N Criminal Appeal No 276 of 1991
From the Judgment and Order dated 1671990 of the Orissa High Court in Criminal Appeal No 117 of 1990 And Death Reference No 1 of 1990
HK Puri Amicus Curiae for the Appellant
AD Giri Solicitor General and AK Panda for the Respondent
The Judgment of the Court was delivered by K JAYACHANDRA REDDY J
Leave granted
This is a case of death sentence
The fact that such a sentence is awarded even in the year 1990 would immediately suggest that the offence involved should be of a grave nature
Yes the offence is not only grave but heinous and inhuman
A girl aged five years was a victim of rape and thereafter murder
The sole appellant before us was tried convicted and sentenced to death by the Sessions Court and confirmed by the High Court
It is a 301 case depending entirely on circumstantial evidence and the obvious contention is that the circumstantial evidence is wholly insufficient to bring home the guilt to the accused
No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned
Invariable in such cases a person last seen with the victim unless otherwise there are circumstances prima facie exonerating him would be the prime suspect but in the ultimate judicial adjudication suspicion howsoever strong cannot be allowed to take the place of proof
With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced
The deceased Disco alias Sukumari a girl aged 5 years was the daughter of P Ws 1 and 6 the father and the mother who were drummers by castes
They belong to village Badachatra an interior part of Mayurbhanj District
They had three children and the deceased was the eldest
In the year 1988 during Kalipuja time the accused who was the resident of Tulsibani village about one kilometre away came to the house of PWs 1 and 6
He named their newly born daughter
He took his meals in their house and went away saying that he would come with the new dresses for the newly born daughter
Next day ie on 91188 he came to their house in the morning with new dresses
He told the parents that he would take the deceased with him to Bombay Chhak to get new dresses for the other two children
He took his lunch and went with deceased towards Bombay Chhak
Sometime after his departure PW 6 told her husband PW1 to proceed to Bombay Chhak as the deceased might be crying
Accordingly PW 1 accompanied by one Sambhu proceeded towards that Chhak
On the way they met one Babuli and asked him whether he had seen the accused and the deceased to which he replied in the negative
PW 1 came back to the village and sat in the shop of PW 2 who informed that he had seen the accused going towards village Tulsibani alongwith the deceased
PW 1 and Sambhu then went to that village but could not find them there
Therefore they went to Jharpokharia Police Station and gave a report to the Officer in charge PW11 stating that the deceased
PW 1 again went to the Tulshibani Village where a person informed him that he has seen the accused going towards his house
PW 1 went there and enquired the accused
He told PW 1 that the deceased had gone back home but PW 1 caught hold of him but the accused squirmed away from his grip
PW 1 however again caught him and took him to his Village and according to PW 1 302 on being questioned the accused confessed to have raped and committed murder of the deceased
The accused is alleged to have pointed the place where he had thrown the dead body whereafter PW 1 and others proceeded in that direction
PW 11 the Police Officer also came in a jeep and took the accused into custody drew up FIR and sent the same to the Police Station for registration of a case
The accused is alleged to have led the Police party to the spot where the dead body was lying
PW 11 found the deceased lying with injuries on her vagina and other parts
He held the inquest in the presence of PW 4 and others and sent the dead body for post mortem
PW 7 conducted the post mortem
He noticed abrasions all over the body
He also found one bruise on the left side of the forehead and a lacerated wound of 25 cm x 1 cm x muscle deep starting from the posterior angle of vagina along the perinium upto the anus
On internal examination he found the following injuries 1 Soft tissues and muscles below the external injuries to the neck were contused with extra vassation of blood into the soft tissues
2 Heamatoma under the scalp corresponding to external injury No 11
3 The hymen was torn and the floor of the vagina ie vaginal channel was lacerated
This injury corresponds to external injury No 15
 The Doctor opined that all the injuries were antemortem and homicidal in nature and cause of death was due to asphyxia and shock as a result of strangulation and also due to injuries to the vagina
He also opined that the injuries on the neck suggest that the deceased was strangulated by pressure of hands
So far injury to the vagina is concerned he was of the opinion that the same could have been caused by forcible penetration of a male organ
The accused also was examined on 101188 itself by another Doctor PW 8 for some abrasions on his genital
PW 8 however categorically stated that on examining the accused he could not find any recent sign of sexual intercourse
The prosecution relied on some blood stains which were found on his dhoti but the accused explained away by saying that they were caused by the bleeding of his gums
The accused when examined under Section 313 pleaded not guilty
He however admitted that he went to the house of PW 1 but denied the rest of the case
303 The trial court did not accept the PW 1 s evidence regarding the extra judicial confession alleged to have been made by the accused
It held that nobody else has mentioned about this extrajudicial confession and at any rate it was supposed to have been made in the presence of the police
We have also examined the evidence of PW 1 as well as the evidence of the other witnesses
The trial court has rightly rejected this part of the prosecution case regarding the alleged extra judicial confession
