JUDGMENT [ENTITY], J.
1. The appellant-[ENTITY] has filed this appeal challenging the judgment and order of conviction and sentence dated 26-9-1991 passed by the learned Additional Sessions Judge, Bhavnagar, in [CASE NUMBER], convicting him for the offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] and sentencing him to suffer R. I. for life for the offence under [SECTION]; R. I. for seven years and to pay a fine of Rs. 500/- in default to undergo further R. I. for six months for offence under [SECTION], and R. I. for three years and to pay a fine of Rs. 250/- in default to undergo further R. I. for three months for offence under [SECTION]. The learned Judge has ordered the substantive sentences to run concurrently.
2. The facts giving rise to the present appeal can briefly be summarised as under:
The appellant, at the relevant time, was serving as an Apprentice Supervisor with Excel Industries Ltd., Bhavnagar. The appellant also used to give part-time tuition in the evening from 5-00 p.m. to 6-00 p.m. to deceased [ENTITY], who was studying in IXth standard and her brother [ENTITY], who was studying in VIIth standard. Thereafter, deceased [ENTITY] used to attend typing class from 6-00 p.m. to 7-00 p.m. It is the prosecution case that the appellant was giving tuition to deceased [ENTITY] since last three years prior to the date of the incident. The prosecution case is that because of the intimacy developed between the appellant and deceased [ENTITY], the appellant used to have sexual intercourse with her with the result [ENTITY] had conceived 5 to 6 months' pregnancy at the time of her death. It is alleged by the prosecution that on 13-5-1990 (sic. 13-7-1990) at 5-30 p.m. deceased [ENTITY] returned from the house of the appellant after attending tuition. Much against her reluctance, at the instance of her father [ENTITY], PW 1, [ENTITY] went to the typing class but did not return home. So her mother [ENTITY], PW 2, started making inquiries about her whereabouts along with her brother [ENTITY], PW 5. They also made inquiries with [ENTITY], PW 11, and [ENTITY], PW 12 - the uncle ([ENTITY]) and maternal uncle (Mama), respectively, of deceased [ENTITY]. Despite hectic search, [ENTITY] could not be traced. Therefore, [ENTITY] filed complaint before Bhavnagar "B" Division Police Station on 14-7-1990 for missing of the girl [ENTITY].
3. It appears that on 17-7-1990 a news item appeared regarding find of a dead body of a girl at Platform No. 8 of Ahmedabad Railway Station on 14-7-1990. Pursuant thereto [ENTITY] and other relatives of deceased [ENTITY] came to Ahmedabad and inquired from the Railway Police and ultimately identified the dead body as that of girl [ENTITY]. They thereafter returned to Bhavnagar with the dead body. [ENTITY], PW 18, of Bhavnagar "B" Division Police Station, who was in charge of the investigation, in the meantime arrested the appellant and after completion of the investigation, on the basis of the material collected against the appellant, the Investigating Officer filed a charge-sheet.
4. The learned Additional Sessions Judge, Bhavnagar, framed charge, Ex. 3, against the appellant to which the appellant-accused pleaded not guilty and claimed to be tried. The learned Additional Sessions Judge, after appreciating the evidence on record, including the statement of the appellant recorded under [SECTION] of the [ACT], found the accused-appellant guilty of the charge levelled against him and convicted and sentenced him as stated in the first paragraph of this judgment.
5. Mr. [ENTITY], learned Advocate, appearing for the appellant, after having taken us through the evidence of the prosecution witnesses on record, made broad submission that the prosecution has failed to establish beyond reasonable doubt the chain of circumstances leading to the commission of the offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] by the appellant. In the submission of Mr. [ENTITY], the conviction of the appellant is based on assumptions, surmises and conjectures. Mr. [ENTITY] finally submitted that even if the circumstances used against the appellant are accepted on their face value, the same at best can merely raise a suspicion against the appellant and for that the appellant cannot be convicted. He, therefore, prayed for allowing the present appeal.
6. Mr. [ENTITY], learned Additional Public Prosecutor, on the other hand, has supported the judgment of the learned trial Judge in toto.
7. The prosecution, in order to bring home the guilt of the accused-appellant, has led the evidence of:
1. [ENTITY], PW 1, Ex. 28, father of deceased [ENTITY];
2. [ENTITY], PW 2, Ex. 30, mother of deceased [ENTITY];
3. [ENTITY], PW 5, Ex. 37, maternal uncle (Mama) of deceased [ENTITY];
4. [ENTITY], PW 12, Ex. 50, paternal uncle (Fua) of deceased [ENTITY], and
5. [ENTITY], PW 13, Ex. 51, brother of deceased [ENTITY].
On the basis of the evidence of the aforesaid witnesses, the prosecution has tried to establish that:
(a) the appellant was giving tuition to deceased [ENTITY] and her brother [ENTITY];
(b) [ENTITY] was found missing from 13-7-1990 evening, and
(c) the find of the dead body of [ENTITY] on 14-7-1990 at Platform No. 8 of Ahmedabad Railway Station.
