[2014] 7 S.C.R. 956

RAMESH

STATE THROUGH INSPECTOR OF POLICE

(Criminal Appeal No. 592 of 2010) .

AUGUST 1, 2014

[DIPAK MISRA AND V. GOPALA GOWDA, JJ.]

Penal Code, 1860 -· ss. 376, 302 and 201 - Rape and murder - Prosecution case that accused committed rape of C 8 year old girl and she died due to neurogenic shock - On

the basis of evidence on record, accused convicted uls. 376, 302 and 201 and sentenced accordingly - Justification of - Held: Order passed by the courts below does not call for interference - Non-mentioning of the name of the accused o in the initial FIR not fatal to the prosecution case - Last seen theory proved - Confessional statement of the accused corroborated - Circumstantial evidence indicate towards th, e guilt of the accused and the evidence sufficient to establish the guilt of the accused - Evidence - Circumstantial evidence E - Last seen theory.

According to the prosecution case, the appellant committed rape of an 8 year old girl and due to neurogenic shock, the girl died. FIR was lodged.

Investigations were carried out. The appellant was F arrested. The appellant made confessional statement

voluntarily and the shawl worn by the child at the time of occurrence was recovered. The trial court on basis of evidence on record convicted the appellant under Sections 376, 302 and 201 IPC and sentenced accor<lingly, G . All sentences were to run concurrently. The High Court upheld the order passed by the trial court. Hence, the instant appeal.

The questions which arose for consideration in the H 956

RAMESH v. STATE THROUGH INSPECTOR OF 957

POLICE

instant case are whether the absence of name of the A accused in the FIR points towards the innocence of the accused and entitles him for acquittal; whether the instant case is a fit case to apply the last seen theory to establish the guilt of the accused; and whether the circumstantial evidence in the present case indicate B towards the guilt of the accused. and whether these evidences are sufficient to establish the guilt pf the. accused?

Dismissing the appeal, the Court

HELD: 1. The High Court was correct in upholding the decision of the Sessions Judge in convicting the accused of rape and murder of the deceased child.

Therefore, the decision of the High Court is upheld and

the charges under Sections 376, 302 and 201 IPC are D proved against the appellant.· His sentence of life imprisonment and fine of Rs.5000/- and in default one year rigorous imprisonment under Section 376, life imprisonment and fine of Rs.5000/- and on default, one year rigorous imprisonment under Section 302 and also E 3 years rigorous imprisonment and fine of Rs.1000/- and on default, rigorous imprisonment of six months under section 201 of IPC is confirmed. All sentences would run concurrently. [Para 20] [977-B-D] F 2.1. It was submitted by the appellant/accused that his name did not appear for the first time in the FIR and mention of his name was only an improvement of the first version. It has been mentioned by the High Court in the impugned judgment that the FIR initially did not mention the name of the accused and on the other hand, PW-1, G father of the deceased child had suspected one of his relatives for the offence. It was however, revealed after investigation that it was the accused who committed the act and the police in fact was proceeding in the right path.

The involvement of the accused was further corroborated H

A by the recovery of the shawl of the deceased on the basis of the confession of the accused which was made in the presence of witnesses. The decision of the High Court that non-mentioning of the name in the initial FIR is not fatal to the case of the prosecution is concurred with.

B Therefore, the submission of the appellant that since his name did not appear in the FIR, he is entitled to acquittal, is not maintainable. [Para 15] [971-F-H; 973-E-F]

Jitender Kumar v. State of Haryana 2012 (4) SCR 408 c : (2012) 6 sec 204 - referred to.

2.2. It was the case of the prosecution that P.W. 3, the grandmother of the accused had sent the child to see whether the floor was grinded. However, when the child did not return for some time, P.W. 3 went home. At this D juncture, there is evidence through PW 5 and PW 12 who were employees under the accused that the accused took the child to the backyard while he unusuaUy permitted PW 12 to go for lunch. The deceased child went missing since then and was found dead the next E morning. Further, the accused could oot explain the need of taking an 8 year old child to the backyard. On the other hand, he confessed to his crime which was corroborated by the recovery of a shawl at the instance of the accused himself in the presence of witnesses. Therefore, in the F light of the principle laid down by this Court that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than G the accused being the author of the crimes becomes impossible. The High Court was justified in holding the accused guilty of rape and murder of the deceased child.