As a matter of fact we do not find anywhere mentioned that such a confession was made by the accused to PW 1 neither in the FIR nor in the evidence of other witnesses who were also said to have been present when the accused was brought to the village by PW 1
PW 6 who is no other than the wife of PW 1 did not even mention about it
The trial court however relying on the other circumstances convicted the accused under Sections 302 and 376 IPC and sentenced him to death subject to confirmation by the High Court and for seven years  rigorous imprisonment for the offence of rape
The sentences are directed to run concurrently
The High Court confirmed the conviction and sentence awarded by the trial court
As already mentioned this case rests purely on circumstantial evidence
It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions 1 the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ii those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused iii the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused
In the leading case Hanumant and Another vs The State of Madhya Pradesh it is also cautioned thus In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof
It is therefore right to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused
Again the 304 circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved
In other words there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused
 Mahajan J as he then was has also aptly referred to a passage containing the warning addressed by Baron Alderson to the Jury in Reg vs Hodge which is stated as under The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little if need be to force them to form parts of one connected whole and the more ingenious the mind of the individual the more likely was it considering such matter to over reach and mislead itself to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete
 In Dharam Das Wadhwani vs State of Uttar Pradesh it was held that  unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction  In Jagta vs State of Haryana  it was held that The circumstances that the accused could not give trustworthy explanation about the injuries on his person and about his being present on the scene of occurrence are hardly sufficient to warrant conviction
 It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof
The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof
The Court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused
Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused along has committed the offence
305 The trial court relied on the following circumstances a Last seen  theory that the accused and the deceased were last seen together
b Conduct of the accused that the accused attempted to flee away when he could be seen at his village by PW1 c False explanation the accused when questioned gave false explanation regarding the whereabout of the deceased d Recovery of the dead body of the deceased on the showing of the accused That the accused pointed out the place where the dead body of the deceased was lying inside a paddy field e Presence of injury on the genital as well as stains of blood on the wearing apparel and nailclippings of the accused
 The evidence of PWs 1 2 and 6 are relied upon in support of the first circumstance namely that the deceased was last seen in the company of the accused
PW 1 the father and PW 6 the mother deposed that on the day of occurrence the accused came to their house and took the deceased towards Bombay Chhak to purchase new clothes
The accused only admitted to the extent namely that he had been to their house and denied the rest of the prosecution case
However we shall accept the evidence of PWs 1 and 6 to the effect that the accused took the deceased on that day to Bombay Chhak
But that by itself is not enough to conclude that the deceased was last seen in the company of the accused because even according to them on being enquired the accused told them that he sent the girl back in a truck
Even otherwise the distance between the two villages is not much
PW 2 s evidence however is relied upon that the deceased was going in the company of accused
PW 2 is also a native of the same village to which PWs 1 and 6 belong
He deposed that on a Wednesday he had been to village pond to take his bath at about 12 noon and while returning she saw the accused going towards east with a minor girl aged about 5 years but PW 2 does not say that the deceased was in his company
He however proceeded to depose that he found PW 1 searching for some one and thereupon PW 2 told him that he has seen the accused with a minor girl going towards the paddy field
He admitted that did not know whose daughter was in the company of the accused
In the cross 306 examination he further admitted that he did not talk to the accused
No doubt PW 2 s evidence to some extent corroborates the evidence of PWs 1 and 6 but unfortunately even at the stage of inquest this circumstance namely that the deceased was last seen in the company of the accused was not noted
We will advert to this aspect at a later stage
The important and crucial circumstance heavily relied upon by the prosecution is the alleged recovery of the dead body of the deceased on showing of the accused and the accused pointed the place where the body of the deceased was lying
For this again the prosecution relied on the evidence of lPWs 1 and 11
Having carefully gone through the evidence of PW 1 we find that he has improved his version from stage to stage
As already noted both the courts below were not prepared to place any reliance on his evidence regarding the extra judicial confession about which he made no mention at any earlier stage
As far as the recovery of the body is concerned PW 1 however deposed that he managed to catch hold of the accused and brought him to the village and that the police came in a jeep and took the accused into custody
Then all of them went towards paddy field which had been pointed by the accused and on search they found the dead body