8. The second set of evidence consists of the employees of Excel Industries Ltd., where the appellant, at the relevant time, was serving as Apprentice Supervisor. They are : (1) [ENTITY], PW 12, Ex. 52, the Production Engineer, and (2) [ENTITY], PW 16, Ex. 56, the Senior Officer of the company. With their evidence, the prosecution has tried to prove that the company was manufacturing insecticides, including [ENTITY], which was recovered from the dead body of deceased [ENTITY] at the time of post-mortem examination, and the appellant had applied for leave from 14-7-1990 to 16-7-1990.
9. The third set of evidence consists of Railway Police Constable [ENTITY], PW 6, Ex. 38 and one tea-stall boy [ENTITY], PW 17, Ex. 68. By their evidence, the prosecution has tried to establish that the deceased [ENTITY] was found sitting on a bench at Platform No. 8 of Ahmedabad Railway Station in the early hours of 14-7-1990 and was vomiting and that a report regarding her death was made by the Railway Police and necessary inquest panchnama of the dead body was drawn on the same day. Apart from this evidence, the prosecution has also relied on the evidence of Dr. [ENTITY], PW 3, Ex. 32, who performed the postmortem examination of the dead body of deceased [ENTITY]. Over and above this evidence, there is also the evidence of Investigating Officer [ENTITY], PW 18, Ex. 66.
10. In view of the undisputed facts on record, viz., that the deceased and her brother [ENTITY] were going to the house of the appellant for tuition; that the deceased had not returned home from tuition in the evening of 13-7-1990, and since Prosecution Witness Nos. 1, 2, 5, 11, 12, and 13 have merely stated about the attempts they had made to trace the girl from 13th July, 1990 onwards, it is not necessary for us to narrate their evidence in detail. We, however, would like to narrate only the relevant versions of their evidence.
11. [ENTITY] PW 1, in his evidence has stated that before they shifted to Quarter No. 10A of L.I.G. Quarters on 1-6-1990, he and his family were residing in Hudco Quarter No 252. According to him, [ENTITY] was aged 15 years on the date of the incident. He further stated that he had given a statement before the Police that the birth date of [ENTITY] was 22-5-1975. According to him, the appellant was giving tuition to his daughter [ENTITY] and son [ENTITY]. According to him, the appellant was also staying in a quarter of Hudco, which was at one to two minutes' walking distance from his quarters where he was previously residing. He has stated that on 13-7-1990, both, his daughter and son, had returned from the tuition and thereafter his daughter [ENTITY] had gone to attend the typing class without taking cycle. She had put on blue coloured frock. According to him, his wife had gone to the house of the appellant to inquire about [ENTITY] in the night of 13th. However, he was not sure whether the appellant was there at his house or not. He has further stated that on 15-7-1990 his younger brother [ENTITY] and [ENTITY] the father of the appellant, had gone to Ahmedabad and on return his younger brother informed him that the appellant met them at the residence of his maternal uncle at Ahmedabad and was looking perturbed. According to him, [ENTITY] was seen disturbed since about one and half months, was running temperature and was frequently vomiting. [ENTITY] is duly corroborated by [ENTITY] in all material particulars. [ENTITY], PW 2 - the mother of [ENTITY], in her evidence, has stated that she had also inquired about [ENTITY] from the parents of the appellant and on being inquired from them about the whereabouts of the appellant, they replied that the appellant has gone to Ahmedabad. It is true that in her cross-examination, she has stated, she has not stated in her previous statement that she went to the house of the appellant and inquired from his parents and was told that the appellant has gone to Ahmedabad. However, she has maintained that she was informed that the appellant had gone to Ahmedabad for the purpose of interview. She corroborates the evidence of her husband [ENTITY] by stating that [ENTITY] used to remain under tension and, therefore, they suspected that she might have committed suicide. Regarding the location of the house of the appellant, she has stated that the height of the terrace of the house of the appellant is about 15 to 17 feet and that it is not possible to hear the talks of the person sitting in the terrace.
12. PW 13, [ENTITY] the brother of deceased [ENTITY], in his evidence, has more or less corroborated the evidence of his parents. According to him, he and his sister were taking tuition from the appellant since last three years. He has stated that he used to go with his sister for tuition. However, according to him, sometimes the appellant used to call his sister alone. Even though he has stated that sometimes [ENTITY] was called even at night for tuition, we may not give any importance to this person as the said fact is not stated either by his father or mother. According to this witness, the appellant used to give coaching to his sister while sitting on the terrace whereas to him was giving tuition in the room of the house. When inquired from the appellant as to why they are being separated to which the appellant replied that as he is still young, he should sit downstairs. According to him, sometimes when he was asked to sit downstairs for tuition, he used to go away for playing and that he had never visited the terrace. According to him, he could see their heads in the terrace from a distance outside the house when he used to go away for playing. According to him, on 13-7-1990, his sister [ENTITY] alone had gone for tuition at the house of the appellant and had returned home at about 5-30 p.m. Thereafter, she had gone to the typing class. Typing class is at a walking distance of about 15 to 20 minutes and [ENTITY] used to go to the typing class on cycle. However, on that day she had not gone on cycle. In his cross-examination, he has stated that the father of the appellant is a tailor and is having his own shop. According to him, sometimes he used to do tailoring work at home also.
