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                REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.592 OF 2010  

RAMESH   ……APPELLANT Vs.

STATE THROUGH INSPECTOR OF POLICE       ……RESPONDENT    

J U D G M E N T

V.GOPALA GOWDA, J.

This  appeal  is  filed  by  the  appellant  being  

aggrieved by the judgment and order dated 19.02.2008  

passed by the Madurai Bench of High Court of Madras in  

Criminal  Appeal  (MD)  No.  3  of  2007  urging  various  

grounds and legal contentions and prayed to set aside  

the conviction and sentence awarded against him and  

acquit him from the charges framed against him.

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CRL.A. NO.592 OF 2010   

2. The brief facts in nutshell are stated hereunder  

with  a  view  to  appreciate  rival  legal  contentions  

urged on behalf of the parties:-

The  prosecution  charged  the  appellant  under  

Sections 376, 302 and 201 of Indian Penal Code. The  

appellant pleaded not guilty. The trial was conducted  

on behalf of the respondent-prosecution and in order  

to substantiate the charges, it examined 22 witnesses  

and relied on 27 exhibits and 4 material objects. The  

trial court on the basis of evidence adduced by the  

prosecution has examined the appellant under Section  

313  of  the  Cr.P.C.  regarding  incriminating  

circumstances  found  in  the  evidence  of  the  

prosecution. The trial court recorded the finding of  

fact on appreciation of legal evidence on record and  

convicted  the  accused  and  sentenced  him  for  life  

imprisonment holding that the charges made against him  

under Sections 376, 302 and 201 IPC were proved and  

punishment of life imprisonment and payment of fine of  

Rs.5000/-, in default to undergo one year R.I. under  

Section 376 IPC, life imprisonment and payment of fine  

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of Rs.5000/- in default to undergo one year R.I. under  

Section 302 IPC and 3 years R.I. and payment of fine  

of Rs.1000/- in default to undergo 6 months R.I. under  

Section 201 IPC was awarded  to him and further held  

that all the sentences awarded against the appellant  

was to run concurrently.

3. The case of the prosecution is that on 3.11.2005  

at about 11.00 am, deceased-Seeni Nabra, aged 8 years  

along with her grandmother (PW-3) went to the rice  

mill of the appellant to get the grains for grinding.  

But having seen that the front portion of the mill is  

closed, PW-3 asked the deceased-child to go and ask  

the appellant to open the back portion of the mill and  

it  was  opened.  Accordingly,  PW-3  handed  over  the  

grains to the appellant and came to the house of a  

neighbour.  Sometime  later,  the  deceased-child  asked  

Rs.2/- from PW-3 for taking juice. Accordingly, she  

gave the same to her. Thereafter, the deceased-child  

went to the mill and asked the appellant whether the  

grains were grinded. At that time, she was taken to  

the back side of the mill by the appellant. Since, the  

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deceased-child did not return, PW-3 having waited for  

some time went home.  It is the further case of the  

prosecution that the appellant took the deceased-child  

to the backyard which was seen by an employee (PW-12)  

of the mill. The appellant permitted PW-12 to go for  

lunch  and  PW-12  left  for  lunch.  Then,  the  accused  

committed  rape  on  the  deceased-child  and  due  to  

neurogenic shock she died.  Since, the deceased-child  

did not come back, PW-3 informed her father (PW-1).  