PW 11 the Investigating Officer deposed at he went to village and found the accused to have been detained
He therefor prepared the FRI and sent the same for registration of the crime
Then he arrested the accused and his evidence and his evidence thereafter to put in his own words reads as under The accused pointed out the place where the dead body of the deceased was lying and thereafter led me to the paddy field wherefrom I could recover the dead body of the deceased Disco
As there were good number of persons present apprehending danger to the accused I sent him to the police station
During course of investigation I examined witnesses seized the dhoti MO iiiShirt MO iv and this chadi marked MOVII from the accused under the seizure list already marked Ext
The dead body of the deceased was lying in the paddy field where there were paddy plants which had been damaged and scattered
I held inquest over the dead body of the deceased Disco in presence of witnesses under the inquest report already marked Ext
I noticed INJURIES on the vagina and other parts of the body of the deceased
After inquest I sent the dead body for PM examination through constables
 307 According to this evidence the accused is alleged to have taken PW 11 and others to the open paddy field where the dead body was lying
It is only thereafter that the inquest report was drawn up
However PW 11 stated in his evidence that before going to the paddy field the FIR exhibit P 10 was drawn up by him
Surprisingly we find a mention about the discovery of the body in the FIR itself
But the same is not found in the inquest
There is not even a reference to the accused in the column No 9 of the inquest report where the information of witness as to the cause of death has to be noticed
We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been atleast a mention in the inquest report as to how the body was discovered
Apart from that usually a panchanama is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this case there is no such panchanama nor there is any other evidence of PWs 1 and 11
PW 6 does not say anything about this aspect
As a matter of fact the trial court has noted the discrepancies in the evidence of PWs 1 and 11 and it is observed as under The Investigating Officer PW 11 has stated something more about the find of the dead body
He speaks that the accused pointed out the place where the dead body of the deceased was lying and thereafter led him to the paddy field wherefrom the dead body of the deceased could be recovered
Though this part of this evidence has not been supported by PW 1but from the evidence of both PWs 1 and 11 coupled with the evidence of PW4 I am persuaded to hold that on the showing of the accused the dead body of the deceased was recovered from a paddy field
 We have perused the evidence of PW 4
His evidence does not in any manner incriminate the accused
PW 4 deposed that the dead body of the deceased was found lying in paddy field and that the police held inquest over the dead body in his presence and that the inquest report is P 1 in which he put his signature as a witness
Nothing more is stated by him
He does not even refer to the presence of the accused at the place where the dead body was found or at the time of inquest which was held also there
PW 4 does not in any manner help the prosecution case so far as this circumstance is concerned
If ready the body has been discovered at the instance of the accused there should have been discovered at the instance of the accused there should have been a panchanama and a mention about the same in the inquest report
PW 11 categorically in his evidence has stated that after sending the FIR the accused was questioned and the body was discovered there 308 after at the instance of the accused and the inquest was held over the dead body and PW 4 was a panch witness to the inquest and he also affixed his signature in the inquest report
But as mentioned above PW 4 does not say anything about the accused being present anywhere near the place where the dead body was found nor there is a reference to the accused in the inquest report
The only two remaining witnesses PWs 1 and 11 namely the father of the girl and the Investigating Officer respectively have contradicted each other
That is the type of evidence regarding this crucial circumstance
It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused
Having given our careful consideration we are of the firm opinion that the prosecution has not established this circumstance conclusively
On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence
We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report
Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt
However when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established then the other circumstances are hardly sufficient to establish the guilt of the accused
The courts below have also observed that the accused gave a false explanation
According to the prosecution case the accused is supposed to have stated to PWs 1 and 6 that he sent away the deceased in a truck
The courts below held that this explanation is false mainly on the surmise that a minor girl could not have come back on her own in a truck
We are not convinced that on this surmise alone we can hold that the accused has given a false explanation
It is not uncommon in villages for children to go about the field and walk short distances while coming back to the village
In any event the accused had given an explanation that he sent the girl back to the village in a truck and the same cannot be held to be not plausible and therefore false
Then the last circumstance relied upon by the courts below is the presence of some abrasions on the genital of the accused and presence of stains blood on the wearing apparels and nail clippings
The prosecution wanted to show that because of the penetration the accused sustained the abrasions on his penis