13. Since the appellant has been convicted under [SECTION] [ACT], the first question that arises for consideration is whether the appellant is responsible for committing the said offence ? In view of the post-mortem report, Ex. 33, it is an established fact that deceased [ENTITY] was running 4th to 5th month of pregnancy at the time of her death. In view of the evidence on record, namely, that the appellant was giving tuition to deceased [ENTITY] and her brother [ENTITY], PW 13, since three years, it would not be out of place to state that the intimacy between the appellant and the deceased was developed. In view of the cogent evidence of PW 13, [ENTITY], that the appellant used to give coaching to deceased [ENTITY] on the terrace while asking [ENTITY] to sit in the room of the house, would further go to suggest that the appellant and the deceased had ample opportunities to meet alone atleast for one hour daily on the terrace.
14. Mr. [ENTITY] submitted that in view of the fact that [ENTITY] used to go to typing class, the possibility of her having relationship with any other male person cannot be ruled out. In absence of any suggestion either to the mother or to the father of [ENTITY], we would not like to give any importance to the argument of Mr. [ENTITY]. Mr. [ENTITY] further submitted that if [ENTITY] had any illicit relation with the appellant, she could have informed atleast to her mother and, in any case, her mother could have noticed some sign of pregnancy. Now, as stated above, the deceased was running 4th to 5th month of pregnancy at the time of her death, i.e., in the month of July, 1990. In that case in the month of February or March, 1990 the appellant and the deceased must have entered into sexual relation. It has come in the evidence that prior to a month or a month and half to her death, [ENTITY] was taken to the doctor as she used to remain under tension and was also vomitting. In view of the fact that the deceased used to remain under tension, it is quite possible that she might not have informed her own mother, as none would like to disclose about her own illicit relations. As can be seen from the inquest panchnama, Ex. 7, the deceased was a short and thin girl of 4'-4" height. Even the Panchas have also not noticed the physical development on account of foetus. If that is so, it is quite possible that [ENTITY], mother of the deceased, might not have noticed such physical development. It is difficult to answer as to why the deceased had not informed her parents about her illicit relationship with the appellant. Equally it is also difficult to answer as to why the appellant had not informed his parents or the parents of [ENTITY] and shown his desire to marry [ENTITY]. If either of them had informed his or her parents about their affairs, this tragic and unfortunate death of [ENTITY] could have been avoided. If other circumstances, which are strong enough to connect the appellant with the fact of developing intimacy with [ENTITY] while giving tuition to her and taking her to terrace alone while making her brother to sit downstairs in the room, there need not be any direct evidence of rape. The circumstances in the present case are sufficient enough to connect the appellant with the crime. Considering the evidence narrated hereinabove, it can safely be concluded that it was the appellant and appellant alone who is responsible for the commission of the offence of rape punishable under [SECTION] [ACT]
15. The second part of the incident took place at Platform No. 8-9 of Ahmedabad Railway Station when [ENTITY] was found on the bench of the Platform. [ENTITY], PW 17, Ex. 64, was selling tea on commission basis at the tea-stall at Ahmedabad Railway Station. According to him, at about 6-00 a.m. a train had come from Somnath on Platform No. 8. When he was moving on the platform for selling tea, he saw a girl sitting on the bench and vomitting. She was demanding water from the tea-vendor. According to him, water was not given to that girl in his presence, but after seeing the girl he had gone to Platform No. 10 at his canteen for cleaning. At about 8-00 a.m., police came to his stall and inquired about whatever he had seen. Nothing substantial has been taken out from his cross-examination, except that the girl had in fact demanded water from him.
Railway Police Head Constable [ENTITY], PW 7, Ex. 38, was on duty on 14-7-1990 at Ahmedabad Railway Station. According to him, he received a memo from Ahmedabad Railway Station Master informing him that a dead body of a girl aged about 18 to 20 years is lying at Platform No. 8-9. In view of this information, he had gone there, registered the offence of accidental death, drawn an inquest panchnama, Ex. 7, and sent the dead body to Civil Hospital for post-mortem examination.
16. Dr. [ENTITY], PW 3, Ex. 32, who was working as a Tutor with the Forensic Medicine Department in Civil Hospital, Ahmedabad and who performed the post-mortem examination of deceased [ENTITY], found the following external and internal injuries on the person of the deceased:
External injuries:
1. Abrasion over right elbow hosterolateral aspect size about 0.5 cm. diameter. Red in colour.
2. Abrasion over left elbow hosterolateral aspect, size about 0.5 cm. Red in colour.
3. Bruise over right cheek lower part about 6.5 cms. away from sumphysus miercti (chin) size about 2.5 cms. x 2.0 cms. It is dark-red in colour.
