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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1793-1794  OF 2011

RAM SUNDER SEN APPELLANT VERSUS

NARENDER @ BODE SINGH PATEL RESPONDENT

WITH

CRIMINAL APPEAL NOS. 1795-1796  OF 2011

STATE OF MADHYA PRADESH APPELLANT

VERSUS

NARENDER @ BODE SINGH PATEL RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These  appeals,  by  special  leave,  are  directed  against  the

judgment and order dated 23.07.2008,  passed by the High Court

of Madhya Pradesh at Jabalpur in Criminal Appeal No.11 of 2008

along  with  Criminal  Reference  No.4  of  2007,  whereby  the  High

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Court allowed the criminal appeal filed by the respondent herein

and acquitted him and disposed of the Criminal Reference No.4 of

2007 filed by the State of Madhya Pradesh.

2. The  case  of  the  prosecution,  stated  briefly,  is  that  on

19.05.2004 at 8.30 A.M., the complainant Ram Sunder Sen lodged

a report at Police Chowki Kotar stating that there was a function in

his  house  on  18.05.2004  in  which  his  relatives  and  family

members had gathered. His daughter Anita, aged about 12 years,

after eating meal, had gone to sleep at 7.00 P.M. in front of the

main gate of  his house as there was no electricity in the house

then. After the function was over, at about 11.00 P.M., he and his

family members also slept there. Next morning  i.e. on 19.05.2004

at 6.00 A.M., the wife of Sarpanch Vansbahadur informed that the

dead  body  of  Anita  was  lying  in  Bari  near  the  house  of  the

Sarpanch. She was not wearing underwear and skirt. There were

abrasions  on  her  forehead,  nose  and  face.  Abrasions  were  also

found on the  neck as  well  as  nearby navel  region.   Blood  was

oozing out of private part, cut on the face and ankles of both the

legs. FIR against an unknown person was lodged, the dead body

was sent for post-mortem and investigation was thrown open. The

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Investigating Officer recorded the statements of the witnesses. On

the basis of the statement of the witnesses, accused Narendra @

Bode Singh Patel was arrested who admitted his guilt and at his

instance,  blood-stained underwears  of  the  deceased  as  also  the

accused were recovered from a pitcher kept behind his house.  

3. After  investigation was complete,  Police  filed challan before

the Court against accused Narendra and the case was committed

to the Sessions Court for trial. After considering the material on

record  and  hearing  the  counsel  for  the  accused,  charges  were

framed  against  accused  Narendra  for  offence  punishable  under

Sections 302, 376(2)(f)  and 201 of  the Indian Penal  Code,  1873

(“IPC” for short). The charges were read over and explained to the

accused to which he pleaded not guilty and claimed for trial.  

4. The Trial Court by its judgment and order dated 18.12.2007,

convicted  the  respondent  accused  and  awarded  capital

punishment to him for offence punishable under Section 302 IPC.

The Trial Court further sentenced him to rigorous imprisonment

for life for offence punishable under Section 376(2)(f), and rigorous

imprisonment for  seven years and a fine of  Rs100, with default

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clause,  for  the  offence  punishable  under  Section  201  IPC.

Thereafter, the matter was referred to the High Court of Madhya

Pradesh for confirmation of death sentence vide Criminal Reference

No.4 of  2007. The accused also filed an appeal  before the High

Court, being Criminal Appeal No.11 of 2008. The High Court by the

impugned judgment allowed the appeal filed by the accused on the

ground  that  the  prosecution  failed  to  prove  the  chain  of

circumstances sufficient enough to connect the accused with the

alleged offence and, consequently, the respondent accused was set

at liberty.

5. Aggrieved by the judgment of  acquittal  passed by the High

Court of Madhya Pradesh, the complainant, who is the father of

the deceased, has approached this Court by filing Criminal Appeal

Nos.1793-1794 of  2011.  The State  of  Madhya Pradesh has also

challenged before us the judgment of acquittal passed by the High

Court  vide  Criminal  Appeal  Nos.1795-1796  of  2011.  Learned

counsel for the complainant-appellant has inter alia submitted that

the  judgment  of  the  Trial  Court  is  well  reasoned  and  well

considered.  Both the counsel  for  the complainant-appellant  and

counsel for the State have assailed the reasoning given by the High

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Court in arriving at a wrong conclusion i.e. the innocence of the

accused.