Thereafter,  PW-1,  PW-3  and  others  searched  for  the  

deceased-child. At about 10.00 pm, PW-6, the owner of  

the textile shop situated just opposite to the mill of  

the appellant and the night watchman (PW-7) posted for  

security in that area found the appellant opening the  

mill unusually at that time. On being questioned, the  

appellant said that since the next day is Ramzan, he  

opened the mill for doing work. At about 10.15 pm, PW-

8, whose house is situated exactly behind the mill  

came to attend the call of nature and at that time, he  

heard a noise coming from the well side and he found  

the accused there and he questioned the appellant as  

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to what he was doing during night hours. Then, the  

accused told that since the next day was Ramzan, he  

was throwing the garbage into the well. The dead body  

of the deceased-child was found by PW-4 inside the  

well  and  having  seen  the  same,  PWs  1  to  3  were  

informed.  PW-1, the father of the deceased-child went  

over  to  the  respondent-police  station,  where  

PW-20, the Sub-Inspector of Police was on duty. He  

gave the complaint (marked as Ex.-P1) to PW-20, the  

aforesaid Sub-Inspector on the basis of which, a case  

came  to  be  registered  as  FIR  No.  146/2005  under  

Section 174 Cr.P.C. Ex.-P23 (the FIR) was dispatched  

to the court. The dead body was taken out from the  

well. The place of occurrence and the dead body were  

photographed  by  PW-9  and  marked  as  M.O.1  (series).  

Thereafter, the dead body was sent to the Government  

Hospital,  Rameswaram.   The  Inspector  of  Police,  

Rameswaram (PW-22) on receipt of the copy of the FIR,  

proceeded to the Government Hospital, Rameswaram and  

conducted inquest on the dead body of the deceased in  

the presence of the witnesses and panchayatdars. He  

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prepared the inquest report marked as Ex.-P24. Then,  

he gave a requisition to the doctor for conducting  

post-mortem on the dead body of the deceased-child.  

The  Doctor  (PW-15)  of  the  Government  Hospital,  

Rameswaram, on receipt of the requisition, conducted  

post-mortem on the dead body of the deceased-child and  

issued  post-mortem  report(Ex.-P8)  wherein  he  stated  

that  the  decease-child  would  appear  to  have  died  

within 24 to 48 hours prior to the post-mortem and the  

death was due to neuorogenic shock. It was further the  

case  of  the  prosecution  that  PW-21  took  up  the  

investigation  and  recorded  the  statement  of  the  

witnesses. He went to the scene of occurrence and made  

an inspection in the presence of the witnesses and  

prepared  the  observation  mahazar  (Ex.-P2)  and  the  

rough  sketch  (Ex.-P25).  After  getting  the  medical  

opinion, the charges were altered to Sections 376 and  

302 IPC. Ex.-P26, the amended FIR was dispatched to  

the court. On 9.11.2005, the appellant was arrested by  

the  investigation  officer  in  the  presence  of  the  

witnesses. The appellant made confessional statement  

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voluntarily, which was recorded in the presence of the  

witnesses, the admissible part of which was marked as  

Ex.-P3.  Following  the  same,  the  accused  took  the  

investigation  officer  to  the  Mill  and  produced  the  

M.O.2 (Shawl) which was worn by the deceased-child at  

the time of the occurrence and the same was recovered  

under a cover of mahazar.

4. The appellant identified the place where he had  

committed the offence. Then, the Investigation Officer  

made  an  inspection  and  prepared  Ex.-P5,  the  

observation  mahazar  and  Ex.-P27,  the  rough  sketch.  

Following the same, the appellant was sent for medical  

examination.  PW-14,  the  doctor  attached  to  the  

Government  Hospital,  Ramanathapuram,  medically  

examined him and issued Ex.-P7, the age certificate.  

Then, the appellant was medically examined by PW-13,  

the  doctor  attached  to  Ramanathapuram,  Government  

Hospital and he issued Ex.-P6, the certificate stating  

that  the  appellant  is  found  to  be  potent.  All  the  

material  objects  recovered  from  the  place  of  

occurrence and from the dead body of the deceased-

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child as also the material objects recovered from the  

appellant  were  sent  for  chemical  analysis  by  the  

Forensic  Science  Department.  Ex.-P9,  the  Chemical  

Analyst’s report and Ex.-P22, the Hyoid Bone report  

were  received.  The  Inspector  of  Police  (PW-22)  

recorded the statement of the witnesses. On completion  

of the investigation, the Investigation Officer filed  

the final report before the learned Magistrate Court.  

