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        [Reportable] IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.403/2007

State of Gujarat   …..Appellant

Vs.

Ratansingh @ Chinubhai Anopsinh Chauhan …..Respondent

J U D G M E N T      

A.K.SIKRI,J.

1. The present appeal is directed against the final judgment and order  

dated 14th September 2006 passed by the Hon’ble High Court of Gujarat in  

Criminal Confirmation Case No.9 of 2004 with Criminal Appeal No.1915/2004,  

setting aside the judgment and order passed by the Ld. Additional Sessions  

Judge and second Fast Track Court in Sessions Case No.4/2004 convicting  

the respondent under Section 376,302 and 201 IPC for the offence of rape  

and murder of  a seven year old girl  and punishing him with sentence of  

death.  The  High  Court  found  severe  loopholes  and  shortcomings  in  the  

prosecution  story,  rendering  it  unbelievable  and  thereby  acquitted  the  

respondent in the aforesaid case.

2. The prosecution  case,  in  nutshell,  was that  the respondent/accused  

was  the  neighbour  of  the  deceased  girl  Komal  aged  7  years  r/o  village  

Bhammiya.  On the day of incident i.e. 16.8.2003 the victim was playing with

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her two friends viz. Parul and Saroj in the courtyard of the respondent. The  

respondent/accused came to  his  house between 15.00  to  15.30  hrs.  and  

scolded  the  girls  for  playing  there.  Parul  and  Saroj  ran  away  whereas,  

however,  the  deceased  girl  was  forcibly  caught  by  the  respondent  and  

pushed her into his house and he shut the door. Shakriben Chandrasinh, a  

neighbour  who was washing clothes,  heard the cries  of  victim which  got  

silent after sometimes. Thereafter Savitaben mother of the deceased girl,  

who returned from work at about 16.00 hrs. and not finding her daughter  

started  searching  for  the  victim  along  with  Shakriben.   A  day  after  the  

incident, dead body of the victim was recovered from a nearby field wearing  

a white frock with undergarment missing, which was later found from the  

hedge  falling  between  the  house  of  the  respondent  and  Shakriben  

Chandrasinh.  A  complaint  was  lodged  and  FIR  registered  by  Arvindbhai  

Khatubhai,  the  father of  the victim.  The police  started investigation and  

recorded  the  statements  of  witnesses.  Necessary  samples  were  also  

collected during the investigation and sent to FSL.  The dead body of the  

deceased  was  sent  for  the  post  mortem  which  was  conducted  by  Dr.  

Shashikant Nagori between 16.45 hrs. & 17.45 hrs. on 17.8.2003. The post  

mortem report mentioned following injuries:-

* Abrasion on both thighs, both knees and bruises over the legs.

* The injuries found on labia majora had a swelling of 3 x 2 cms. on  right majora and abrasion on left majora, such injuries were possible in  an attempted rape. There was penetration on the private parts of the  victim girl.

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* The presence of injuries on left mastoid region, which was bone  deep and brain matter had come out of the wound.

* There  was  haematoma over  whole  skull  on  both  parietal  and  frontal region and blood was oozing out of the left ear.

* There  was  a  depressed  fracture  of  skull  on  frontal  and  left  parietal region.

The doctor  opined that  the injuries  were sufficient  in  ordinary  

course of nature to cause death and it was homicidal death.

3. The respondent was arrested after two days i.e. on 19.8.2003 from a  

nearby  village,  who  had  allegedly  fled  after  committing  the  offence.  On  

search, a suicide note purportedly written by the respondent was recovered  

from his  pocket.   Besides,  blood  stained clothes  and blood  group  of  the  

deceased was noticed on other  articles.  He was found to have sustained  

injuries on his person, which was recorded in the arrest panchnama. Upon  

disclosure of  the accused, the grinding stone used in inflicting injuries on  

head of the deceased was recovered from his house.  After the recovery of  

the stone, a panchnama of recovery of the stone was drawn in the presence  

of panch witnesses on 20.8.2003.  Thereafter discovery panchnama of the  

articles was drawn which were concealed beneath the steel cupboard.  After  

the completion of investigation, the charge sheet was filed before the Ld.  

