting him.  The first circumstance  used against  the  appellant  has been proved  by  the  informant (PW.3) who stated in the First Information Report and in his subsequent  statement  made before the police as well as  in his evidence before the court that on the date of occurrence the  appellant  came  to  his house in the  morning  on  the pretext  of  taking  tobacco, met him and his  daughter  and enticed  her to go to the orchard of Shobha Kant Mishra  for plucking  flowers.   The  aforesaid statement  made  by  the informant  has  been  supported by his wife,  Manjula  Devi, (PW.9),  who  was  also present at the  time  the  appellant visited  their house in the morning.  The statements of PWs. 3  and  9 have been corroborated by Amar Nath Thakur  (PW.6) who  stated that at the place of occurrence when he arrived, PW.3  narrated him that in the morning the appellant came to his  house and gave a proposal to his daughter, Rita Kumari, for  going  to  the orchard for plucking  flowers.   Similar statement  has  been made by Indra Mohan Jha (PW.7).  We  do not  find  any  ground  to  reject  the  evidence  of  these witnesses   on   this  circumstance.   So  far   as   second circumstance  that the appellant along with Rita Kumari left her  house for the jute field is concerned, it may be stated that  there is variance in the prosecution case disclosed in the First Information Report and the statement of witnesses. According  to  First Information Report, Rita  Kumari  first left  her  house and the appellant went behind her, but  the informant  (PW.3) in his statement in court stated that  the appellant  first  left the house of the informant  and  went ahead  whereafter  Rita Kumari also left her house  for  the orchard.   PW.9,  wife  of the informant, in  her  statement stated that Rita Kumari left the house first, she went ahead and  was  followed  by the appellant.  PWs.  6  and  7  have stated  that  informant told them that Rita Kumari  and  the appellant  left  his  house together for  plucking  flowers. From the aforesaid evidence, it becomes clear that according to  the statement of PW.3 as disclosed by him before PWs.  6 and  7 the appellant and Rita Kumari left the house together whereas according to the First Information Report as well as the statement of PW.9, Rita Kumari went ahead and thereafter the  appellant left for the orchard.  None of the  witnesses examined  has  stated that they had seen the  appellant  and Rita  Kumari going together towards the orchard, rather  PW. 2  has  stated  that he had seen the appellant  alone  going towards  the orchard.  PW.6 stated that Shobha Kant, who has not been examined told him that he had seen Rita going alone towards  the orchard for plucking flowers.  The  discrepancy in the evidence whether Rita Kumari went ahead and appellant left  the house of the informant thereafter and whether they had  not  left the house of the informant together,  on  the facts  and  circumstances  of the case,  is  very  material, especially  in view of the fact that nobody had seen both of them going together towards the orchard and plucking flowers there,  more  so  when  Palat Jha,  who,  according  to  the informant,  was  the first person who informed him that  his daughter  had  been  done  to  death  by  the  appellant  by strangulating  her  and the dead body was lying in the  jute field,  has not been examined.  Thus, in view of the  nature of  evidence,  as stated above, it is not safe to  use  this circumstance  against  the appellant.  So far as  the  third circumstance that the appellant and the deceased Rita Kumari were  seen going together towards the orchard is  concerned, the  prosecution  has made an attempt in vain to  prove  the same  by  the  evidence of PWs.  2, 6 and 7.  Out  of  these three  witnesses,  PWs.  6 and 7 do not claim that they  had seen  the  appellant  and  Rita  Kumari  going  towards  the

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orchard, but stated that they learnt from Lachhman Sada (PW. 2)  at the place of occurrence that he had seen Rita  Kumari and the appellant going together upto the Bamboo Clamp.  The statement  of  these  two witnesses on this point  has  been contradicted  by  PW.2  who  stated that  he  had  seen  the appellant  alone going upto the Bamboo Clamp.  In the  light of  the  aforesaid  infirmities  in   the  evidence  of  the aforesaid witnesses, we are of the view that the prosecution has   failed  to  prove   this  circumstance.   The   fourth circumstance that the appellant and Rita Kumari were seen in the  field  of Shobha Kant Mishra plucking flowers has  been proved by PW.7 alone who does not claim to have himself seen them  plucking  the  flowers, but stated that  one  Mahendra Mishra  told  him  that  he had seen  Rita  Kumari  and  the appellant  plucking flowers, but, for the reasons best known to  the  prosecution, Mahendra Mishra, who alone could  have proved   this  circumstance,  has   been  withheld  by   the prosecution  and  no  explanation  is  forthcoming  for  his non-examination.   Therefore, we have no option but to  hold that  there  is  no  reliable evidence in  support  of  this circumstance.   