The case was committed to the Court of Sessions for  

trial  and  necessary  charges  were  framed.  The  

prosecution  examined  22  witnesses  and  relied  on  27  

exhibits and 4 material objects on completion of the  

evidence on the side of the prosecution. The appellant  

was  examined  under  Section  313  Cr.PC  regarding  the  

incriminating circumstances found in the evidence of  

prosecution  witnesses  which  was  denied  by  him.  The  

trial  court  on  appreciation  of  evidence  on  record  

found  that  the  appellant  is  guilty  of  the  charges  

levelled  against  him  and  he  was  convicted  and  

sentenced for the offences as stated above.

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5. Aggrieved by the said order of the learned trial  

judge, an appeal was filed by the appellant before the  

Division Bench of Madurai Bench of the Madras High  

Court urging various legal contentions and questioning  

the correctness of the findings recorded by the trial  

court against the appellant and holding that he was  

guilty of the same. The High Court on re-appreciation  

of the evidence on record did not find any infirmity  

in either factual or legal aspect in the judgment of  

the trial court and sustained the same by passing the  

impugned  judgment.  The  correctness  of  the  same  is  

challenged in this appeal framing certain substantial  

questions of law urging the following grounds.

6. It is contended on behalf of the appellant that  

the prosecution has failed to comply with mandatory  

procedures as required under Section 174(1) and (2) of  

Cr.PC  i.e.  non  sending  of  the  intimation  recorded  

under Section 174(1) and the report under Section 174  

(2) of Cr.PC (reasonable suspicion on death) to the  

nearest  Executive  Magistrate  or  Sub-Divisional  

Magistrate  who  is  empowered  to  hold  preliminary  

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inquest enquiry and such irregularities  on the part  

of  the  investigating  agency  vitiates   the  entire  

proceedings  under  Section  461  of  Cr.PC.  Mr.  S.  

Mahendran,  learned  counsel  for  the  appellant  placed  

reliance upon the judgment of this Court in Raj Kumar  

Singh v. State of Rajasthan1 regarding not naming the  

accused in the FIR is fatal to the prosecution case.  

It is further contended that this case is based on the  

circumstantial evidence on which the trial court as  

well as the first appellate court while considering  

the  said  evidence  on  record  have  relied  upon  and  

convicted  and  sentenced  the  appellant  for  offences  

charged against him. Therefore, the benefit of doubt  

is available to the accused which should have been  

adopted and the courts below should have passed the  

order  of  acquittal.  In  support  of  the  aforesaid  

submission, he has placed reliance upon judgment of  

1

(2013) 5 SCC 722

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this Court in the case of  Baldev Singh  v.  State of  

Haryana2  and further contended that first charge of  

rape on the appellant is not proved, automatically the  

second charge of murder under Section 302 IPC does not  

survive for consideration. This aspect of the matter  

has not been considered properly by the courts below.  

Therefore, the impugned judgment is liable to be set  

aside and further strong reliance was placed on the  

judgment in Raghunath v. State of Haryana and Anr.3 in  

support of the contention that medical evidence does  

not  support  the  prosecution  case  and  hence,  the  

benefit of reasonable doubt shall go in favour of the  

appellant.  In  support  of  this  submission  he  also  

placed reliance upon the judgment of this Court in  

Devinder Singh & Ors.  v. State of Himachal Pradesh4.  

And  another  legal  ground  urged  on  behalf  of  the  

appellant is that the criminal court recognizes and  

accepts  the  inadmissible  evidence,  therefore,  the  

finding recorded holding both charges proved against  

him  is  erroneous  in  law  for  want  of  accepting  the  2 (2008) 14 SCC 768 3 (2003) 1 SCC 398 4 (2003) 11 SCC 488

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inadmissible evidence. Therefore, the said finding is  

liable to be set aside. Further reliance was placed on  

the evidence of the doctor (PW-15) who has stated that  

no external injuries were found on the deceased-child.  