Chief Judicial Magistrate, Godhra on 22.8.2003.  After committal,  the case  

was  registered  as  Sessions  Case  No.4  of  2004  and  charge  against  the  

respondent accused was framed under Sections 376,302 and 201 of the IPC.  

The respondent denied the charge and claimed to be tried. The prosecution  

examined 23 witnesses in support of its case. None was examined by the

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accused in his defence. The statement of the respondent was recorded under  

Section 313 of the Cr.P.C. On 7.10.2004 the learned Sessions Judge after  

examining the oral and documentary evidence, returned the finding of guilt  

and  convicted  the  respondent  for  the  offence  of  rape and  murder.   The  

learned  Sessions  Judge  awarded  capital  punishment  for  the  offence  of  

murder  u/s  302  and  imprisonment  for  life  and  fine  of  Rs.1000/-  for  the  

offence of  rape u/s  376 and in default  to undergo SI  for  3 months.   The  

record of the case was forwarded to the High Court u/s 366 of the Cr.P.C. for  

approval of the death sentence awarded by the Sessions Court.  The accused  

also  preferred  Criminal  Appeal  No.1915/2004  before  the  High  Court  of  

Gujarat against the judgment and order dated 7.10.2004.

The Impugned Judgment:

4. As is clear from the above, the precise charge against the respondent  

was of raping the minor girl Komal and thereafter murdering her.  The High  

Court, on the basis of medical evidence namely the post-mortem report of  

the deceased found that it was case of homicidal death.  There is no quarrel  

about the same and this aspect is not disputed by the respondent before us  

as well.

5. As far as charge of rape is concerned, the High Court observed that  

there  was  no  direct  evidence  and  medical  evidence  was  the  only  

circumstantial  evidence  which  could  be  relied  upon.   It  discussed  the  

evidence of Dr. Nagori to this effect, who had conducted the post mortem on

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the dead body.  It was found that there was swelling of 3x2 cms on right  

labia majora and abrasion over left labia majora. It is also recorded in the  

postmortem notes that as per vagina examination, it was found that little  

finger  passed  with  difficulty  and  there  was  no  internal  injury.  The  post  

mortem  notes  also  indicated  abrasions  on  both  thighs,  both  knees  and  

bruises over legs. In his deposition, the doctor has deposed, after describing  

the  injuries,  that  the  injuries  found  on  labia  majora  were  possible  in  an  

attempted  rape.  During  cross-examination  he  deposed  that,  if  there  was  

penetration of penis in the vagina, there was possibility of internal injuries.  

He stated, in terms, that from the post mortem examination, in the instant  

case, there was no penetration of penis in the vagina.

6. On the basis of aforesaid, the High Court acquitted that offence of rape  

was not proved by the prosecution beyond reasonable doubt and it could, at  

the most, be considered an attempted rape.  The finding of the trial court  

recording the conviction for offence of rape under section 376 of the IPC has,  

accordingly, been set aside.  It is primarily on the ground that even if it is to  

be accepted that in a case of rape of a minor, complete penetration of penis  

with  emission  of  semen  and  rupture  of  hymen  is  not  necessarily  to  be  

established, in the instant case, the medical evidence clearly suggests that  

there was no penetration at all i.e. the factor which influenced the High Court  

to set aside the conviction based on section 376, IPC.

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7. The High Court, thus, proceeded on the basis that the deceased was  

murdered and there was an attempted rape on her.  It then addressed the  

central issue viz. whether the respondent could be connected with the said  

murder and attempted rape.  It was a case of circumstantial evidence, in the  

absence of any eye witness.  After discussing the evidence, the High Court  

found that prosecution  had failed to establish the chain of  circumstances  

could  connect  the  accused  with  the  crime.  There  were  material  

contradictions  and inconsistencies  in  the depositions  of  various  witnesses  

etc. which did not form a complete chain.  The High Court has, accordingly,  

set  aside  the  order  of  conviction  of  the  trial  court  as  unsustainable  and  