The  fifth circumstance which has been  used against  the  appellant is that he was seen fleeing away  in the vicinity of the jute field immediately after the alleged occurrence  which the prosecution has attempted to prove  by the  evidence  of  PWs.   2, 6 and 7.  Out  of  these  three witnesses,  PW.2  stated that immediately after the  alleged occurrence  he  had  seen  the  appellant  fleeing  away  in suspicious  circumstances in the vicinity of the jute field. He  also  stated  that he told this fact to  the  villagers. PWs.   6  and 7 have supported him by saying that he  stated this  fact before them.  Therefore, the question rests  upon veracity of the evidence of PW.2.  A suggestion was given to this  witness  that he was inimical to the accused which  he had  denied.   It  is  not safe to  place  reliance  on  the evidence  of  this witness on this question,  especially  in view  of the fact that Palat Jha has been withheld from  the witness box and the prosecution has failed to prove that the appellant  and  Rita  Kumari  were seen  going  towards  the orchard  inasmuch  as it might be possible that by the  time the  appellant  arrived  the  orchard, the  crime  had  been committed  by  somebody else and seeing the dead body  lying there,  out  of  fear, the appellant might  have  been  seen fleeing  by PW.2.  The last circumstance which has been used against  the appellant is that after the alleged  occurrence he  absconded  from his house and surrendered in court  only after  about  a month from the date of  alleged  occurrence. The   only  evidence  on  this   circumstance  is   of   the Investigating Officer (PW.10) who has stated that during the course  of  investigation he received secret information  to the  effect that the appellant was seen fleeing away wearing only  undergarments and in order to verify the same, he left the  police station along with the armed forces in search of the  accused, went to the house of one Mithlesh Jha (husband of  appellants  sister)  at  Village  Murli  where  he  was informed that Chandra Mohan Mishra, father of the appellant, had  gone there in search of him and he having not found him there,  went  to the place of other relatives for  searching him.   This witness has nowhere stated from whom he received the  secret information inasmuch as such information  cannot be  made  a basis to prove this circumstance for being  used against the appellant.  The other portion of the evidence of this  witness  that  he learnt at the place  of  appellants brother-in-law, Mithlesh Jha, that his father, Chandra Mohan Mishra had come to the house of Mithlesh Jha and gone to the places  of other relatives in search of the appellant  could

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have been proved by examining Mithlesh Jha and Chandra Mohan Mishra  who  could have been the best persons to prove  this fact,  but,  for the reasons best known to the  prosecution, they  have  been  withheld.   It  may  be  stated  that  the Investigating  Officer  has  nowhere  stated  that  he  ever visited  the  house of the appellant nor any  other  witness stated that the appellant was not present in his house after the occurrence.  Thus, we find there is no credible material to prove this circumstance.  In any view of the matter, this circumstance  cannot  be used against the appellant as  from his  statement  recorded  under Section 313 of the  Code  of Criminal  Procedure,  it  would  be amply  clear  that  this circumstance  was never put to him and consequently the same cannot be used.  Reference in this connection may be made to a  decision of this Court in the case of Kehar Singh &  Ors. vs.   State  (Delhi Administration), 1988 (3) SCC  609.   In view  of the foregoing discussions, we have no option but to hold  that  the only circumstance which the prosecution  has proved  against the appellant is circumstance No.  I,  i.e., that  on  the date of occurrence the appellant came  to  the house of the informant in the morning and gave a proposal to his  daughter,  Rita  Kumari, for going to  the  orchard  of Shobha Kant Mishra for plucking flowers which cannot be said to   be  inconsistent  with   innocence  of  the  appellant, especially  in view of the fact that the fard-beyan was  not recorded  at the police station when the informant had  gone there,  but  at his house after two hours from the time  the informant  visited  the  police station,  the  Investigating Officer  suppressed the fact that the informant went to  the police  station  and  narrated the incident to  him  at  the police  station,  rather the Investigating  Officer  (PW.10) stated  that he received confidential information that  some murder  had  taken  place in the village of  occurrence  and further  the non-examination of Palat Jha, who was the  most material  witness  to unfold the truth.  We are  unhappy  to note that such a ghastly crime of first committing rape upon a  teenager  and thereafter brutally murdering her is  going unpunished  because of laches on the part of the prosecuting agency  in conducting the investigation and trial, and  have no  option  but  to  painfully  convert  conviction  of  the appellant who was a condemned prisoner into acquittal as the solitary  circumstance  proved against him can not form  the basis of conviction.  Accordingly, the appeal is allowed and the  conviction  and sentence awarded against the  appellant are set aside.