6. The  Trial  Court  convicted  the  accused  respondent  on  the

basis  of  the  prosecution  story  relying  upon  the  circumstantial

evidence.  The law is well  settled in deciding a case based upon

circumstantial  evidences.  The  prosecution  tried  to  establish  the

following facts before the Trial Court :

(i) Motive : in order to satisfy the lust,

(ii) The recovery of underwear of the deceased as also the

underwear of the accused was made at the instance of the

accused in his own house,

(iii)  Human  blood  was  found  on  the  underwear  of  the

accused,

(iv)  The  accused  came  to  the  house  of  the  deceased  at

11.00pm on 18.05.2004 under the pretext of a Bidi but was

turned back by the mother of the deceased.

(v) Previous acts of the accused to make the deceased sit in

his  lap and to  kiss  her  for  which he  was  rebuked by  the

deceased's father reveals his ill-intentions.

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(vi)  Accused made an attempt to rape the daughter  of  one

Kallu Prajapati of Village Golhata prior to the incident,

(vii)  In  the  morning  of  19.05.2004  the  accused  was  not

found in the village,

(viii) Accused was seen around the place of incident at night

within close proximate time when the incident occurred,

(ix) Accused failed to give reasonable explanation about the

injuries suffered by him.

The Trial Court held that the above facts proved the prosecution

case  beyond  reasonable  doubt  and  hence  the  accused  was

convicted for the offence charged. However, the High Court pointed

out serious lacunae in the above-mentioned evidences and hence

the conviction order was set aside by the High Court giving benefit

of doubt to the accused.

7. We shall now examine each and every contention in light of

the arguments advanced before us. It is settled law that motive is

not a necessary element in deciding culpability but it is equally an

important  missing  link  which  can  be  used  to  corroborate  the

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evidence  where conviction is based on circumstantial evidence. In

the present case, the motive of the accused was stated to be 'to

satisfy  his  lust'.  For  this  purpose  the  prosecution  argued  that

although the accused was married and had children, but his wife

was living at her parent's house. The same fact was deposed by

Lalli Bai, mother of the prosecutrix (PW4). The Trial Court accepted

the said argument. However, the High Court rightly refused to rely

only on the statement of PW4 to establish the said fact. Further, it

is not adequately established as to for how long the wife of  the

accused was not living with him. The burden to prove this fact is

on the prosecution and not on the accused. The prosecution also

tried to impute bad character upon the accused. The High Court

rightly held that such evidences are not relevant. Sections 53 and

54 of the Indian Evidence Act, 1972 were discussed at length by

the High Court and it was held that the accused neither tried to

prove  his  previous  good  character,  nor  the  said  fact  was  in

question. An earlier instance of attempt to rape by the accused, as

deposed by the mother of the prosecutrix (PW4), Savitri, aunt of

the  deceased  (PW5)  and  Rajendra  Kumar  Sen,  brother  of  the

deceased (PW6), is not established at any stage of the trial. These

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witnesses are not only interested witnesses but they themselves

stated  that  their  evidence  is  hearsay.  The  prosecution  neither

produced any complaint/FIR nor any record was shown that any

such incident occurred. Thus, the prosecution squarely failed to

impute bad character  upon the accused.  Further,  the  motive  is

also not firmly established against the accused.

8. The  next  aspect  for  consideration  before  us  is  the

non-explanation by the accused of the injuries sustained by him.

As per the medical examination, the accused had certain abrasions

on his wrists and ankles and also some injuries on private part.