acquitted the accused of the charges. It is, inter-alia, held that the evidence  

led by the prosecution on last seen together cannot be accepted. It is not  

only contradictory, inconsistent and improbable, but also suffers from vice of  

improvements and therefore, it sounds unreliable.  As regards injuries found  

on  chest  and  back  of  the  person  of  accused  are  concerned,  which  the  

prosecution  tried  to  show  as  injuries  caused  with  nail,  possibly  by  the  

deceased,  the High Court  has discounted this  prosecution  version on the  

ground that the Post Mortem note does not indicate presence of any traces  

of skin of the accused in the nail of the deceased. As per the High Court the  

investigation  is  not  found  to  be  independent,  trustworthy  or  reliable,  the  

evidence does not establish a complete chain of circumstances to connect  

the accused with the crime.  There are major defects in the investigations  

which  render  it  doubtful  when  the  case  is  founded  on  circumstantial

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evidence.  It, thus, set aside the judgment of the Trial Court on the ground  

that the conviction cannot be recorded on such scanty, weak and incomplete  

evidence.

The Arguments:

8. The learned counsel for the State argued that High Court committed  

grave error in holding that there was no complete chain of the circumstances  

connecting  the  respondent  to  the  incident.   He  pointed  out  that  certain  

samples  of  blood,  clay etc.  were collected from the spot  and FSM report  

(Ex.54)  was  obtained therefrom which was duly  proved in  the  trial  court  

through  witness  No.20-Chandubhai  Nagjibhai  Pargi  who had stated in  his  

deposition that on receiving the message from control room on 17.8.2003 he  

along with FSL Mobile Van had gone to the place of incident and collected  

the following samples:

- Clay with blood from the place of incident.

Clay  bearing  doubtful  spot  recovered  from the  place  in  between two legs.

- Control clay recovered from the place at the distance of 5  feet from the dead body.

- Clay bearing pan padiki spittle recovered from the place at  the distance of 7 feet from the dead body.

- One  red  colour  knickers  bearing  spots  from  the  vada  behind  the  house  of  Chandrasinh  Laxmansinh  Chauhan,  situated in the south direction from the dead body.

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9. He  further  drew the  attention  of  this  Court  to  post  mortem report  

(Ex.7) containing external examination of the deceased. As per the said post  

mortem report, the following aspects were established:

1. Condition of the clothes whether  wet  with  water,  stained  with  blood, soiled with vomit or foecal  matter.

Stained with blood

2. Injuries  to  external  genitals,  indication of purging.

Swelling (hemetomal) 3x2 cm  over Rt.Labia mejora abrasion  over lt.labia mejora.

3. Surface wounds and injuries their  natural  position,  dimensions  (measured)  and directions  to be  accurately stated: their  probable  ages and cause to be noted.

a.Abrasions  over  medical  upper of both thighs. b.Abrasions over both knee. c.Bruises over both legs.

10. He also pointed out that opinion as to the cause or probable cause of  

death recorded by the Medical Officer was “cause of death is shocked due to  

head injury leading to skull injury over brain”.  He also pointed out that cloth  

of  the  deceased  was  stained  with  blood  and  there  were  abrasions  over  

medial  upper  both  thighs,  over  both  knees  and  bruises  over  both  legs.  

According   to  the  learned  counsel,  this  shows  that  the  deceased  was  

subjected to sexual assault and murdered.  

11. In order to connect the accused with the said incident,  the learned  

counsel referred to the testimony of PW12, Saroj who was playing along with  

Parul and deceased on the fateful day, on the courtyard of the residence of  

the accused when the accused reached there and scolded these girls.  His

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submission was that there was no cross-examination by the defence on this  

aspect and from this testimony it stood proved that the deceased was last  

seen with the accused, as PW12 had categorically stated that she and Parul  

left the place but the deceased remained there.  He further submitted that  

this was corroborated by  the neighbour Shakriben Chandrasinh (PW16) as  

well.