It is a fit case to apply the last seen theory to establish the guilt of the accused. [Para _16] [973-F-H; 974-B-C; 975-

H A-C]

RAMESH v. STATE THROUGH INSPECTOR OF 959

POLICE

Kusuma Ankama Rao v. State of Andhra Pradesh 2008 A

(10) SCR 89 : (2008) 13 SCC 257 - referred to.

2.3. On the date of occurrence, at about 10:00 pm, the accused opened the mill unusually at odd hours. The same was witnessed by PW 6, the textile shop owner B whose shop was situated opposite the mill and also PW 7, who was the night watchman. Both had questioned the accused regarding this odd behaviour to which he answered that since the next day is Ramzan, he came for grinding the flour. Another strong circumstance was the c evidence of PW 8 whose house is situated exactly behind the mill. When PW 8 came out for attending the call of nature at 10:15 pm, he heard a noise from the well which is situated behind the mill and on seeing the accused . proceeding towards the mill, he stopped the accused and 0 asked as to what he was doing. To this, the accused answered that the accused was throwing garbage in the well since the next day is Ramzan. Since the dead body was found next day from the well, circumstantial evidence points the involvement of the accused in throwing the dead body of the child in the well the previous night. The E High Court, therefore, was justified in construing that the appellant/accused had kept the dead body in the mill and threw the dead body in thewell at about 10:15 pm. [Para

17) [975-D-G]

2.4. There.is no direct evidence which prove that the rape and murder of the deceased child was committed by the appellant. There are no witnesses available on

. record who have testified having witnessed the appellant

committing the crime. However, all the circumstances G point towards the appellant as being the author of the crime in the instant case. [Para 18] [975-H; 976-A-B]

Govinda Rddy & Anr. v. State of Mysore AIR 1960 SC 29 - referred to.

A 2.5. The recovery of the body of the deceased child from the same well where PW-8 had seen the accused appellant the previous night throwing something in the well provides for a strong circumstantial evidence. The unusual behaviour of the accused in taking the B deceased child to the backyard of the mill, sending of his employee for lunch atthe same time and also the opening the mill in the odd hours of the night the very same eyening points towards the guilt of the accused. [Para 19)

[976-G-H; 977-A-B] c . Raj Kumar Singh v. State of Rajasthan (2013) 5 SCC 722; Baldev Singh v. State of Haryana 2008 (16) SCR 826:

(2008) 14 SCC 768; Raghunath v. State of Haryana and Anr. 2002 (4). Suppl. SCR 130 : (2003) 1 SCC 398; Devinder

Singh & Ors. v. State of Himacha/ Pradesh (2003) 11 SCC 488; Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr. 2013 (7) SCR 1105: (2013) 12 SCC 796; Ramnaresh & Ors.

v. State of Chhattisgarh 2012 (3) SCR 630 : (2012) 4 SCC 257; Budhuram v. State of Chhattisgarh (2012) 11 SCC 588

- referred to.

E Case Law Reference:

(2013) 5 sec 122 Referred to Para 6, 11

F 2oos (16 > scR 826 Referred to Para 6

2002' ( 4 ) Suppl. SCR. 130 Referred to Para 6

(2003) 11 sec 488 Referred to Para 6

2013(7) SCR1105 Referred to Para 11 G

2012 (3 ) SCR 630 Referred to Para 11

(2012) 11 sec 588 Referred to Para 11 .

2012 (4 ) SCR 408 Referred to Para 15

2008 (10 ) SCR 89 Referred to Para 16

RAMESH v. STATE THROUGH INSPECTOR OF 961

POLICE

AIR 1960 SC 29 Referred to Para 18

CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No.592 of 2010.