Therefore,  the  question  of  death  due  to  neurogenic  

shock is wholly untenable as the same is not supported  

by the doctor’s evidence.   

7. It is further contended that the alleged recovery  

of the dead body of the deceased-child from the well  

was required to be corroborated with medical evidence.  

The same has not been proved by the prosecution and  

further  the courts below have mis-directed themselves  

with regard to the investigation made by PW-21 and the  

circumstances  placed  on  record  on  the  basis  of  

evidence of PWs.-1, 2, 3, 5, 8 and 12 are nothing but  

improved versions. Therefore, the courts below should  

not have placed reliance on such evidence to convict  

and  sentence  the  appellant  on  the  basis  of  said  

evidence which is not legally justified.

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8. It is the case of the prosecution that the courts  

below failed to consider the vital evidence of the  

doctor (PW-15). During the examination-in-chief, the  

doctor clearly stated that there is no symptom on the  

body which indicated drowning in water and the symptom  

found on the body could be that of wrinkling of skin  

and  becoming  pale  etc.  that  is  why  he  has  not  

mentioned  this  fact  in  his  certificate.  On  the  

suggestion  made  to  him  regarding  non  mentioning  of  

rigor mortis found on the body, the same was denied by  

him. Though, he answered that he has not mentioned the  

same, in the post mortem report but he conceded to the  

approximate time of death on the basis of rigor mortis  

found in the body and also admitted that he has not  

mentioned the external injuries found on the body as  

to whether they were  ante or post mortem in nature.  

He also suggested that normally in the first coitus  

abrasions, contusions are possible on the vaginal part  

but in this case they are all absent. Further, the  

courts below ignored the evidence namely the Police  

inquest requisition to the doctor for conducting post-

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mortem  on  the  deceased-child.  Even  on  the  police  

requisition, it was not mentioned that it is the case  

of rape and murder. According to the prosecution, the  

dead body found in the well, only legs were visible  

inside the well, if that is so, there should have been  

definite injury on the skull and other limbs but they  

are all absent in the case in hand as could be seen  

from the post-mortem report which creates doubt on the  

alleged recovery of dead body from the well.

9. Further, the courts below have failed to consider  

the evidence of investigation officer. PW-21, who is  

the I.O. in this case has brought several divergent  

facts  among  the  prosecution  witnesses  which  are  

believed by the courts below without proper analysis  

of  the  said  evidence  for  convicting  the  appellant.  

According  to  the  investigation  officer,  he  arrested  

the  appellant  on  9.11.2005  at  Akkalmadam  Bus  stop  

which is contradictory with the evidence of PW-12, co-

labour in the mill, who had stated that he and the  

appellant  were  in  police  custody  from  4.11.2005  

onwards. Later, he was treated as prosecution witness.  

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Therefore,  the  alleged  arrest  of  the  appellant  as  

stated  by  IO  in  his  evidence  is  not  correct  and  

further at the instance of the appellant, the material  

object (shawl) alleged to have worn by the deceased  

was recovered. However, this fact and identity has not  

been  elicited  from  any  of  the  witnesses  in  their  

examination in chief. He said that he examined the  

Sub-Inspector who registered an FIR only on 9.11.2005  

i.e. after five days of the incident. It is further  

stated  by  him  that  he  saw  the  body  firstly  at  

Government  Hospital  mortuary.  However,  he  admitted  

that if the body is brought to the hospital directly,  

the particulars were recorded in an accident register  

and  immediate  intimation  would  be  given  to  police  

station.  In the case in hand no such formalities have  

been complied with by the hospital authority.  When  

PW-21  was  questioned  with  regard  to  mentioning  on  

Column No. 25 in Ex.-P-21, he admitted that “while  

going for having juice, somebody cornered the girl and  

molested  her  inside  the  house”.  But,  in  the  post-

mortem  requisition,  he  did  not  ask  to  conduct  

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examination as to whether any rape has been committed  