12. In nutshell,  the submission of the learned counsel for the State was  

that the circumstances formed a complete chain of events connecting the  

crime  to  the  accused  inasmuch  as:  (1)  the  victim  was  last  seen  in  the  

company  of  the  accused;  (2)  certain  samples  were  collected  from  the  

residence of  the accused including plaster  bearing blood,  blood taken on  

thread  by  rubbing  from ground  floor  of  western  wall,  support  (datto)  of  

wooden  plate  bearing  blood  spots,  pieces  of  paper  affixed  on  the  metal  

barrel, bearing blood spots etc.; the blood on the aforesaid as found was of  

“B” Group which is the blood group of the deceased; (3)clay from thighs with  

semen from the deceased was collected and semen was found to be of “O”  

Group which is  that of the accused; (4) the medical evidence, which clearly  

nails the respondent and there could be no other person who would have  

committed this crime.

Our Analysis:

13. Since it is a case of circumstantial evidence and the prosecution case  

starts  with  the  theory  of  last  seen,  the  first  place  is  as  to  whether  the

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prosecution  has  been  able  to  conclusively  and  beyond  reasonable  doubt  

prove that the deceased was last seen in the company of the respondent. For  

this  purpose, as already noted above, the prosecution has relied upon the  

testimonies of PW12,PW16,PW17 and PW18.  The paramount question is as  

to whether testimonies of these witnesses is reliable.  The High Court has  

found  certain  inherent  contradictions  in  the  depositions  of  the  aforesaid  

witnesses  on the basis  of  which  it  has  come to  the conclusion  that  it  is  

difficult to accept their version, which is even contrary to each other about  

the details of the events.  No doubt PW12, Sarojben was playing with the  

deceased and Parul  on the grounds of  the residence of  the accused and  

when  respondent  reached  the  spot,  he  asked  them  to  left.  However,  

thereafter whether the deceased remained there and was not seen at all  

thereafter till her dead body was found , is a pertinent question.  As per the  

prosecution  version  itself  the  deceased had left  that  place;  elbeit  at  the  

asking of the respondent who had sent her to the market to purchase Vimal  

Gutka and she returned back to the respondent after purchasing the said  

Gutka, to hand it over to the deceased. Whether it is conclusively proved  

that she returned back to the respondent? Here, according to the High Court,  

there are various contradictions in the depositions of the witnesses.  As per  

PW7, the shopkeeper from where the deceased had gone to purchase Gutka,  

the  deceased  had  come  to  his  shop  on  that  date  at  about  3  p.m.  She  

purchased eatable ( and not Gutka) for Rupee one and then she went away.  

During cross-examination, he stated that it had not happened that the victim

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had  come  to  his  shop  to  purchase  Vimal  Gutka.   So  according  to  him  

deceased had come to his shop to purchase some eatable. He also admitted  

that  in  his  statement before  the police  on 19th August  2003,  he had not  

stated that the deceased had come to his shop to purchase eatable.  On  

specific question put to him in the cross-examination as to why he did not  

tell the police about the victim’s visit to his shop to purchase eatable, he did  

not give any specific reply.

14. As per PW16(Shakriben),who is the neighbour of the respondent, she  

had seen the three girls playing in the courtyard of the respondent.  She  

further  stated that  the  respondent  drove away Parul  and Saroj  and then  

caught the victim and pushed her into his house.  Thereafter she heard cries  

of the victim and then she heard sound of beating.  She has further stated  

that  she  went  into  the  house  thereafter  but  was  threatened  by  the  

respondent that if she talked to anyone  in the town, he would kill her and  

her son. She has further stated that  the accused had arrived at about 2.30  

p.m. on the day of the incident and he was drunk. He tried to push open the  

rear  door  of  the  house.  The  witness  said  that  mother  of  the  accused,  

Divaliben had given the key of the house to her and, therefore, she gave the  

key to the accused. The witness has further stated that on the next day  

when mother of the victim was searching the victim, she told her that she  

had  not  seen  the  victim  and  she  joined  the  search.  During  cross-

examination,  the  witness  has  admitted  that  she  had  not  stated  in  her  

statement before police that the accused had intimidated her. She says that

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she does not know whether the victim had gone to purchase Gutka packet.  

The distance between her house and the house of the accused is 25 to 30  

feet.   She  says  that  she  did  not  tell  her  husband  or  her  son  about  the  

incident. She admits that she did not state before police that, at the time of  

the incident, she went into the house after washing clothes and sat in the  

house and, at that time, accused had intimidated her that, if she tells anyone  

in the village, he would kill her and her son. She admits that, on the day of  

incident as well as on the next day, when people were searching for the girl,  

she did not tell anyone about the incident.