PW24 - the doctor who examined the accused, deposed that he

examined one Narendra S/o Ram Babu. But this doctor failed to

identify the accused before the Court. The prosecution also failed

to produce any evidence in order to prove that the name of the

father of the accused is Ram Babu. The name of accused's father is

Ram Bahore and it is nowhere shown that Ram Bahore is alias of

Ram Babu. With these discrepancies, the High Court refused to

accept that the accused was the same person who was examined

by the doctor PW24.  However, even if it is presumed that there

could have been error in writing down the name of the father of the

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accused  and due  to  long  time,  the  doctor  failed  to  identify  the

accused, yet the medical evidences are not clinching enough. The

accused  is  a  young  man,  certain  abrasions  can  be  regularly

sustained during the day while working in and around. Moreover,

the  accused having  worked in his  cousin's  wedding might  have

received the  abrasions.  Medical  opinion for  explanation to  such

abrasion is that such abrasion can occur due to itching also. The

other injuries on private part, in medical opinion, could be a result

of sexual intercourse with his wife. The accused is a married man

having children and it is not established that his wife was living

away from him. Hence, non-explanation of the above said injuries

is  not  an  incriminating  circumstance  so  as  to  attribute  any

criminality upon the accused.

9. The  next  incriminating  fact  is  the  recovery  of  the

blood-stained underwear of the deceased made at the instance of

the accused, from the house of the accused. However, upon careful

examination, serious doubts are cast upon the incident of recovery.

The witnesses to this seizure memo are Lalit Kumar Sen (PW9) and

Dayanand (PW22). As per the deposition of PW9, many doubts are

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created.  He  deposed  that  red  colour  underwear  as  well  as  an

underwear of accused were seized. However, he did not state as to

whom  did  the  red  colour  underwear  belong.  He  also  did  not

mention the place from where it was recovered nor did he mention

the manner in which the articles were seized.  PW22 further made

certain doubtful  revelations stating that at  the time of  recovery,

only he, accused and the police were present.  However,  he only

confirms the recovery of a red colour  underwear, but the place and

surrounding of the place of recovery were not deposed by PW22.

The deposition of the above two witnesses raises various doubts

about  recovery  of  material  facts.  Therefore,  the  High  Court

correctly raised doubt that it is highly unnatural that the accused

will keep the underwear in a pitcher in his own house.

10. The prosecution failed to prove its case on one more aspect.

Upon recovery of the underwear of the accused and the deceased,

although the same were sent  for  Serological  examination and it

was proved that blood was found on the underwear of the accused,

but no blood was found on the undergarments of  the deceased.

During  investigation,  the  blood  sample  and  soil  samples  were

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collected from the place of incident. However, it is shocking to note

that none of  these samples were sent for  FSL examination.  The

said  examination  could  have  been  very  useful  to  establish  the

identity  of  the  accused.  There is  thus a  serious lacunae in the

investigating procedure that a necessary test was not conducted.

11. The underwear of deceased vide identification memo Ex.P/14

was put for test identification.  PW4 deposed that she identified the

underwear as the same was torn from the bottom. However, when

this witness was put to cross-examination, she deposed that none

of the underwears which were put for identification, was torn from

the bottom. PW4 also stated that the underwear was blood-stained.

However, it is proved by serological report that no blood was found

on  the  underwear  of  the  deceased.  Upon  perusal,  numerous

contradictions  appear  from  the  statements  made  by  PW4,  and

serious doubt is raised not only on recovery of the undergarments,

but also upon the identification test.

12. The next evidence is the presence of the accused in the village

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at and around the time of the incident against which the accused

has pleaded alibi. The prosecution placed on record the testaments

of Ram Sunder Sen, father of the deceased (PW3),  stating that the

accused  came  to  his  house  3-4  times  during  the  night  of

18.05.2004. He also deposed that on 18.05.2004 at 11.00 P.M.  the

accused came to his house and asked for bidi, but he was turned

back by his wife PW4. PW4 also made deposition to this  effect.