4. Bruise over upper lip inner surface middle part, size about 2.5 cms. x 1.2 cms. Dark-red in colour.
5. Bruise over lower lip inner surface size about 3.0 cms. x 1.5 cms. Dark-red in colour.
6. Bruise over tip of tongue lower surface size about 3.0 cm. x 0.5 cms. Dark-red in colour.
Internal injurries:
1. Bruising of sealp found over Rt. frontal region, size about 4.0 cms. x 3.5 cms. Dark-red in colour.
2. Bruising of sealp found over Lt. parietal anterolateral part size about 6.0 cms. x 4.0 cms. Dark-red in colour.
3. Loosening of Lt. parietofrontal suture is found near pterion for about 3.2 cms. length.
4. Brain is congested and oedemagous patary subarachnied - haemorrhages found over both frontal lobes anterior aspect and left parietal lobe lateral aspect and medical surface of left cerebral.
He had noticed that the stomach contained about 80 c.c. whitish chalky fluid having smell of some insecticide. The stomach mucosa was congested in inflammed and showed haemorrhagic fatches. The stomach content was tinged. It was also noticed that the proximal part of small intestine was congested and haemorrhagic and it showed presence of whitish blood tinged and the fluid having smell of insecticide. Rest of the small intestine was empty. The large intestine showed presence of faceal matter. He took out white liquid from stomach as well as intestine and sent them for chemical analysis. Dr. [ENTITY] in his cross-examination was shown Chemical Analyser's Report, Ex. 9, and on the basis thereof he opined that the deceased died because of conjunction of insecticide and consequential failure of respiration system. According to him, injury Nos. 1 and 2, which are abrasion over right elbow and abrasion over left elbow are possible when a person comes in contact with hard and blunt substance. Similarly injury Nos. 3, 4, 5 and 6, which are bruises over right cheek, bruise over upper lip, bruise over lower lip and bruise over tip of tongue are also possible when a person comes in contact with hard and blunt substance. Dr. [ENTITY] has further stated that injury No. 3, which is bruise over right cheek is possible when a cheek of the person is pressed with thumb. Similarly injury Nos. 4 and 5 are also possible, if somebody presses mouth with hand or in any other manner. In his cross-examination, Dr. [ENTITY] has ruled out the possibility of injury No. 3 if one wants to open the stopper of the door of the railway compartment.
However, he has admitted that the said injury No. 3 is possible if the cheek is dashed against hard substance and it is also possible if the person dashed against the bag of a passenger. It is also possible if a person is dashed against the sleeping berth of the compartment. However, in his opinion, all the injuries are not possible in such a manner. Due to uneven speed of the train, if a person is dashed against the door of the compartment, internal injury Nos. 2 and 3 are possible. Dr. [ENTITY] has denied that because of culversion external injury Nos. 4 and 5 are possible. He has also denied the suggestion that injury Nos. 3 and 4 are possible when a person has consumed poison. He has further denied the suggestion that if somebody presses his thumb on the cheek, there would be marks of fingers on the cheek. Finally, Dr. [ENTITY] has opined that since 80 c.c. of poison was consumed by the deceased, the same can be by use of force or on her own volition.
17. Ex. 19 is the report of the Chemical Analyser. The Chemical Analyser was required to perform the test when he was sent with following four bottles:
Bottle 1 : Stomach with contents, intestine one foot with contents.
Bottle 2 : Piece of liver, spleen and half of each kidney.
Bottle 3 : Blood about 120 c.c.
Bottle 4 : Poisonous medicine taken from Excel Industries plant in connection with [CASE NUMBER] of Bhavnagar B Division Police Station.
The report of the Chemical Analyser clearly states that [ENTITY] achlorinated poisonous insecticide was detected in all the four bottles. Since [ENTITY] achlorinated poisonous insecticide was detected in all the four bottles, let us consider the evidence of the two officers of Excel Industries which manufacture insecticides, including [ENTITY].
18. [ENTITY], PW 14, Ex. 52, who was working as Production Engineer with Excel Industries has stated in his evidence that the company is manufacturing [ENTITY] which is a poisonous insecticide. According to him, if an employee wants any drug, he cannot take away the insecticides from the plant of the company. However, there is no checking of the workers in the plant. In his cross-examination, he has stated that the products of the company are easily available in the market and he is not sure regarding the requirement of the prescription. He has stated that there are four gates of the company of which one remains closed and at the remaining three gates there are security guards and the workers are being checked by the guards. According to him, the price of one 100 Ml. [ENTITY] bottle is Rs. 14/-. He has finally stated that in [ENTITY] plant, where he is working, there are no security guards posted.