on her. At the same time, he is not in a position to  

explain as to how he has mentioned these particulars  

in the inquest proceedings.  He further admitted that  

Nazirdeen (PW-8), had alleged to have heard noise from  

the well and seen the appellant going on back side of  

the mill at 10.30 pm. The concerned house is a single  

room  house  and  he  has  not  mentioned  either  in  his  

observation mahazar or in the rough sketch that “the  

house  consists  of  any  backyard  entry,  bathroom  and  

latrine”.  He  further  admitted  that  he  has  not  

mentioned  that  there  is  any  backyard  entry  in  the  

Kathanjenna’s house (who is alleged to have seen the  

body inside the well). He had also further admitted  

that he has not prepared any observation mahazar or  

rough sketch about the inside of the mill. Though he  

examined the adjacent shop owners but those shops have  

not  been  shown  in  his  observation  mahazar.  It  is  

further  stated  by  him  that  during  the  course  of  

enquiry, PW-1 has not stated that he did not receive  

any information from his mother in law. He further  

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admitted that PW-3 has not stated anything about the  

appellant  who  collected  things  for  grinding  and  

returned the same.  

10. Further, the courts below have not considered the  

evidence of PW-3 who has stated in her second enquiry  

that her granddaughter’s slippers were found in front  

of Kathun’s house. Kathun Jenna has not stated in any  

enquiry that she went to close the well with lid where  

she had seen two legs inside the well. It is further  

contended that the trial court on wrong appreciation  

of evidence came to the erroneous conclusion on the  

charges to record its finding against the appellant on  

the  basis  of  incredible  and  inconsistent  

circumstantial  evidence.  The  conviction  recorded  by  

the  trial  court  for  the  simple  reason  that  the  

appellant  has  confessed  that  after  he  ravished  the  

deceased, he threw the body inside the well and to  

corroborate  the  same  the  investigation  officer  has  

recovered a shawl at the instance of the appellant  

which is not admissible unless the recovery of shawl  

is  proved  from  the  other  cogent  evidence.  It  is  

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contended by the learned counsel that the conviction  

of the appellant is based on the basis of surmises and  

conjectures,  therefore,  he  has  prayed  for  setting  

aside the conviction and sentence awarded against him.

11. On the other hand, Mr. M.Yogesh Kanna, the learned  

counsel  for  the  respondent-prosecution  sought  to  

justify the concurrent findings and reasons recorded  

on  the  charges  after  proper  analysis  and  re-

appreciation of evidence on record by both the trial  

court and the High Court after careful examination  of  

the evidence on record having regard to the charges  

levelled against the appellant. He has placed reliance  

upon the judgment in  Raj Kumar Singh  (supra) wherein  

it is stated that not naming the accused in the FIR  

does not vitiate the prosecution case and he further  placed reliance upon the confessional statement of the  

appellant  under  Section  27  of  the  Evidence  Act  

regarding recovery of the shawl which fact is spoken  

to by PW-1 and he placed reliance upon the judgment in  

Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr.5  

5 (2013) 12 SCC 796

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and  Ramnaresh  &  Ors.  v.  State  of  Chhattisgarh6  

regarding non mentioning of the appellant in the FIR  

does not vitiate the prosecution case. The last seen  

theory of the deceased with the appellant support the  

finding and reasons recorded by the courts below in  

framing  charges  against  the  appellant  by  placing  

reliance upon the judgment in  Budhuram  v.  State of  

Chhattisgarh7.