From the Judgment and Order dated 19.02.2008 passed by the Madurai Bench of Madras High Court in Crl. A. (MD) No.

B 3 of 2007.

S. Mahendran for the Appellant.

M. Yogesh Kanna and Vanita Chandra K .. Giri for the . C Respondent.

The Judgment of the Court was delivered by

V. GOPALA GOWDA, J. 1. This appeal is filed by the appellant being aggrieved by the judgment and order dated D 19.02.2008 passed by the Madurai Bench of High Court of Madras in Criminal Appeal (MD) No. 3 of 2007 urging various grounds and legal contentions and prayed to set aside the . conviction and sentence awarded against him and acquit him from the charges framed against him.

2. The brief facts in nutshell are stated hereunder with a view to appreciate rival legal contentions urged on behalf of the parties:-

The prosecution charged the appellant under Sections F 376, 302 and 201 of Indian Penal Code. The appellant pleaded not guilty. The trial was conducted on behalf of the respondentprosecution and in order to substantiate the charges, it examined 22 witnesses and relied on 27 exhibits and 4 material objects.' The trial court on the basis of evidence adduced by G the prosecution has examined the appellant under Section 313 of the Cr.P.C. regarding incriminating circumstances found in .-r. the evidence of the prosecution. The trial court recordea the:#'

finding of fact on appreciation of legal evidence on record and convicted the accused and sentenced him for life imprisonment H

A holding that the charges made against him under Sections

376, 302 and 201 IPC were proved .and punishment of life imprisonment and payment of fine of Rs.5000/-, in default to undergo one year R.I. under Section 376 IPC, life imprisonmenf and payment of fine of Rs.5000/- in default to undergo Ol'\e year, B R.I. under Section 302 IPC and 3 years R.I. and payment of fine of Rs.1000/- in default to undergo 6 months R.I. under Section 201 IPC was awarded to him and further held that all the sentences awarded against the appellant was to run concurrently. c

3. The case of the prosecution is that on 3.11.2005 at about 11.00 am, deceased-Seeni Nabra, aged 8 years along. with her grandmother (PW-3) went to the rice mill of the appellant to get the grains for grinding. But having seen that the front portion of the mill is closed, PW-3 asked the D deceased-child to go and ask the appellant to open the back portion of the mill and it was opened. Accordingly, PW-3 handed over the grtins to the appellant and came to the house of a neighbour. Sometime later, the deceased-child asked Rs.2/- from PW-3 for taking juice. Accordingly, she gave the E sam~ to her. Thereafter, the deceased-child went to the mill and I

askei.t the appellant whether the grains were grinded. At that time,.J)he was taken to the back side of the mill by the appellant.

Since, the deceased-child did not return, PW-3 having waited for some time went home. It is the further case of the F prosecution that lhe appellant took the deceased-child to the backyard which was seen by an employee (PW-12) of the mill: The appellant permitted PW-12 to go for lunch and PW-1-2 left for lunch. Then, the accused committed rape on the deceasedchild and due to neurogenic shock she died. Since, the G deceased-child did not come back, PW-3 informed her father

(PW-1 ). Thereafter, PW-1, PW-3 and others searched for the-, deceased-child. At about 10.00 pm, PW-6,. the owner of the textile shop situated just opposite to the mill of the appellant and the night watchman (PW-7) posted for !:jecurity in that area H found the appellant opening the mill unusually at that time. On

being questioned, the appellant said that since the next day is A Ramzan, he opened the mill for doing work. At about 10.15 pm, PW-8, whose house is situated exactly behind the mill came to attend the call of nature and at that time, he heard a noise coming from the well side and he found the accused there and he. questioned the appellant as to what he was doing during B night hours. Then, the accused told that since the next day was Ramzan, he was throwing the garbage into the well. The dead body of the deceased-child was found by PW-4 inside the well and having seen the same, PWs 1 to 3 were informed. PW-1, the father of the deceased-child went over to the respondentc police station, where PW-20, the.Sub-Inspector of Police was on duty. He gave the complaint (marked as Ex.-P1) to PW-20, the aforesaid Sub-Inspector on the basis of which, a case came to be registered as Fl R No. 146/2005 under Section 17 4 Cr.P.C. Ex.-P23 (the FIR) was dispatched to the court. The 0 dead body was taken out from the well. The place of occurrence and the dead body were photographed by PW-9 and marked as M.0.1 (series). Thereafter, the dead body was sent to the Government Hospital, Rameswaram. The Inspector of Police,