One more witness of the company is [ENTITY], PW 16, Ex. 56, who was working as Senior Officer with the Excel Industries. In his evidence, he has stated that the appellant was serving as a Apprentice Supervisor. According to him, if an employee reports late, he has to fill in form of short leave and accordingly on 16-7-1990, the appellant had filled in the form by signing the same. The appellant had reported on duty at 9-00 O'clock morning instead of 7-00 O'clock. He has further stated that the appellant had applied for leave from 14-7-1990 to 16-7-1990 on the ground of his ill-health and had produced a report vide Ex. 58.
19. At this stage, we may also make a mention of the fact that the appellant was called for interview by the Railway Recruitment Board for the post of Signal Inspector, Grade III, scheduled to be held at Ahmedabad and the appellant had, in fact, appeared at the said interview on 15th July, 1990. This can be seen from the certificate, Ex. 15, dated 20th July, 1990 issued by the Chairman, Railway Recruitment Board. Ex. 16 is the interview call issued by the Railway Recruitment Board along with the two railway tickets for outward and return journey validated for travel between 12th and 18th July, 1990. It is pertinent to note that for any reasons both these tickets were not used. However, the fact remains that the appellant had appeared at the interview held on 15th July, 1990.
20. With this evidence on record, the question that arises for consideration is, whether the death of [ENTITY] was a homicidal death or a suicidal death. Mr. [ENTITY], learned Advocate for the appellant, has vehemently submitted that the death of [ENTITY] is a case of suicidal one as the presence of the appellant is not at all established at the time when she left for Ahmedabad or at any time at Ahmedabad Railway Station. In his submission, admittedly, [ENTITY] used to remain in a disturbed state of mind since last one month or a month and half before her death because of unwanted pregnancy. Therefore, in his submission, the possibility of [ENTITY] having committed suicide cannot be ruled out. It is not possible to accept the submission of Mr. [ENTITY]. There is no dispute to the fact that on 13-7-1990 [ENTITY] attended the tuition and was with the appellant upto 5-30 p.m. Thereafter, she had gone to typing class. Although [ENTITY] used to go to typing class on cycle, on 13-7-1990 she had gone without cycle, which was an unusual conduct on the part of [ENTITY]. The fact that a large quantity of [ENTITY] was recovered from her stomach and small intestine would go to suggest that it was the appellant who possibly supplied the said insecticide as it was known to him and could easily get the same from the factory where he was working and which was manufacturing the said insecticide. If at all [ENTITY] wanted to consume poison of her own volition, she could have opted for any other insecticide like Tik-20, which is very common. It is difficult to understand as to how a girl studying in 9th standard could purchase an insecticide, i.e., [ENTITY], even from open market. Even if it is assumed that deceased [ENTITY] obtained the bottle of [ENTITY] by herself, she could have ended her life at Bhavnagar itself and there was no need for her to go to Ahmedabad on 13th itself on which day, it has come into evidence, the appellant had also gone to Ahmedabad for attending to the interview call. Normally, a person who wants to commit suicide would like to avoid crowd and would definitely search for a lonely place. For this reason, it can safely be concluded that it was not her individual decision to board the train for Ahmedabad on 13th July 1990 but she was persuaded to go to Ahmedabad (probably for abortion purpose). Assuming that [ENTITY] boarded the train alone, even in that eventuality also, she had not consumed the poison immediately when the train left Bhavnagar. This was with a view to avoid the presence of passengers and to get an appropriate time. Even if she consumes poison in presence of crowd, her subsequent behaviour of undergoing restless night and vomiting would have been bound to be noticed by the passengers. Therefore, it is quite possible that she consumed poison no sooner the train reached Ahmedabad. The fact that while vomitting she was demanding water when she was on the bench at platform No. 8-9 would further go to show that she had no desire to leave this world abruptly. These are the circumstances which, in our opinion, would go to suggest that deceased [ENTITY] did not commit suicide but it was a homicidal death. If it was a homicidal death, then another question that arises for consideration is, how far the appellant is responsible for it ?
21. Mr. [ENTITY], learned Advocate for the appellant, has pointed out that the prosecution has failed to establish the motive on the part of the appellant to commit murder of [ENTITY]. He has further submitted that the prosecution has failed to establish that [ENTITY] became pregnant because of her illicit relations with the appellant. Regarding presence of the appellant with [ENTITY] either on 13-7-1990 or 14-7-199, Mr. [ENTITY] submitted that there is no evidence worth its name that the appellant was last seen with the deceased [ENTITY] after the tuition was over at 5-30 p.m. It is also submitted that there is no evidence to show that the appellant and the deceased travelled from Bhavnagar to Ahmedabad by the same train. In substance, Mr. [ENTITY] submitted that there is no evidence that the appellant and the deceased being last seen together. It is further submitted by Mr. [ENTITY] that there is no material to show that the appellant forcibly administered poison to the deceased. Finally, Mr. [ENTITY] highlighted the subsequent conduct of the appellant by submitting that the appellant was absolutely normal after the incident as he, in fact, appeared at the written test at Ahmedabad on 15-7-1990 and resumed duty at Bhavnagar on 16-7-1990. In view of these circumstances, he submitted that many links are missing in the chain of circumstances in the present case and, therefore, the appellant deserves to be acquitted.