12. The learned counsel on behalf of the prosecution  

invited  our  attention  to  the  evidence  of  the  

prosecution which is based on recording the evidence  

of PW-12 and medical evidence of PW-15  with regard to  

the age of the appellant, his potency for intercourse  

which  is  established  and  further  the  oral  evidence  

supported by the medical evidence, particularly, PW-13  

and PW-15 justify the conviction and sentence awarded  

against the appellant on the charges levelled against  

the appellant. Therefore, it is urged that the legal  

submissions  urged  on  behalf  of  the  appellant  by  

placing  reliance  upon  the  judgments  of  this  Court  6 (2012) 4 SCC 257 7 (2012) 11 SCC 588

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which are referred to above do not support the case of  

the appellant.  Therefore, the learned counsel of the  

prosecution urged not to interfere with the concurrent  

finding of fact which is based on proper re-valuation  

of legal evidence on record. The same is supported by  

medical  evidence.  Though  some  evidence  is  

circumstantial  evidence,  the  findings  of  the  courts  

below  are  supported  by  cogent  evidence  on  record.  

Hence, the learned counsel requested for dismissal of  

the appeal by affirming the conviction and sentence  

awarded against the appellant.

13. With  reference  to  the  above  rival  contentions  

urged on behalf of the parties, we have examined very  

carefully the entire evidence on record with a view to  

find out the correctness of the findings recorded on  

the charges levelled against the appellant.  

14. Three main points come up for the consideration in  

the present case:

1.Whether  the  absence  of  name  of  the  accused in the FIR points towards the  

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innocence of the accused and entitles  him for acquittal?

2.Whether the present case is a fit case  to  apply  the  last  seen  theory  to  establish the guilt of the accused?

3.Whether the circumstantial evidence in  the present case indicate towards the  guilt of the accused and whether these  evidences are sufficient to establish  the guilt of the accused?

Answer to point no. 1

15. We intend to address each contention separately  and begin with the first contention of the appellant/  accused that his name did not appear for the first  time in the FIR and mention of his name was only an  improvement  of  the  first  version.  It  has  been  mentioned by the High Court in the impugned judgment  that the FIR- Ex. P1 initially did not mention the  name  of  the  accused  and  on  the  other  hand,  PW-1,  father of the deceased child had suspected one of his  relatives for the offence. It was however, revealed  after  investigation  that  it  was  the  accused  who  committed  the  act  and  the  police  in  fact  was  proceeding in the right path. The involvement of the  accused has been further corroborated by the recovery  of  the  shawl  of  the  deceased  on  the  basis  of  the  

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confession  of  the  accused  which  was  made  in  the  presence of witnesses. We intend to concur with the  decision of the High Court that non mentioning of the  name in the initial FIR is not fatal to the case of  the prosecution. It has been held by this Court in the  case of Jitender Kumar v. State of Haryana8:-

“16. As already noticed, the FIR (Ext.  P-2) had been registered by ASI Hans  Raj, PW 13 on the statement of Ishwar  Singh, PW 11. It is correct that the  name  of  accused  Jitender,  son  of  Sajjan Singh, was not mentioned by PW  11  in  the  FIR.  However,  the  law  is  well  settled  that  merely  because  an  accused has not been named in the FIR  would  not  necessarily  result  in  his  acquittal. An accused who has not been  named  in  the  FIR,  but  to  whom  a   definite role has been attributed in  the commission of the crime and when  such role is established by cogent and  reliable evidence and the prosecution  is also able to prove its case beyond  reasonable doubt, such an accused can  be punished in accordance with law, if  found  guilty.  Every  omission  in  the  FIR may not be so material so as to  unexceptionally be fatal to the case  of  the  prosecution.  Various  factors  are  required  to  be  examined  by  the  court,  including  the  physical  and  mental condition of the informant, the  normal  behaviour  of  a  man  of  reasonable prudence and possibility of  an  attempt  on  the  part  of  the  informant  to  falsely  implicate  an  accused.  The  court  has  to  examine  

8 (2012) 6 SCC 204

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these  aspects  with  caution.  Further,  the court is required to examine such  challenges in the light of the settled  principles while keeping in mind as to  whether the name of the accused was  brought to light as an afterthought or  on  the  very  first  possible  opportunity.