The Doctor PW 8 who examined the accused has stated that he found only two pin head abrasion on the genital of the accused and on examination he opined that he could not find any recent sign of sexual intercourse and he also 309 added that there was no such sign of having intercourse within one hour of his examination
However to a court question PW 8 stated that as a result of forcible sexual intercourse those abrasions can be possible
We are unable to see as to how this evidence in any manner is helpful to the prosecution
When PW 8 stated that he couldn t find any sign of sexual intercourse atleast within one hour of his examination then it is only a mater of conjectures as to when the accused had any intercourse
The accused is a man aged 57 years and it is not as if he was not used to sexual intercourse
In any event the prosecution has not established that the accused had an intercourse on the day of the occurrence
Then the presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused in any manner with the alleged offences
The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these blood stains
Even otherwise having given our earnest consideration we are not able to say that this last circumstance coupled with the circumstance of last seen in the company of the accused amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established
when such a main link goes the chain gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts
It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof
At times it can be case of may be true 
But there is a long mental distance between may be true  and must be true  and the same divides conjectures from sure conclusions
The least that can be said in this case is that atleast there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him
We are conscious that a grave and heinous crime has been committed but when there is no satisfactory proof of the guilt we have no other option but to give the benefit of doubt to the accused and we are constrained to do so in this case
Accordingly the appeal is allowed
The conviction and sentence of the accused is set aside and he shall be set at liberty forthwith if not required in any other case
TNA Appeal allowed


Summary:
The appellant Rourkela Sramik Sangh is a trade union in the Rourkela Steel Plant
It addressed a letter to the Implementation and Evaluation Officer cum Labour Commissioner under the Code of Discipline 1958 whereby it sought recognition as the sole bargaining agent in the Rourkela Steel Plant
For this purpose it requrested the Labour Commissioner to pass orders for immediate verification of the membership of all the trade unions operating in the Plant and to recommend for recognition of the union having majority of the membership
The Labour Commissioner as the Implementation and Evaluation Officer authorised the Deputy Labour Commissioner to carry out the process of verification of the membership of the registered trade unions who in turn passed orders calling upon the different trade unions to produce the necessary records
The Ist respondent Rourkela Mazdoor Sabha which is a rival union challenged by way of a writ petition the orders passed by the Labour Commissioner and the Deputy Labour Commissioner
At the same time the appellant union filed a writ petition seeking a direction to the Labour Commissioner and the Deputy Labour Commissioner to complete the process of verification and recognition within a stipulated time
The High Court by its common judgment allowed the Ist respondent s petition and dismissed the appellant s petition
The High Court held that since the appellant Union had addressed its application for recognition not to the Implementation Machinery but to the Implementation Officer the same was not properly made as the Implementation Officer had no authority to initiate the process of recognition
The decision of the High Court was based on the finding that the Implementation and Evaluation Officer was not the Implementation Machinery within the meaning of the Code of Discipline
400 Allowing the appeal and directing the Deputy Labour Commissioner and the Labour Commissioner to complete the proceedings of recognition as expeditiously as possible this Court HELD 1 The Implementation Machinery envisaged in section 11 of the Code of Discipline consists of two separate Organisations viz Implementation Units in the respective Labour Departments and Tripartite Implementation Committees at the Central State and local levels
Each of the Organisations has been assigned different functions and they are independent of each other while carrying out the same
Thus the constitutions of the Implementation units and Implementation Committee are different and they function in different areas
406H 407D 2 Since the Implementation UnitImplementation Officer entrusted with the task of granting recognition to the union in the State of Orissa was the Labour Commissioner of the State the appellant Sangh had rightly approached the Labour Commissioner for the purpose
409A 3 Since the State Labour Commissioner was named as the Implementation Officer who is none but the officer in charge of the Implementation Unit the State Labour Commissioner as the Implementation Officer has an option either to carry out the verification of membership himself or to entrust it to some other officer like the Deputy Labour Commissioner as in the present case
That was only an entrustment of a ministerial work
409D 4 The Deputy Labour Commissioner in the present case is the Verification Officer and under clause 10 of Appendix IV he has to send his report to the Implementation Officer or Unit ie the State Labour Commissioner and the State Labour Commissioner will in turn communicate his decision as the State Implementation Machinery to the management as well as the Unions
409E 5 The High Court was wrong in holding that the Implementation Unit or the Labour Commissioner was not the Implementation Machinery but only a Verification Officer
409C