1. Appellant has filed this appeal against the judgment dated 31.10.2001, passed by II Additional Sessions Judge, Fast Track Court, Harda, in Sessions Trial No.23/1998, convicting him under Section 302, 376 and 201 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.5000/-, imprisonment for life with fine of Rs.1000/- and rigorous imprisonment for five years with fine of Rs.1000/-, on each count, respectively. All the sentences are directed to run concurrently.
2. In short the facts of the case are that appellant had illicit relations with Mamtabai, who was a widow lady. Mamtabai had three children from her former husband. As a result of illicit relations with the appellant, she conceived again. Appellant used to extend help to Mamtabai in getting treatment of her children. He used to take them to Harda, Indore etc. On 9.9.1997, appellant 2was seen carrying a two and half years old child on his shoulder near Primary School of Kulharda. After some time, dead body of an unknown female child was found lying in the urinal of school. A report (Ex.P/23) in this regard was given to police, whereupon a Murg No.31/1997 was registered and enquiry ensued. Dead body of child was sent for postmortem examination.
3. Dr. Malti Patel (PW-2) and Dr. K.D. Mahajan (PW-9) conducted postmortem examination of the body of deceased child. In their opinion, child was subjected to rape, as a result of which she died. In their opinion, the death was homicidal in nature. A photograph of the dead body (Ex.P/16) was preserved and on 29.9.1997 offence under Sections 376 and 302 of the Indian Penal Code was registered in Police Station, Harda.
4. Investigation of the offence was done by Inspector Arun Khemariya (CW-1). On the basis of an anonymous postcard (Ex.P/25), police came to know that the dead body of female child was of the daughter of a Banjara who lived at Timarni Chidgaon Road. On enquiry, it was revealed that deceased child was Setu, the daughter of Mamtabai, who was widow of Ram Singh Banjara. Appellant, who had illicit relations with Mamtabai, committed rape on the child, as a result of which she died. He then threw the dead body of child in the urinal of school. He concealed the frock of deceased in the hut of Mamtabai, which was recovered on his information (Ex.P/16).
5. After investigation, charge sheet was filed and the case was committed for trial.
6. Mamtabai was charged under Section 201 of the Indian Penal Code for causing disappearance of the evidence of offence and screening the offender from punishment. However, by the judgment dated 17.8.2001, she was acquitted of the charge.
7. Appellant was charged under Sections 302, 376 and 201 of the Indian Penal Code. He abjured his guilt and pleaded false implication.
8. Learned trial court, after trial and upon appreciation of evidence adduced in the case, held the appellant guilty and convicted and sentenced him as mentioned above. Aggrieved by his conviction, appellant has filed this appeal.
9. Learned counsel for the appellant submitted that there is no direct evidence in the case. The conviction of appellant is based on the circumstantial evidence of last seen together and recovery of the frock of deceased at his instance. According to him, the evidence in that regard is not reliable and is insufficient to bring home the charge against the appellant. Trial Court committed error in convicting the appellant. Learned counsel for the State, on the other hand, submitted that there was enough evidence to establish that it was appellant who committed rape on deceased, as a result of which she died. He supported and justified the judgment of conviction of appellant passed by the trial Court.
10. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record.
11. It has not been disputed that the deceased child died as a result of sexual assault made on her. Dead body of the child was found lying in the toilet of primary school of Kulharda. Its report (Ex.P/23) was given to Police Station, Harda, by Headmaster Mumtaz Khan. Inquest of the dead body (Ex.P/ 2) was drawn by the police in presence of Mahesh Kumar Malviya (PW-1). Dr.Vijay Khandelwal (PW-12) with the help of lady doctor Malti Patel (PW-2) and Dr. K.D. Mahajan (PW-9) conducted the postmortem examination of the dead body of child. According to Dr.Malti Patel (PW-2), it was a body of unknown female child. There was dressing on her both forearms from wrist to elbow. There was injury on her private part. Blackish bloody fluid was coming out from her vagina. There was tear of hymen. Posterior perineal area and posterior vaginal wall were also ruptured. In interior examination of posterior wall of vagina, she found a hole in which blood was collected and the intestines were felt. The injuries found on the private part of child were ante mortem in nature. Child was subjected to sexual intercourse. Aforesaid part of the postmortem report (Ex.P/12) was written by Dr. V.K. Khandelwal on her observation. She had also signed the postmortem report.
12. Dr. K.D. Mahajan (PW-9), who was a Dentist and Assistant Surgeon in Civil Hospital, Harda, deposed that he found bite marks on both the cheeks of female child. He singed the postmortem report (Ex.P/12).