Rameswaram (PW-22) on receipt of the copy of the FIR, proceeded to the Government Hospital, Rameswaram and E conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars. He prepared the inquest report marked as Ex.-P24. Then, he gave a requisition to the doctor for conducting post-mortem on the dead body of the deceased-child. The Doctor (PW-15) of the Government F Hospital, Rameswaram, on receipt of the requisition, conducted post-mortem on the dead body of the deceased-child and issued post-mortem report(Ex.-P8) wherein he stated that the decease-child would appear to have died within 24 to 48 hours prior to the post-mortem and the death was due to neuorogenic G shock. It was further the case of the prosecution that PW-21 took up the investigation and recorded the statement of the witnesses. He went to the scene of occurrence and lnade an inspection in the presence of the witnesses and prepared the observation mahazar (Ex.-P2) and the rough sketch (Ex.-P25).

A After getting the medical opinion, the charges were altered to Sections 376 and 302 IPC. Ex.-P26, the amended FIR was dispatched to the court. On 9.11.2005, the appellant was arrested by the investigation officer in the presence of the witnesses. The appellant made confessional statement B voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.-

P3. Following the same, the accused took the investigation officer to lhe Mill and produced the M.0.2 (Shawl) which was worn by te deceased-child at the time of the occurrence and c the same 1was recovered under a cover of mahazar.

4. The appellant identified the place where he had committed the offence. Then, the Investigation Officer made an. inspection and prepared Ex.-PS, the observation mahazar and Ex.-P27, the rough sketch. Following the same, the appellant D was sent for medical examination. PW-14, the doctor attached to the Government Hospital, Ramanathapuram, m, edically

examind him and issued Ex.-P7, the age certificate. Then; the appellant was medically examined by PW-13, the doctor attached to Ramanathapuram, Government Hospital and he E issued Ex.-P6, the certificate stating that the appellant is found to be potent. All the material objects recovered from the place of occurrence and from the dead body of the deceased-child as also the material objects recovered from the appellant were sent for chemical analysis by the Forensic Science Department.

F Ex.-P9, the Chemical Analyst's report and Ex.-P22, the Hyoid Bone report were received. The Inspector of Police (PW-22) recorded the statement of the witnesses. On completion of the investigation, the Investigation Officer filed the final report before the learned Magistrate Court. The case was committed to the G Court of Sessions for trial and necessary charges were framed.

The prosecution examined 22 witnesses and relied on 27 exhibits and 4 material objects on completion of the evidence on the side of the prosecution. The appellant was examined under Section 313 Cr.PC regarding the incriminating H circumstances found in the evidence of prosecution witnesses

which was denied by him. The trial court on appreciation of A evidence on record found that the appellant is guilty of the charges levelled against him and he was convicted and sentenced for the offences as stated above.

5. Aggrieved by the said order of the learned trial judge, B an appeal was filed by the appellant before the Division Bench of Madurai Bench of the Madras High Court urging various legal contentions and questioning the correctness of the findings recorded by the trial court against the appellant and holding that he was guilty of the same. The High Court on re-appreciation of the evidence on record did not find any infirmity in either C factual or legal aspect in the judgment of the trial court and sustained the same by passing the impugned judgment. The correctness of the same is challenged in this appeal framing certain substantial questions of law. urging the following grounds.