22. Having closely scrutinised the evidence on record, we are convinced beyond any manner of doubt that there is sufficient material on record to connect the appellant with the crime of committing murder of deceased [ENTITY]. We have discussed in the foregoing paragraphs of this judgment that the appellant had sufficient opportunities to have illicit relations with [ENTITY] and had, in fact, availed of such opportunities. [ENTITY] and her brother [ENTITY] were coming for tuition since three years to the house of the appellant. The intimacy which was developed between the appellant and [ENTITY] continued till the death of [ENTITY]. A very vital circumstance, which goes against the appellant, is required to be noted at this stage. It has come in the evidence that though both brother and sister were coming for tuition, [ENTITY] alone was asked to sit on the terrace while her brother was asked to sit in the room downstairs. When [ENTITY] asked as to why they are separated, the appellant had the audacity to reply to the same by saying that he was still young. In absence of any suggestion that the deceased was having any illicit relations with any other boy and was having sexual intercourse with that boy, we have no hesitation in concurring with the finding recorded by the learned Judge to the effect that it was the appellant and appellant alone who was responsible for conceiving pregnancy to deceased [ENTITY]. Realising this difficulty in the way of the appellant, the appellant had only three options either to inform their parents and marry with [ENTITY], or to go for abortion, or to get rid of [ENTITY] for ever. He, therefore, took [ENTITY] to Ahmedabad with him when he had gone for interview, may be under the pretext of her abortion, administered [ENTITY] to her and left her alone at Ahmedabad Railway Station. There is nothing on record which would suggest that either the appellant or the deceased decided to opt for the first option. If that is so, in that event, the only course open for them was to undergo abortion at any other place other than Bhavnagar as many relatives are residing in Bhavnagar. However, as the appellant received interview call for 15-7-1990 from the Railway Recruitment Board, and 15th being Sunday, they decided to go to Ahmedabad on 13th so that on Saturday, she could have been operated for abortion. With this plan in mind, the possibility of the appellant having taken [ENTITY] with him by the night train of 13th from Bhavnagar and for reaching Ahmedabad on 14th morning cannot be ruled out. This is particularly in view of the fact that normally the deceased used to go to typing class on bicycle but on this particular day she left home without bicycle. Considering these circumstances, we are of the opinion that the appellant had, in fact, a strongest motive either to get rid of [ENTITY] or to go for abortion of the pregnancy conceived by her. The fact that the appellant had not used the free railway tickets for outward and return journey, issued for the purpose of attending to the interview call, is again a vital circumstance which goes against him inasmuch as if he had used the ticket from Bhavnagar to Ahmedabad and vice-versa, there would have been endorsement on the ticket that the appellant travelled on 13th which would have easily established his presence at the railway platform on 14th. It was for this reason, according to us, that the appellant had not used the free railway tickets issued by the Board. The appellant having not done so, the conclusion is obvious that he did not want to establish his presence along with deceased [ENTITY] in the morning of 14th July 1990 at Ahmedabad Railway Station. It is also pertinent to note that the appellant did not apply for leave from his employer at Bhavnagar either on 13th or on 14th but he filed application on the day he resumed duty on 16th for leave. These are all strong circumstances against the appellant which would throw light on his well-planned intention to commit a crime. One more circumstance is the recovery of [ENTITY] from the stomach and small intestine from the dead body of deceased [ENTITY]. As noted above, this drug was known to the appellant and it was easy for him to get in small quantity. Here also he had taken precaution of not purchasing the said insecticide from the open market just with a view to avoid his involvement or being identified by anybody. There would not be any direct evidence regarding his presence with deceased [ENTITY] while reaching Ahmedabad, but the circumstances are so eloquent and strong enough against the appellant for his involvement in the commission of the crime. In view of these circumstances, there is no manner of doubt that the appellant and the deceased travelled from Bhavnagar to Ahmedabad by the night train of 13th July 1990 and reached Ahmedabad in the early morning of 14th July, 1990.