15. Apart from the aforesaid omissions on the part of PW16 and PW17 in  

not mentioning to the police when they gave their statements, immediately  

after the incident, the High Court has also analyzed their statements along  

with  deposition  of  PW12  and  found  them  to  be  inconsistent  and  self-

contradictory in the following manner:

“From  depositions  of  these  three  witnesses,  the  prosecution has tried to establish the circumstances of  the  accused  having  been  seen  in  company  of  the  deceased last. But scrutiny of this evidence leads us to  negative  this  aspect.  According  to  PW12-Saroj,  she  was  playing  with  the  victim  and  Parul.   Accused  arrived  around  3O’  clock  and  shouted  “Ladidiyo”  (meaning young girls).  Therefore,  she and Parul  ran  away and the victim was left  behind. She says that  accused sent the victim to purchase a packet of Vimal.  She also says that, thereafter, she went home and was  doing lesson. She saw the victim going with a packet  of  Vimal  to  give  it  to  the  accused.  Therefore,  necessarily, if her say is taken at face value, then also  the victim was seen going to the house of  accused  with a packet of Vimal and if she did factually reach

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there, at that point of time, neither Saroj nor Parul was  present.

Against  the  above  situation  emerging  from  deposition of Saroj, if deposition of Shakariben (Ex.49)  is seen, she says that when Saroj, the victim and Parul  were  playing  in  the  courtyard  of  the  accused,  the  accused arrived and drove away Parul and Saroj and  caught  hold  of  the  victim  and  pushed  her  into  the  house, whereafter she heard cry of the victim and then  sound  of  beating,  meaning  thereby  that  when  the  deceased was taken into the house, that was the last  point of time when she was seen in company of the  accused  and,  at  that  point  of  time,  both  Saroj  and  Parul  were  present,  which  is  just  contrary  to  what  Saroj  says.  Viewed  from  another  angle,  Shakariben  does not speak of any even taking place before the  victim was pushed into the house and thereafter the  incident has occurred, as against the say of Saroj that  the accused sent the victim to get a packet of Vimal.  Necessarily,  therefore, what Shakariben saw was not  the last point of time when the victim and the accused  were together. The victim was seen by Saroj at a later  point of time and also by witness-Himatbhai. Parul has  not been examined by the prosecution as a witness.  Therefore,  the evidence regarding the accused seen  last  in  company  of  the  deceased,  as  led  by  the  prosecution, is inconsistent and self-contradictory.

That  apart,  the  conduct  of  PW16  seems  to  be  unnatural  and thus  unworthy  of  reliance.   The  High  Court  has  rightly  observed  that  it  does  not  inspire  confidence for several reasons, namely: (1) though she  claims to have the witness the accused pushing the  victim  into  the  house  and  then  hearing  her  cry  followed by sound of  beating,  she did  not  take any  steps to rescue her. (2) She did not even tell about this  incident to anyone, including her husband and son till  19th August 2003 when her statement was recorded.  (3)  Even  in  her  statement  to  the  police  she  has  omitted to state the aforesaid  purported facts.(4) On  the next day of the incident, when the search for the  victim was on, she still kept quite and did not disclose  the  incident  to  anybody.   Strangely,  she  joins  the  group  searching  for  the  victim.(5)  There  is  no  explanation as to when and why the respondent could

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have intimidated her.  As per the sequence of events  narrated by her, the respondent came; she gave him  the key of his house; the respondent went to his house  and shouted at girls;  the two other girls  went away  and  respondent  pushed  the  victim  into  house;  and  thereafter  she  (the  witness  went  to  her  house).  If  these  sequences  are  to  be  seen,  there  was  no  occasion for the accused to intimidate her.