6. It is contended on behalf of the appellant that the prosecution has failed to comply with mandatory procedures as required under Section 174(1) and (2) of Cr.PC i.e. non sending of the intimation recorded under Section 174(1) and E the report under Section 174 (2) of Cr.PC (reasonable suspicion on death)° to the nearest Executive Magistrate or Sub- Divisional Magistrate who is empowered to hold preliminary inquest enquiry and such irregularities on the part ofthe investigating agency vitiates the entire proceedings under F Section 461 of Cr.PC. Mr. S. Mahendran, learned counsel for the appellant placed reliance upon the judgment of this Court in Raj Kumar Singh v. State of Rajasthan 1 regarding not naming the accused in the FIR is fatal to the prosecution case.

It is further contended that this case is based on the G circumstantial evidence on which the trial court as well as the first appellate court while considering the said evidence on record have relied upon and convicted and sentenced the appellant for offences charged against him. Therefore, the

(2013) s sec 722.

A benefit of doubt is available to the accused which should have been adopted and the courts below should have passed the order of acquittal. In support of the aforesaid submission, he has placed reliance upon judgment of this Court in the case of Baldev Singh v. State of Haryana2 and further contended that B first charge of rape on the appellant is not proved, automatically the second charge of murder under Section 302 IPC does not survive for consideration. This aspect of the matter has not been considered properly by the courts below. Therefore, the impugned judgment is liable to be set aside and further strong c reliance was placed on the judgment in Raghunath v. State of Haryana and Anf3. in support of the contention that medical evidence does not support the prosecution case and hence, the benefit of reasonable doubt shall go in favour of the appellant. In support of this submission he also placed reliance

0 upon the judgment of this Court in Devinder Singh & Ors. v.

State of Himachal Pradesh4. And another legal groud urged on behalf of the appellant is that the criminal court recognizes and accepts the inadmissible evidence, therefore, the finding recorded holding both charges proved against him is erroneous in law for want of accepting the inadmissible evidence.

E Therefore, the said finding is liable to be set aside. Further reliance was placed on the evidence of the doctor (PW-15) who has stated that no external injuries were found on the deceasedchild. Therefore, the question of death due to neurogenic shock is wholly untenable as the same is not supported by the doctor's F evidence.

7. It is further contended that the alleged recovery of the dead body of the deceased-child from the well was required to be corroborated with medical evidence. The same has not G been proved by the prosecution and further the courts below have mis-directed themselves with regard to the investigation

(2008) 1 sec 398.

(2003) 1 sec 398.

H 4.

(2003) 11 sec 488.

made by PW-21 and the circumstances placed on record on A the basis of evidence of PWs.-1, 2, 3, 5, 8 and 12 are nothing but improved versions. Therefore, the courts below should not have placed reliance on such evidence to convict and sentence the appellant on the basis of said evidence which is not legally justified.

8. It is the case of the prosecution that the courts below failed to consider the vital evidence of the doctor (PW-15).

During the examination-in-chief, the doctor clearly stated that there is no symptom on the body which indicated drowning in C water and the symptom found on the body could be that of wrinkling of skin and becoming pale etc. that is why he has not mentioned this fact in his certificate. On the suggestion made to him regarding non mentioning of rigor mortis found on the body, the same was denied by him. Though, he answered that he has not mentioned the same, in the post mortem report but D he conceded to the approximate time of death on the basis of rigor mortis found in the body and also admitted that he has not mentioned the external injuries found on the body as to whether they were ante or post mortem in nature. He also

suggested that normally in the first coitus abrasions, contusions E are possible on the vaginal part but in this case they are all absent. Further, the courts below ignored the evidence namely the Police inquest requisition to the doctor for conducting postmortem on the deceased-child. Even on the police requisition, it was not mentioned that it is the case of rape and murder.

F According to the prosecution, the dead body found in the well, only legs were visible inside the well, if that is so, there should have been definite injury on the skull and other limbs but they are all absent in the case in hand as could be seen from the post-mortem report which creates doubt on the alleged recovery G of dead body from the well.