23. It is reasonable to infer that the appellant was waiting for the time so that he could make the deceased to consume the bottle of [ENTITY] brought by him. This could not have been possible when they boarded the train at Bhavnagar when there were other passengers in the train. When the train arrived at Ahmedabad and the passengers got down from the compartment, the appellant and the deceased remained alone in the compartment, and it is at this stage that the possibility of the appellant persuading the deceased to consume the bottle of [ENTITY] on misrepresentation that it was a medicine brought by him for the purpose of abortion, cannot be ruled out. It is also pertinent to note that about 80 c.c. of [ENTITY] was recovered from the body of the deceased meaning thereby that she must have consumed the drug at the instance of the appellant with a view to get rid of the unwanted pregnancy. It is also possible that she could not have liked the test of the liquid but while consuming the same with reluctancy (sic.) the appellant could have pressed his thumb on the cheek so that her mouth could remain open so that she could consume the whole dose as this is evident from the bruise injury on the cheek. Dr. [ENTITY] has stated that such an injury is possible when one presses his thumb on the cheek. After finishing the crime, it is quite possible that the accused might have left leaving the deceased unattended on her own fate. However, because of the consumption of large quantity of [ENTITY], the possibility of deceased becoming restless sustaining skull injuries on her left and right frontal region cannot be ruled out since according to the doctor these injuries were possible if the deceased had dashed with the doors or the compartment etc.
24. The aforesaid circumstances, in our opinion, are sufficient to connect the appellant with the crime and we, therefore, hold that the appellant alone is responsible for causing death of deceased [ENTITY].
25. As regards the submission of Mr. [ENTITY] regarding the subsequent conduct of the appellant after the crime the appellant was normal as he had appeared at the oral test on the next day, i.e., on 15-7-1990 and had thereafter resumed duty at Bhavnagar on 16-7-1990, we can only say that it is difficult to know and understand the human mind and its behaviour after committing crime. There cannot be any hard and fast rule regarding the behaviour of a human and to observe that a particular person shall behave only in a particular manner after his involvement in the offence. Merely because the appellant had appeared at the interview on the next day, that fact by itself would not be sufficient to prove his innocence. Our attention was invited by Mr. [ENTITY] to the decision in [PRECEDENT] and more particularly the following observation of [ENTITY] to the Jury in [PRECEDENT]:
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 matters, to overreach 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.
After quoting the aforesaid observation, the Supreme Court has observed that:
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 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.
26. In [PRECEDENT] , the Supreme Court has laid down the conditions to be fulfilled before a case against an accused can be said to be fully established, and they are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must or should be proved' as was held by this Court in [PRECEDENT] where the following observations were made:
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the fact so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
27. Similarly, in [PRECEDENT]., the Supreme Court has ruled that the prosecution is required to establish the death of deceased due to forcible administration of poison, and in absence of any direct evidence, even if there is a strong suspicion against the accused, the same cannot take place of legal proof and the accused is entitled to acquittal.
In [PRECEDENT] , which was also a case based on circumstantial evidence, the Supreme Court has laid down that motive for committing crime on the part of the accused assumes great importance.
In [PRECEDENT] , the Supreme Court was required to consider the case based on circumstantial evidence wherein the charge was against the father for the murder of his daughters. In that case, as the prosecution failed to establish any of the circumstances which were relied on, and the trial Court was swayed by emotional considerations and convicted the accused, while setting aside the conviction, the Supreme Court has held:
In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.
Finally, reliance is also placed on the decision of the Supreme Court in [PRECEDENT], which was a case wherein the deceased died as a result of strangulation and that too in the house of the respondents. This created a strong suspicion that the death was caused by someone residing in the house and in all probability by respondent No. 1 as he had some motive to do so. However, considering the facts of the case, the Supreme Court had not convicted him on the ground that the evidence led by the prosecution is not conclusive and no evidence was led by the prosecution on the basis of which it can be said that the explanation given by him in his examination under [SECTION] of the [ACT] cannot be accepted.
28. On the other hand, while supporting the judgment of the trial Court, Mr. [ENTITY], the learned Additional Public Prosecutor has placed reliance on the decision of the Supreme Court in [PRECEDENT] , wherein the Supreme Court has laid down the tests for convicting an accused person when a case rests upon circumstantial evidence, viz. : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. That was a case wherein the deceased had been brutally cut into pieces and all the cut pieces had been thrown at different parts of the city where the murder was committed. Considering the evidence that the complexion and the age of the deceased as per post-mortem certificate tallied with the evidence as to age and complexion of the deceased; that the decapitated head was that of the body recovered on the earlier day; the scrappings of the wall of the kitchen portion of the scene house where proved to have been stained with human blood; the pillow recovered from the house also was proved to have been stained with human blood; that in number of letters inclusive of the letter addressed by the accused to his father the accused himself had unequivocally confessed that the deceased was the person for murder of whom the accused was convicted, and the attending circumstances like gross and indecent behaviour of the accused towards "B" who was none other than the sister of the deceased, which was referred to as motive, the trial Court as well as the High Court came to the conclusion that he was responsible for causing the death of the deceased, and, while rejecting the appeal, the Supreme Court observed that there were number of impelling circumstances attending the case leading to an irresistible and inescapable conclusion that it was the accused and the accused alone who caused the death of the deceased in a very ghastly manner by cutting him into pieces and throwing various parts of his body at different parts of the city.
