N Criminal Appeal No 294 of 1991
422 From the Judgment and Order dated 1041990 of the Punjab  Haryana High Court in Crl
No 3635 of 1989
RS Suri for the Appellant
Brijender Chahar and Ashok Mathur for the Respondent
The following Order of the Court was delivered We have heard the learned counsel for the parties
The delay in filing the special leave petition is condoned and leave is granted
The respondent who was undergoing sentence of life imprisonment had served a period of eleven and an half years when he made an application for pre mature release
The Punjab and Haryana High Court by the impugned order issued a direction to release the respondent on bail observing further that if his mercy petition which was pending is dismissed he will have to surrender
The High Court has not taken into consideration the provisions of Section 433A of the Criminal Procedure Code while passing the order
A week back we have allowed a criminal appeal against a judgment of the Punjab  Haryana High Court in another case directing pre mature release on account of good conduct of the respondent in jail serving a life sentence although he had actually been in jail for a period of nine years only
We set aside the order as the provisions under Section 433A had not been taken into consideration and remitted the matter to the High Court for reconsideration in accordance with the provisions of Jail Manual
The learned counsel for the respondent in the present appeal attempted to distinguish the case on the ground that here the respondent has been only enlarged on bail and has not been finally released
We do not think that Section 433A which is quoted below is inapplicable in the present case Restriction on powers of remission or commutation in certain cases Notwithstanding anything contained in Section 432 where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life such person shall not be released from prison unless he had 423 served at least fourteen years of imprisonment emphasis supplied The respondent in his writ petition before the High Court relied upon three instructions Annexures P 1 to P 3 in support of his claim that he is entitled to pre mature release
Earlier the High Court had directed the mercy petition pending before the Governor to be decided within a period of three months
This was not done and a reply was filed on behalf of the State explaining the circumstances under which the matter remained pending
In this background the impugned order was passed
The judicial proceeding dealing with the conviction and sentence of the accused had been earlier concluded and the order of his release on bail was passed while finally disposing of the writ petition alleging delay in disposal of the mercy petition
In other words no case in now pending before the Court and it cannot be suggested that the order of the respondent s release on bail has been passed as an interim measure pending the decision of a case before the Court
In such a situation the provisions of Section 433A are attracted
The words in the Section quoted above and underlined by us are wide in their application and cannot be restricted as suggested by the learned counsel for the respondent
We therefore allow the appeal set aside the impugned judgment and remit the case to the High Court for reconsideration of the writ petition confined to its limited scope in accordance with law
The respondent shall surrender without delay and only thereafter he shall be allowed to press his application before the High Court
NPV Appeal allowed


Summary:
The appellant was tried for rape and murder of a girl aged five years
The entire evidence against him was circumstantial a the accused and the deceased were last seen together b false explanation given by the accused regarding the whereabouts of the deceased c alleged recovery of the dead body of the deceased at the instance of the accused and d presence of abrasions on the genital of the accused as well as blood stains on his wearing apparels and nail clippings
Relying on the circumstantial evidence the Trial Court convicted him under Sections 302 and 376 and sentenced him to death for the offence of murder and seven years rigorous imprisonment for the offence of rape
The High Court confirmed the conviction and the sentence awarded by the Trial Court
In appeal to this court it was contended on behalf of the appellant that the circumstantial evidence is wholly insufficient to bring home the guilt of the accused
Allowing the appeal this Court HELD 1
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 nerringly 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 303E F
299 Hanumant and Anrv
The State of Madhya Pradesh  Reg vs Hodfe 1838 2 Lew227 Dharam Das Wadhwani vs State of Uttar Pradesh and Jagta vs State of Haryana   referred to
2In 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 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 Court must satisfy itself 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
304 G 309E F 3In the instant case the circumstance that the deceased was last seen in the company of the accused is not established beyond reasonable doubt
This circumstance was not mentioned in the Inquest Report prepared by the Investigating Officer
Further the statement of the parents of the deceased that the accused took the deceased girl by itself is not enough to conclude that the deceased was last seen in the company of accused because even according to them on being inquired the accused told them that he had sent the girl back in a truck
308C 305F 31 The prosecution has not conclusively proved the crucial circumstance of the recovery of the dead body of the deceased girl at the instance of the accused
No Panchnama was prepared for such a discovery under Section 27 of the Evidence Act and there is no mention in the Inquest Report as to how the body was discovered
On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence
Once it is held that the crucial circumstances namely the discovery of the body at the instance of the accused is not established than the other circumstance are hardly sufficient to establish the guilt of the accused
308B C D 306B 307C 32 The explanation given by the accused that he sent the girl back to the village in a truck cannot be held to be not plausible and therefore false because it is not uncommon in villages for children to go about the fields and walk short distance while coming back to the village
308E 300 33 The prosecution has also not established that the accused had an intercourse on the day of the occurrence
When the doctor who examined the accused stated that he could not find any sign of sexual intercourse atleast within one hour of his examination then it is only a matter of conjectures as to when the accused had any intercourse
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 this circumstance coupled with the circumstance of last seen in the company of the accused would not 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
Therefore there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him
Accordingly the conviction and sentence of the accused is set aside
309B C F G