9. Further, the courts below have failed to consider the evidence of investigation officer. PW-21, who is the 1.0. in this case has brought several divergent facts among/ the H

A prosecution witnesses which are believed by the courts below

without proper analysis of the said evidence for convicting the appellant. According to the investigation officer, he arrested the appellant on 9.11.2005 at Akkalmadam Bus stop which is contradictory with the evidence of PW-12, co-labour in the mill, B who had stated that he and the appellant were in police custody from 4.11.2005 onwards. Later, he was treated as prosecution witness. Therefore, the alleged arrest of the appellant as stated by 10 in his evidence is not correct and further at the instance of the appellant, the material object (shawl) alleged to have c worn by the deceased was recovered. However, this fact and identity has not been elicited from any of the witnesses in their examination in chief. He said that he examined the Sub-

Inspector who registered an FIR only on 9.11.2005 i.e. after five days of the incident. It is further stated by him that he saw the

0 body firstly at Government Hospital mortuary. However, he admitted that if the body is brought to the hospital directly, the particulars were recorded in an accident register and immediate intimation would be given to police station. In the case in hand no such formalities have been complied with by the hospital authority. When PW-21 was questioned with regard E to mentioning on Column No. 25 in Ex.-P-21, he admitted that

"while going for having juice, somebody cornered the girl .nd

molested her inside the house". But, in the post-mortem requisition, he did not ask to conduct examination as to whether any rape has been committed on her. At the same time, he is F not in a position to explain as to how he has mentioned these

particulars in the inquest proceedings. He further admitted that Nazirdeen (PW-8), had alleged to have heard noise from the well and seen the appellant going on back side of the mill at

10.30 pm. The concerned house is a single room house and G he has not mentioned either in his observation mahazar or in the rough sketch that "the house consists of any backyard entry, bathroom and latrine". He further admitted that he has not mentioned that there is any backyard entry in the Kathanjenna's house (who is alleged to have seen the body inside the well).

H He had also further admitted that he has not prepared any

observation mahazar or rough sketch about the inside of the A mill. Though he examined the adjacent shop owners but.those shops have not been shown in his observ.ation mahazar. It is further stated' by him that during the course of enquiry, PW-1

has not stated that he did not receive any information from his mother in law. He further admitted that PW-3 has not stated B anything about the appellant who collected things fo'r grinding and returned the same.

10. Further, the courts below have not considered the evidence of PW-3 who has stated in h!=lr second enquiry that C her granddaughter's slippers were found in front of Kathun's house. Kathun Jenna has not stated in any enquiry that she went to close the well with lid where she had seen two legs inside the well. It is further contended that the trial court on wrong appreciation of evidence came to the erroneous conclusion on the charges to record its finding against the appellant on the D basis of incred.ible and inconsistent circumstantial evidence.

The conviction recorded by the trial court for the simple reason that the appellant has confessed that after he ravished the deceased, he threw the body inside the well and to corroborate the same the investigation officer has recovered a shawl at the E instance of the appellant which is not admissible unless the recovery of shawl is proved from the other cogent evidence. It is contended by the learned counsel that the conviction of the appellant is based on the basis of surmises and conjectures, therefore, he has prayed for setting aside the conviction and F sentence awarded against him.

11. On the other hand, Mr. M.Yogesh Kanna, the learned counsel for the respondent-prosecution sought to justify the concurrent findings and reasons recorded on the charges after G proper analysis and re-appreciation of evidence on record by both the trial court and the High Court after careful examination . of the evidence on record having regard to the charges levelled against the appellant. He has placed reliance upon the judgment in Raj Kumar Singh (supra) wherein it is stated that H

A not naming the accused in the FIR does n'ot vitiate the prosecution case and he further placed reliance upon the confessional statement of the appellant under Section 27 of the Evidence Act regarding recovery of the shawl which fact is spoken to by PW-1 and he placed reliance upon the judgment B in Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr6. and Ramnaresh & Ors. v. State of Chhattisgarh6 regarding non mentioning of the appellant in the FIR does not vitiate the prosecution case. The last seen theory of the deceased with the appellant support the finding and reasons recorded by the c courts below in framing charges against the appellant by placing

reliance upon the judgment in Budhuram v. State of Chhattisgarh 7•

12. The learned counsel on behalf of the prosecution invited our attention to the evidence of the prosecution which D is based on recording the evidence of PW-12 and medical evidence of PW-15 with regard to the age of the appellant, his potency for intercourse which is established and further the oral evidence supported by the medical evidence, particularly, PW-