13. Dr. V.K. Khandelwal (PW-12), Medical Officer of Civil Hospital, Harda, testified that on 9.9.1997 he conducted postmortem examination of the dead body of an unknown female child. He found bandages on her hands. On opening the bandage, he detected fractures of humerus bones of her hands. He found injuries on her private part. In his opinion, deceased was subjected to forcible intercourse, which caused excessive haemorrhage resulting in shock. Her death was homicidal in nature and was caused within 12 to 24 hours' duration before postmortem. Injuries found on her body were ante mortem in nature and were sufficient to cause her death in ordinary course of nature. Postmortem report (Ex.P/12) was signed by him. Thus, it was established that the female child, whose dead body was found in the toilet of school, was subjected to rape and that she died due to injuries caused to her during rape.
14. As far as identification of the dead body of female child is concerned, Dr. Narendra Kumar Tripathi (PW-6), a private practitioner of Harda, deposed that he knew appellant. According to him, on 21.8.1997, a Banjaran woman came to his clinic with accused and a female child, aged about two years. There were injuries in the hands of child. Since it was a case of deformity of bones, he asked the woman to visit some orthopaedician. After seeing the photograph of deceased child (Ex.P/6), he deposed that the child, who was brought to his clinic, was similar to the child in photograph, but he could not tell with certainty that the said photograph was of that child. Ramdulare (PW-4) deposed that the photograph (Ex.P/6) was that of child of Banjaran. He had seen the child when she was alive. From the evidence of Ramdulare (PW-4) it is established that a female child, whose dead body was found, was the daughter of co-accused Mamta.
15. Now the question before us is whether it was the appellant who committed sexual intercourse with the deceased child and caused her death. Kalabai (PW-13), sister of deceased, deposed that co-accused Mamtabai was her mother. She had also a younger sister named Chhotu. After marriage she used to come to her mother's house. Appellant Vinod killed her sister Chhotu and asked Mamtabai to go with him. Vinod used to come to her house daily. In cross-examination, this witness admitted that since all the people said that appellant killed her younger sister, she also said that it was Vinod who killed Chhotu. Thus, the evidence of this witness leaves us nowhere. However, it indicates that appellant used to come to her mother's house. Manohar (PW-16), brother of deceased, deposed that Mamatabai was his mother. There was also a little sister to him named Chhotu, who was killed by appellant. Appellant took him to Indore saying that his sister was there. He went to Indore and stayed for three days and came back. Appellant had also taken to his mother. Police had brought appellant and Mamtabai from Indore. According to him, appellant told him that he killed Chhotu, but he did not disclose about her dead body. This witness also admitted that he spoke against appellant because all the people of village Timarni said so. He himself did not see appellant killing his sister. Evidence of this witness is vague and does not go to establish any incriminating link between the appellant and commission of crime.
16. Another piece of evidence adduced by the prosecution to establish connection of appellant with the crime is of Dr. Narendra Kumar Tripathi (PW-6) and Gabbulal (PW-18). Dr. Narendra Kumar Tripathi is the doctor at whose clinic appellant and Mamtabai had taken deceased for treatment of her injuries, which she contracted by fall. According to Dr. Narendra Kumar Tripathi (PW-6), appellant alongwith a Banjaran had come to his clinic, but since it was a case of deformity of bones, he asked them to consult some orthopaedician. He deposed that after about a month he identified appellant in identification proceedings conducted by Dr. Ashok Pandit (PW-5) and signed the identification memo (Ex.P/7). He deposed that identification proceeding was conducted on 25.9.1997. Dr. Ashok Pandit (PW-5) stated that on the request of police Harda, he conducted identification parade of appellant on 25.9.1997. Dr. Narendra Kumar Tripathi and Gabbulal identified appellant. He recorded the proceedings in memorandum (Ex.P/7). He admitted that witnesses, appellant and the persons, who were mixed in the identification parade, were brought by the police. On a bare perusal of the evidence of Dr. Narendra Kumar Tripathi (PW-6), it is apparent that his evidence merely proved that appellant had gone with Mamtabai for the treatment of child on 21.8.1997, whereas the dead body of deceased was recovered on 9.9.1997 i.e. about 15-16 days after the deceased and her mother were seen in the company of appellant. In our opinion, even if it is held that appellant used to move around with the mother of deceased, yet it cannot be held with certainty that he committed rape on deceased and caused her death near about 9.9.1997. There is a long gap between deceased being seen in the company of appellant and her dead body being found.