However, upon cross-examination both these witnesses stated that

this fact was told to the police officer upon examination.  But no

such fact is present in their statements made to the police during

investigation. The High Court disbelieved the said fact as there was

a deviation from the  earlier  statement.  Further,  the  High Court

examined the statements of the defence witnesses, who deposed

that on the date of incident, the accused was present in another

village to attend the marriage function of his cousin. The defence

witnesses specifically deposed that the accused was present during

and after the function on 18.05.2004 and the accused stayed there

at night. It was further deposed that the accused left for his home

only after breakfast. This also explains the absence of the accused

in his village in the morning of the incident. The High Court rightly

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relied  upon  the  statement  of  an  independent  witness,  namely,

Kalawati  (PW1)  who  deposed  that  the  accused  was  not  in  the

village  on  the  fateful  night  as  he  had  gone  to  the  marriage

ceremony in other village. The said factum of marriage ceremony

and function in other village has been admitted even by the family

members of the deceased.  

13. The prosecution also placed on record an incident alleged to

have occurred a few days prior to the fateful day, when the accused

made the deceased sit on his lap and kissed her, for which the

accused was rebuked and beaten by the father of the deceased.

However, in their statement to the police, no such fact was deposed

by PW3 or PW4 and it was only before the Court that the above

witnesses stated this fact. Even if the said fact is presumed to be

true, we concur with the reasoning of the High Court that mere

snugging the deceased once, in itself, is no ground to connect the

accused with the alleged incident.

14. The  prosecution  also  adduced  the  testimony  of  Sanjeev

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Kumar Sen (PW28), cousin of the deceased, who alleged that in the

night intervening between 18th and 19th May, 2004 at about 4:30

A.M., he woke up to attend the call of nature when he saw the

accused coming towards his house from the Badi of the house of

Vanshgopal Sarpanch. Very close to that place, the deceased was

found dead in the morning. However, upon careful examination, it

can be gathered that this witness did not state such an important

fact to the police officer. Although he alleged that the said fact was

known  to  him  yet  the  report  was  lodged  against  an  unknown

person. Further, if the veracity of this statement is tested,  it fails

to  adduce  confidence.  PW28  himself  stated  that  he  saw  the

accused  at  4:30  A.M.,  however,  none  of  the  details  as  to  the

distance,  surrounding,  etc.  were  given.   The  source  of  light  in

which the witness saw the accused is also not stated. Therefore,

the High Court correctly rejected the testimony of PW28.

15. The  present  case  is,  thus,  based  purely  on  circumstantial

evidence.  It  is  a  settled  law  that  when  prosecution  relies  on

circumstantial  evidence,  the  following  tests  to  be  clearly

established:

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(i) The circumstances from which an inference of guilt

is sought to be drawn, must be cogent and firm;

(ii) Those  circumstances  should  be  of  a  definite

tendency  unerringly  pointing  towards  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

(iv) The  circumstantial  evidence  in  order  to  sustain

conviction  must  be  complete  and  incapable  of

explanation of any other hypothesis than that of the guilt

of  the  accused  and such evidence  should  not  only  be

consistent with the guilt  of  the accused but should be

inconsistent with his innocence.

The prosecution, however,  in the present case, has failed at the

foremost  to link the accused with the incident.  The prosecution

has the responsibility to present a chain of events. The accused's

culpability could have been established if the blood samples were

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tested and matched, the recovery of underwear is not proven to be

that of the deceased. Otherwise, the recovery was unnatural and

did  not  adduce  confidence.  One  prosecution  witness  who  is  an

independent  witness  has  stated  that  the  accused  had  gone  to

another  village  on  the  date  of  incident.  There  were  material

discrepancies in the statements of the prosecution witnesses. The

testimonies of the interested witnesses, namely,  PW3, PW4,  PW5

and PW28 clearly show that they materially improvised from their

earlier  depositions.  The  accused  also  examined  two  defence

witnesses who stated that the accused was attending function in

some other village on the fateful night. The High Court went into

each and every material aspect of the case, examined at length the

deposition of the witnesses and rightly held that the links which

are collected by the prosecution have not at all been proved by any

cogent evidence and, therefore, it is difficult to hold that it was the

accused who committed rape upon the  deceased and thereafter

killed her.

16. Thus, in the light of the above discussion, we do not find any

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ground to interfere with the judgment passed by the High Court.

The appeals are, accordingly, dismissed.

…....................................J                                                         (Pinaki Chandra Ghose)

…...................................J                                             (R.K. Agrawal)

New Delhi;

October 15, 2015