13 and PW-15 justify the conviction and sentence awarded E against the appellant on the charges levelled against the

appellant. Therefore, it is urged that the legal submissions urged on behalf of the appellant by placing reliance upon the judgments of this Court which are referred to above do not support the case of the appellant. Therefore, the learned F counsel of the prosecution urged not to interfere with the concurrent finding of fact which is based on proper re-valuation of legal evidence on record. The same is supported by medical evidence. Though some evidence is circumstantial evidence, the findings of the courts below are supported by cogent G evidence on record. Hence, the learned counsel requested for

5. c2013) 12 sec 796.

6. c2012) 4 sec 257.

H 7. c2012) 11 sec 588.

dismissal of the appeal by affirming the conviction and sentence A awarded against the appellant.

13. With reference to the above rival contentions urged on behalf of the parties, we have examined very carefully the entire evidence on record with a view to find out the correctness of B the findings recorded on the charges levelled against the appellant.

14. Three main points come up for the consideration in the present case:

Whether the absence of name of the accused in the FIR points towards the innocence of the accused and entitles him for acquittal?

Whether the present case is a fit case to apply the last seen theory to establish the guilt of the D accused?

Whether the circumstantial evidence in the present case indicate towards the guilt of the accused and whether these evidences are sufficient to establish E the guilt of the accused?

Answer to point no. 1

15. We intend to address each contention separately and begin with the first contention of the appellant/ accused that his F name did not appear for the first time in the FIR and mention of his name was only an improvement of the first version. It has been mentioned by the High Court in the impugned judgment that the FIR- Ex. Pf initially did not mention the name of the accused and on the other hand, PW-1, father of the deceased G child had suspected one of his relatives for the offence. It was however, revealed after investigation that it was the accused who committed the act and the police in fact was proceeding in the right path. The involvement of the accused has been further corroborated by the recovery of the shawl of the H

A deceased on the basis of the confession of the accused which was made in the presence of witnesses. We intend to concur with the decision of the High Court that non mentioning of the name in the initial FIR is not fatal to the case of the prosecution.

It has been held by this Court in the case of Jitender Kumar v.

8 State of Haryana8:-

"16. As already noticed, the FIR (Ext. P-2) had been registered by ASI Hans Raj, PW 13 on the statement of lshwar Singh, PW 11. It is correct that the name of accused Jitender, son of Sajjan Singh, was not mentioned by PW 11 in the FIR. However, the law is well settled that merely because an accused has not been named in the FIR would not necessarily result in his acquittal. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of the prosecution. Various factors are required to be examined by the court, including the physical and mental condition of the informant, the normal behaviour of a man of reasonable prudence and possibility of an attempt on the part of the informant to falsely implicate an accused. The court has to examine these aspects with caution. Further, the court is required to examine such challenges in the light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity.

17. The court shall also examine the role that has been attributed to an accused by the prosecution. The informant might not have named a particular accused in the FIR, but

H a. c2012) a sec 204.

such name might have been revealed at the earliest A opportunity by some other witnesses and if the role of such an accused is established, then the balance may not tilt in favour of the accused owing to such omission in the FIR.

18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not

be possible to give every minute detail with unmistakable C precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need, not be an encyclopaedia of all the facts and circumstances

I on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case D would further have considerable bearing on application of such principles to a given situation. Reference in this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P.'.

Therefore, the contention of the appellant that since his name did not appear in the FIR, he is entitled to acquittal, is not maintainable. We accordingly, answer this point in favour of the respondent.