As far as evidence of PW12,Saroj is concerned, she  stated that  she had lastly  seen the  deceased going  with packet of  Vimal.  She simply presumed that the  victim  was  going  to  give  the  said  packet  to  the  accused. However, she did not see the deceased going  with packet of Vimal Gutka to the respondent as she  specifically  stated  that  after  seeing  the  deceased  carrying  the  packet  of  Vimal  she  went  home  and  started  doing  her  lesson.   There  is  no  evidence  to  show  that  the  deceased  reached  the  house  of  the  accused  and  met  him.   In  fact,  there  is  some  contradiction  even  on  the  purchase  of  the  item  inasmuch as as per PW17 the deceased had purchased  eatable  whereas  PW-12  says  that  she  was  carrying  Vimal  Gutka.  PW17  has  specifically  said  that  the  deceased had not purchased Vimal Gutka from him.  From the aforesaid testimonies of Saroj Shakariben the  High  Court  has  also  observed  that  from  both  the  evidence taken together, prosecution story cannot be  believed inasmuch as if the situation is examined from  a different  angle,  if  what  Saroj  says  had happened,  then what Shakariben says could not have happened,  because  according  to  Shakariben,  on  arrival,  the  accused shouted at the girls and drove away Parul and  Saroj and pushed the deceased into the house and, if  what Shakariben says is correct, what Saroj says could  not  have  happened.  The  doubt  assumes  greater  strength  because  of  certain  circumstances  which  would be discussed in the paragraphs to follow.

Examined from any angle, the evidence led by the  prosecution  on last  seen together  aspect  cannot  be  accepted. It is not only contradictory, inconsistent and  improbable,  but  it  also  suffers  from  vice  of  improvements  and,  therefore,  to  us,  it  sounds  unreliable.  The  case  is  founded  on  circumstantial  evidence.  This  is  one  of  the  major  circumstances

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pressed  by  the  prosecution.  We  also  find  that  the  investigation is not carried out properly and does not  inspire confidence. The evidence on last seen together  aspect, therefore, cannot be accepted as a link in the  chain of circumstances leading to exclusive hypothesis  of guilt of the accused.”

16. We are in agreement with the aforesaid analysis of the evidence by the  

High  Court  and,  therefore,  hold  that  prosecution  has  not  been  able  to  

establish, with clinching evidence that the deceased was seen lastly in the  

company of the accused.

17. Even the medical evidence on which strong reliance was placed by the  

learned counsel for the State, is of no help to arrive at the conclusion that  

guilt of the respondent stands proved beyond reasonable doubt. When the  

respondent  was  arrested on  19th August  2003  a  Panchnama (Ex.14)  was  

drawn.  In that it is recorded that the accused had abrasions on chest, back  

and shoulder caused by nail and also that there was swelling on his penis  

and  swelling  on  skin  with  abrasion.   Immediately  after  his  arrest,  the  

respondent was sent for medical check up. As per the medical report (Ex.17)  

there were injuries on chest and back which is described by the doctor as  

linear abrasions. There were no foreign particles in his nails.  The doctor also  

admitted in his cross-examination that he did not notice any injury on the  

penis  of  the  accused.   Therefore,  this  shows  contradiction  between  the  

recording  of  medical  condition  in  the  Panchnama  and  the  medical  

examination conducted by the doctor, in so far as they relate to the injury on  

the  penis  of  the  respondent.   High  Court  has  rightly  observed  that  the

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Panchnama  has  recorded  abrasions  and  therefore  it  could  not  have  

disappeared  within  such  a  short  time.   It  reflects  adversely  on  the  

prosecution  case.   As  regards  injuries  found  on  chest  and  back  of  the  

respondent, they are tried to be shown as injuries caused with nail of the  

deceased. However, the post mortem note does not indicate presence of any  

traces of skin of the accused in nail of the deceased. Further, comments of  

the  High  Court  in  the  impugned  judgment  about  the  medical  evidence,  

pertinent for our purposes, are reproduced below as we entirely agree with  

the said analysis:

“From the above discussion of  evidence, it  is clear  that even according to doctor, there was no bleeding  injury  on  penis  of  the  accused.   There  was  no  bleeding injury to the deceased either. There were no  internal  injuries  in  the  vagina  of  the  deceased.  Against this, if the results of vaginal swab are seen,  presence  of  blood  and  semen  is  found.  How  this  could  have  been  found  is  a  question  which  has  remained unexplained and unanswered. This  would  cast  heavy  doubt  about  the  reliability  of  investigation.  That  apart,  the  group  has  remained  unidentified so far as vaginal swab is concerned.