17. The court shall also examine the  role that has been attributed to an  accused  by  the  prosecution.  The  informant  might  not  have  named  a  particular  accused  in  the  FIR,  but  such name might have been revealed at  the earliest opportunity by some other  witnesses and if the role of such an  accused  is  established,  then  the  balance may not tilt in favour of the  accused owing to such omission in the  FIR.

18. The court has also to consider the  fact that the main purpose of the FIR  is to satisfy the police officer as to  the commission of a cognizable offence  for  him  to  conduct  further  investigation in accordance with law.  The  primary  object  is  to  set  the  criminal law into motion and it may  not be possible to give every minute  detail with unmistakable precision in  the  FIR.  The  FIR  itself  is  not  the  proof of a case, but is a piece of  evidence  which  could  be  used  for  corroborating  the  case  of  the  prosecution. The FIR need not be an  encyclopaedia  of  all  the  facts  and  circumstances on which the prosecution  relies. It only has to state the basic  case.  The  attending  circumstances  of  

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each  case  would  further  have  considerable bearing on application of  such principles to a given situation.  Reference in this regard can be made  to State of U.P. v. Krishna Master and  Ranjit Singh v. State of M.P.”

Therefore, the contention of the appellant that since  

his name did not appear in the FIR, he is entitled to  

acquittal, is not maintainable. We accordingly, answer  

this point in favour of the respondent.  

Answer to point no. 2

16. It is the case of the prosecution that P.W. 3, the  grandmother of the accused had sent the child to see  whether the floor was grinded. However, when the child  did not return for some time, P.W. 3 went home.  At  this juncture, there is evidence through PW 5 and PW  12  who  were  employees  under  the  accused  that  the  accused  took  the  child  to  the  backyard  while  he  unusually permitted PW 12 to go for lunch. Further,  the accused could not explain the need of taking an 8  year old child to the backyard. In this aspect of the  last seen theory, it has been held by this Court in  the  case  of  Kusuma  Ankama  Rao v. State  of  Andhra  Pradesh9 as under:

9 (2008) 13 SCC 257

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“10. So far as the last-seen aspect is  concerned it is necessary to take note  of  two  decisions  of  this  Court.  In  State of U.P. v.  Satish it was noted  as follows: (SCC p. 123, para 22)

“22.  The last-seen theory comes into  play where the time gap between the  point of time when the accused and the  deceased were seen last alive and when  the deceased is found dead is so small  that possibility of any person other  than the accused being the author of  the crime becomes impossible. It would  be  difficult  in  some  cases  to  positively establish that the deceased  was last seen with the accused when  there is a long gap and possibility of  other  persons  coming  in  between  exists. In the absence of any other  positive evidence to conclude that the  accused  and  the  deceased  were  last  seen together, it would be hazardous  to come to a conclusion of guilt in  those  cases.  In  this  case  there  is  positive  evidence  that  the  deceased  and the accused were seen together by  witnesses PWs 3 and 5, in addition to  the evidence of PW 2.”

(emphasis laid by this Court)

In Ramreddy Rajesh Khanna Reddy v. State of A.P.  it was noted as follows: (SCC p. 181, para 27)

“27.  The  last-seen  theory,  furthermore, comes into play where the  time  gap  between  the  point  of  time  when the accused and the deceased were  last seen alive and the deceased is  found  dead  is  so  small  that  

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possibility of any person other than  the accused being the author of the  crime becomes impossible. Even in such  a case the courts should look for some  corroboration.”