Answer to point no. 2

16. It is the case of the prosecution tht P.W.-3, the grandmother of the accused had sent the child to see whether the floor was grinded. However, when the child did not return

for some time, P.W. 3 went home. At this juncture, there is G evidence through PW 5 and PW 12 who were employees under the accused that the accused took the child to the backyard while he unusually permitted PW 12 to go for lunch. Further, the accused could not explain the need of taking an 8 year old child to the backyard. In this aspect of the last seen theory, it has H

A been held by this Court in the case of Kusuma Ankama Rao

v. State of Andhra Pradesh9 as under:

"10. So far as the last-seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of UP. v. Satish it was noted as follows: (SCC p., 123, para 22)

"22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased C is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of D other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that E the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.

(emphasis laid by this .Court)

In Ramreddy Rajesh Khanna Reddyv. State of A.P. it was noted as follows: (SCC p. 181, para 27)

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

H 9.

(2ooa) 13 sec 257.

In the case'in hand, the deceased child was taken to the A backyard of the mill by the accused and the same was seen by PW 5 and PW 12. The deceased child went missing since then and was found dead the next morning. The accused did not explain why did he take the child to the backyard. On the other hand, he confessed to his crime which was corroborated B by the recovery of a shawl at the instance of the accused himself in the presence of witnesses. Therefore, in the light of the principle laid down by this Court, we are of the opinion that the High Court was justified in holding the accused guilty of rape and murder of the deceased child. We accordingly answer this . c point in favour of the respondent.

Answer to point no. 3

17. On the date of occurrence, at about 10:00 pm, the accused opened the mill unusually at odd hours. The same was D witnessed by PW 6, the textile shop owner whose shop was situated opposite the mill and also PW 7, who was the night watchman. Both had questioned the accused regarding this odd behaviour to which he answered that since the next day is Ramzan, he came for grinding the flour. Another strong E circumstance was the evidence of PW 8 whose house is situated exactly behind the mill. When PW 8 came out for attending the call of nature at 10: 15 pm, he heard a noise from the well which is situated behind the mill and on seeing the accused proceeding towards the mill, he stopped the accused F and asked as to what he was doing. To this, the accused answered that the accused was throwing garbage in the well since the next day is Ramzan. Since the dead body was found next day from the well, circumstantial evidence points the

involvement of the accused in throwing the dead body of the G child in the well the previous night. The High Court therefore, is justified in construing that the appellant/accused had kept the dead body in the mill and threw the dead body in the well at about 10:15 pm.

18. It is true that in the present case, there is no direct H

A evidence which prove that the rape and murder of the deceased child was committed by the appellant. There are no witnesses available on record who have testified having witnessed the appellant committing the crime. However, all the circumstances point towards the appellant as being the author of the crime in B the present case. It has been held by five judge bench of this

Court in the case of Govinda Reddy & Anr. v. State of Mysore 10 as under:

"5. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh1 and it is as follows:

"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."

19. Again, in the present case, the recovery of the body G of the deceased child from the same well where PW-8 had seen the accused appellant the previous night throwing something in the well provides for a strong circumstantial evidence. The unusual behaviour of the accused in taking the

10. AIR 1960 SC 29.

deceased child to the backyard 'of the mill, sending of his A employee for lunch at the same time and also the opening the mill in the odd hours of the night the very same evening points towards the guilt of the accused. We answer this point in favour of the respondent. '

20. Since, all the points are answered in favour of the respondent, we hold that the High Court was correct in upholding the decision of the Sessions Judge in convicting the accused

of rape and murder of the deceased child. We therefor~; sustain the decision of the High Court and hold that the charges under C Sections 376, 302 and 201 of IPC are proved against the appellant. His sentence of life imprisonment and fine of Rs.5000/

- and in default one year rigorous imprisonment under Section. 376, life imprisonment and fine of Rs.5000/- and on default, one year rigorous imprisonment under Section 302 and also 3 years rigorous imprisonment and fine of Rs.1000/- and on default, D rigorous imprisonment of six months under section 201 of IPC is confirmed. All sentences are to run concurrently. Accordingly, the appeal is dismissed as the same is devoid of merit.

Nidhi Jain Appeal dismissed. f