17. Another important witness Gabbulal (PW-18), who is said to have seen appellant taking the deceased towards Kulharda school, deposed that he did not identify the boy who alighted from the bus and went towards the school carrying something covered with a cloth. He saw him from a long distance. He even denied his participation in the test identification proceedings. He, however, admitted that he participated in the identification proceedings at police station and signed memorandum (Ex.P/7). According to him, the said identification was conducted by the Town Inspector in the police station. He deposed that the remark recorded in Ex.P/7 that he saw accused going towards the toilet of the school was wrong. That fact was wrongly recorded in Ex.P/7. He signed it without reading. On analyzing the evidence of this witness, it can be easily gathered that he is not a reliable witness. On the basis of his testimony no inference can be drawn that he saw appellant taking deceased child towards the place where the dead body was found. His evidence cannot be accepted as an evidence of last seen of the deceased with the appellant. In our opinion, trial court committed error in placing reliance on his evidence.
18. Even if it is accepted that that appellant had illicit relations with the mother of deceased and he used to visit her house and further that he accompanied deceased and her mother on 21.8.1997, when deceased was taken for treatment to Dr. Narendra Kumar Tripathi (PW-6), it cannot be held that there was proximity between the date and time of death of deceased and accused being seen with the deceased. In Mohibur Rahman and another vs. State of Assam-(2002) 6 SCC 715 Apex Court observed that: "The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. The dead body had been recovered about 14 days after the date on which the deceased was last seen in the company of the co-accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together does not bear such close proximity with the death of the victim by reference to time of place. Merely because the co-accused was last seen with the deceased a few ascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased."
19. In view of the above legal proposition, we are of the view that the evidence adduced by the prosecution to establish the fact of deceased been last seen together with the accused was not sufficient to connect the accused with the crime.
20. Another important circumstance sought to be proved by the prosecution against the appellant is the recovery of the frock of deceased from the hut of acquitted accused Mamtabai. Investigating Officer Arun Khemariya (CW-1) deposed that on 25.9.1997, on interrogation, appellant disclosed that he had kept the frock of deceased in the hut of co-accused Mamtabai. He recorded the said information in memorandum (Ex.P/16). Similar statement was made by Sayed Firoz (PW-11). On 26.9.1997, in consequence of the said information, a frock was seized from the hut of accused Mamtabai vide seizure memo Ex.P/12. This frock is said to have been sent for chemical examination to Regional Forensic Science Laboratory, Gwalior. According to chemical examination report, blood and human sperms were found on the said frock. According to attesting witness Sayed Firoz (PW-11), when Inspector Khemariya called him to police station, appellant was lodged in lock-up. He did not tell anything before him, but Inspector Khemariya asked him to sign 3-4 papers. In cross-examination, he admitted that he did not know Mamtabai or appellant Vinod. No proceeding was done before him. On perusal of the evidence of Inspector Arun Khemariya (CW-1), it does not appear that he sealed the said frock and sent it for chemical examination. The Forensic/chemical examination report of the frock was not exhibited in the evidence. Even otherwise, it appears quite unnatural that the accused would have brought back the frock after throwing the dead body in the toilet of school for concealing the same in the house of accused Mamtabai. On a close analysis of the evidence of Investigating Officer Arun Khemariya (CW-1) and Sayed Firoz (PW-11), the recovery of the frock at the instance of accused does not inspire confidence.
21. It is true that the circumstances sought to be proved by the prosecution may give rise to a strong suspicion against the accused, but, as held by the Apex Court in Ashish Batham v. State of Madhya Pradesh-AIR 2002 SC 3206, suspicion, howsoever, strong or probable it may be, cannot be a substitute for legal proof required to substantiate the charge of commission of a crime. Graver the charge greater should be the standard of proof required. Courts in criminal cases at least should constantly remember that there is long mental distance between 'may be true' and 'must be true'. This basic and golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
22. In a case of circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. 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. There must be a chain of evidence as complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be of such nature as to show that within all human probability the act must have been done by the accused.
23. After closely scanning and scrutinizing the evidence on record, we find that the evidence adduced by the prosecution for bringing home the charges against the accused is not sufficient to establish beyond a reasonable doubt that it was appellant only who committed the crime. We are of the view that the trial court did not appreciate the evidence on record in right perspective, as such the finding of conviction of appellant, recorded by the trial Court deserved to be set aside.
24. In the result, the conviction and sentence awarded to appellant by the trial under Sections 302, 376 and 201 of the Indian Penal Code are set aside. He is acquitted.
25. Appeal allowed.