29. Mr. [ENTITY], learned Additional Public Prosecutor, also cited one more decision of this Court in [PRECEDENT] . The circumstances relied on against the accused in that case were that the deceased died of intake of Potassium Cyanide; the motive to kill was established and the accused was working in a Laboratory. It was, therefore, held that these circumstances would make easier for the accused to obtain the chemical to carry out the plan. Beside all these circumstances, the Division Bench also noticed one more circumstance that the injuries on the person of the deceased noticed by the expert Dr. [ENTITY], whose sworn testimony was duly supported and corroborated by the post-mortem report and this was a strong circumstance in favour of the prosecution. The Court was of the view that the presence of the injuries would be a point to show that the incident would not be a case of suicidal poisoning as suggested by the defence. On the contrary the aforesaid injuries on the person of the deceased would definitely go to show that she was subjected to the violence at the time of the incident.
30. [PRECEDENT], while considering the case of a death by poisoning the Supreme Court had the occasion to say that:
In a case of death by poisoning, it is only when the motive is there and it is proved that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased that the Court can infer that the accused administered the poison to the deceased resulting in his death.
31. We have gone through the judgments cited at the bar in detail. There cannot be any dispute with respect to the principles laid down by the Apex Court in deciding the cases based on circumstantial evidence. While following the principles laid down and considering the facts and circumstances of the present case, we are of the view that the circumstances in the instant case are so eloquent and have been fully established connecting the appellant with the crime. To summarise and highlight what we have already discussed earlier, we can only say that the following are the admitted facts of the prosecution case:
1. The deceased [ENTITY] and her brother [ENTITY] were going to the house of the accused for tuition.
2. The dead body of [ENTITY] was found at Platform No. 8-9 at Ahmedabad Railway Station on bench.
3. The post-mortem on 14th July 1990 revealed that [ENTITY] was having pregnancy of 5 to 6 months and she was carrying male child.
4. Deceased [ENTITY] died due to the poisonous substance [ENTITY].
5. The accused was serving with Excel Industries, Bhavnagar, manufacturing [ENTITY].
6. The accused [ENTITY] had to appear for interview on 15th July, 1990 at Ahmedabad.
7. The accused had submitted application for leave from 14th July, 1990 to 16th July, 1990.
8. The accused [ENTITY] was found at Ahmedabad on 15th July, 1990 at the place of his maternal uncle.
The above facts, in our opinion, are clearly established from the following circumstantial evidence of the prosecution witnesses:
1. According to [ENTITY]'s evidence, he was required to sit downstairs in the house of the accused, whereas deceased [ENTITY] was sent to the terrace at the time of their tuitions at the hands of the accused [ENTITY]. This would show that there were frequent occasions of the accused to be in the company of [ENTITY] all alone.
2. The accused was aged 23 years where as [ENTITY] was aged 15 years.
3. Neither from the prosecution evidence nor from any other material it has appeared that [ENTITY] had an occasion to remain in the company of any other male person all alone.
4. [ENTITY] was less than 16 years of age. She must have become pregnant when she was in the IXth standard taking tuitions from the accused.
5. [ENTITY]'s pregnancy connects the accused and none else.
6. As the accused was serving in Excel Industries, Bhavnagar, his conversance with the poisonous substance-Endo-Suplhan has been established to the exclusion of one and all in the light of all the established facts taken together.
7. [ENTITY]'s death due to the poisonous substance - [ENTITY] connects the accused and none else.
8. The period during which the incident has occurred shows the absence of both the accused and [ENTITY] at Bhavnagar.
9. The accused and [ENTITY] being together last has, therefore, been established beyond reasonable doubt from the totality of the facts and circumstances flowing from the prosecution evidence.
10. The motive behind the killing of [ENTITY] clearly appears to be the illicit sexual relation which the accused developed with [ENTITY] while she was remaining in the company of the accused as aforesaid.
11. The medical evidence indicating external injuries to deceased [ENTITY] would inevitably show that her death was homicidal and not suicidal.
12. Last when she was seen on a bench on Platform Nos. 8-9 of Ahmedabad Railway Station, she was in serious condition asking for a glass of water. This would indicate that she was already down with the effect of poisonous substance - [ENTITY].
13. Above all broad circumstances of presence of [ENTITY] and pregnancy of deceased [ENTITY] coupled with her association with the accused make up a complete chain and the manner in which and detailed particulars of the incidents would be in the special knowledge of the accused.
32. From the above undisputed facts on the record of the case and the circumstantial evidence fully established by the evidence of the prosecution witnesses, we are convinced beyond any manner of doubt that the prosecution has successfully established the guilt of the accused-appellant. Since accused having not been able to explain all the above established circumstances, the learned Additional Sessions Judge, in our opinion, was perfectly justified in convicting the appellant for the offences punishable under [SECTION] and [SECTION] of the [ACT].
In the result, there being no substance in the present appeal, it is dismissed.