In the case in hand, the deceased child was taken to  

the backyard of the mill by the accused and the same  

was seen by PW 5 and PW 12. The deceased child went  

missing  since  then  and  was  found  dead  the  next  

morning. The accused did not explain why did he take  

the  child  to  the  backyard.  On  the  other  hand,  he  

confessed to his crime which was corroborated by the  

recovery of a shawl at the instance of the accused  

himself in the presence of witnesses. Therefore, in  

the light of the principle laid down by this Court, we  

are of the opinion that the High Court was justified  

in holding the accused guilty of rape and murder of  

the deceased child. We accordingly answer this point  

in favour of the respondent.  

Answer to point no. 3

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17. On the date of occurrence, at about 10:00 pm, the  

accused opened the mill unusually at odd hours. The  

same was witnessed by PW 6, the textile shop owner  

whose shop was situated opposite the mill and also PW  

7, who was the night watchman. Both had questioned the  

accused  regarding  this  odd  behaviour  to  which  he  

answered that since the next day is Ramzan, he came  

for  grinding  the  flour.  Another  strong  circumstance  

was  the  evidence  of  PW  8  whose  house  is  situated  

exactly  behind  the  mill.  When  PW  8  came  out  for  

attending the call of nature at 10:15 pm, he heard a  

noise from the well which is situated behind the mill  

and on seeing the accused proceeding towards the mill,  

he stopped the accused and asked as to what he was  

doing. To this, the accused answered that the accused  

was throwing garbage in the well since the next day is  

Ramzan. Since the dead body was found next day from  

the  well,  circumstantial  evidence  points  the  

involvement of the accused in throwing the dead body  

of the child in the well the previous night.  The High  

Court therefore, is justified in construing that the  

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appellant/accused had kept the dead body in the mill  

and threw the dead body in the well at about 10:15 pm.  

18. It is true that in the present case, there is no  

direct evidence which prove that the rape and murder  

of the deceased child was committed by the appellant.  

There are no witnesses available on record who have  

testified  having  witnessed  the  appellant  committing  

the  crime.  However,  all  the  circumstances  point  

towards the appellant as being the author of the crime  

in the present case. It has been held by five judge  

bench of this Court in the case of  Govinda Reddy &  

Anr. v. State of Mysore10 as under:

“5. The  mode  of  evaluating  circumstantial  evidence  has  been  stated  by  this  Court  in  Hanumant Govind Nargundkar v. State of Madhya  Pradesh1 and it is as follows:

“It is well 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  

10 AIR 1960 SC 29

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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  to  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.”

19. Again, in the present case, the recovery of the  

body of the deceased child from the same well where  

PW-8 had seen the accused appellant the previous night  

throwing something in the well provides for a strong  

circumstantial evidence. The unusual behaviour of the  

accused in taking the deceased child to the backyard  

of the mill, sending of his employee for lunch at the  

same time and also the opening the mill in the odd  

hours  of  the  night  the  very  same  evening  points  

towards the guilt of the accused. We answer this point  

in favour of the respondent.

20. Since, all the points are answered in favour of  

the  respondent,  we  hold  that  the  High  Court  was  

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correct  in  upholding  the  decision  of  the  Sessions  

Judge in convicting the accused of rape and murder of  

the deceased child. We therefore, sustain the decision  

of  the  High  Court  and  hold  that  the  charges  under  

Sections 376, 302 and 201 of IPC are proved against  

the appellant. His sentence of life imprisonment and  

fine of Rs.5000/- and in default one year rigorous  

imprisonment under Section 376, life imprisonment and  

fine of Rs.5000/- and on default, one year rigorous  

imprisonment  under  Section  302  and  also  3  years  

rigorous  imprisonment  and  fine  of  Rs.1000/-  and  on  

default,  rigorous  imprisonment  of  six  months  under  

section 201 of IPC is confirmed. All sentences are to  

run concurrently. Accordingly, the appeal is dismissed  

as the same is devoid of merit.  

……………………………………………………J.  [DIPAK MISRA]

       ……………………………………………………J.     [V. GOPALA GOWDA]

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New Delhi,                                          August 1, 2014

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