If evidence of Shakariben is seen and, even as per  prosecution case, the incident occurred in the house  of the accused and this is tried to be proved through  deposition  of  Shakariben,  who  says  that  accused  pushed the deceased into his house and, thereafter,  she heard cry  of  the  deceased and then sound of  beating. As per the prosecution case, blood stains of  the group of the deceased were found in the house  of the accused at various places. No trace of semen  was  found  in  the  house  of  the  accused.  But,  surprisingly, at the place where the dead body was  found, semen was found on the ground. That was of  the group of the accused. If the incident occurred in  the house, the traces of semen ought to have been

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found in the house and not at the place where the  dead body was found. No motive is indicated for the  accused to murder the deceased immediately after  pushing  her  into  the  house  and,  if  the  rape  or  attempted rape was committed in the house followed  by alleged murder, there would have been traces of  semen in  the  house.  These factors  have remained  unexplained and seem to  have gone unnoticed  by  the trial court.”

18. The High Court has also expressed its doubts on recovery of grinding  

stone  from  the  house  of  the  respondent  which  was  allegedly  used  for  

committing murder of the deceased.  It is pointed out by the High Court that  

evidence suggests that the officer of the FSL was summoned on 19th August  

2003 who inspected the place of incident and instructed the Inquiry Officer  

to recover the stone which was, accordingly, recovered.  It is so stated in his  

report as well as in his deposition. Thus, as per the deposition of the officer  

of FSL, stone was recovered on 19th August 2003.  As against this, as per  

discovery Panchnama drawn on 23rd August 2003 the said grinding stone was  

recovered from beneath steel cupboard at the instance of the respondent.  

How this  recovery  could  have taken place if  the stone had already been  

recovered  on  19th August  2003.   This  casts  doubt  about  the  aforesaid  

documents and the discovery of stone itself.

19. There is another aspect highlighted by the High Court which is very  

pertinent and cannot be ignored.  After the incident when sniffer dog was  

brought to the site.  The said dog had tracked to the house of PW16 and not  

the respondent.  In fact, on this basis the son of PW 16 was even taken into

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custody by the  police  and was detained for  2  days.   Thereafter,  he was  

allowed to go inasmuch, as per the police he had not committed any offence.  

This  version has come from the testimony of PW16 herself.  On the other  

hand, I.O. has totally denied that son of PW16 was ever detained for 2 days.  

There  is  no  such  entry  in  the  daily  diary  as  well.   From  this  evidence  

appearing on record, the High Court has concluded that investigation cannot  

be considered as honest inasmuch as it would indicate to two possibilities,  

namely:

(1) The investigating officer did not detain or interrogate the son of  PW16 for 2 days.  If that is so he failed in his duty when the sniffer dog  tracked to the house of PW16.

(2) If  I.O.  had detained the son of  PW16,  then case diary does not  record the events correctly and he is not telling the truth before the  Court.

That  apart,  it  also  speaks  volumes  about  the  reliability  of  the  

investigation and evidence collected, more so when no explanation is coming  

forward  as  to  why the son of  PW16 was  released by the  police  and the  

respondent arrested.

20. We, thus, agree with the findings of the High Court that the evidence  

led by the prosecution does not establish a complete chain of circumstances  

to connect the accused with the murder of Komal, the deceased.  There are  

significant  defects  and shortcomings  in  the  investigation;  witnesses  have  

come  out  with  contradictory  version;  and  have  made  significant  

improvements in their versions in their depositions in the Court.  In a case of

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circumstantial evidence, it would be unwise to record conviction on the basis  

of such a scanty, weak and incomplete evidence. As the prosecution has not  

been able to prove the charges beyond reasonable doubt, agreeing with the  

conclusions of the High Court we dismiss the present appeal.

………………………………….J.          (K.S.Radhakrishnan)

………………………………..J.                      (A.K.Sikri)

New Delhi, January10, 2014