Case: Jaharlal Das Vs. State of Orissa

3. 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 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.  4. 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.  5. 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 kilometer away, came to the house of P.Ws 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 i.e. on 9.11.88 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 P.W 6 told her husband P.W.1 to proceed to Bombay Chhak as the deceased might be crying. Accordingly P.W. 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. P.W. 1 came back to the village and sat in the shop of P.W. 2 who informed that he had seen the accused going towards village Tulsibani alongwith the deceased. P.W. 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 P.W.11 stating that the deceased. P.W. 1 again went to the Tulshibani Village where a person informed him that he has seen the accused going towards his house. P.W. 1 went there and enquired the accused. He told P.W. 1 that the deceased had gone back home but P.W. 1, caught hold of him but the accused squirmed away from his grip. P.W. 1, however, again caught him and took him to his Village and according to P.W. 1 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 P.W. 1 and others proceeded in that direction. P.W. 11 the Police Officer also came in a jeep and took the accused into custody, drew up F.I.R. 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. P.W. 11 found the deceased lying with injuries on her vagina and other parts. He held the inquest in the presence of P.W. 4 and others and sent the dead body for post-mortem. P.W. 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 2.5 cm x 1 cm x muscle deep starting from the posterior angle of vagina along the premium upto the anus. On internal examination he found the following injuries :-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 i.e., 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 10.11.88 itself by another Doctor P.W 8 for some abrasions on his genital. P.W. 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 P.W. 1 but denied the rest of the case.  6. The trial court did not accept the P.W. 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 extra-judicial 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 P.W. 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 P.W. 1 neither in the F.I.R. nor in the evidence of other witnesses who were also said to have been present when the accused was brought to the village by P.W. 1. P.W. 6, who is no other than the wife of P.W. 1, did not even mention about it.  7. The trial court, however, relying on the other circumstances convicted the accused under Sections 302 and 376 I.P.C. 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.

Reasoning:
8. 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 accused9. 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 offence11. 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, P.W. 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 added that there was no such sign of having intercourse within one hour of his examination. However to a court question, P.W 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 P.W. 8 stated that he couldnt 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.