Holding

A conviction cannot stand where the chain of circumstantial evidence is incomplete; the failure to prove the crucial circumstance of the accused discovering the body created reasonable doubt, leading to the setting aside of the conviction.

Summary

The appellant was convicted of raping and murdering a five‑year‑old girl based solely on circumstantial evidence, including the alleged last sighting of the girl with the accused, his purported false explanation, the claim that he pointed out the body’s location, and alleged blood‑stains and genital abrasions. The trial court sentenced him to death for murder and seven years' rigorous imprisonment for rape, a judgment affirmed by the High Court. On appeal, the Supreme Court examined whether the circumstantial evidence satisfied the three‑fold test: firm establishment, a definite tendency to point to guilt, and a cumulative chain leaving no reasonable doubt. The Court found the crucial link—that the accused discovered the body—was not proved, the "last seen" circumstance was not established beyond doubt, and the medical evidence did not conclusively show intercourse. Consequently, the chain of circumstantial evidence was broken, creating reasonable doubt, and the conviction was set aside. The appellant was released.

Issues considered

Whether the circumstantial evidence presented was sufficient to sustain convictions under IPC sections 302 and 376.
Whether the crucial circumstance of the accused discovering the dead body was proved beyond reasonable doubt.
Whether the "last seen" theory and alleged blood‑stains/genital abrasions establish the accused's guilt.
Whether the legal requirements for conviction on circumstantial evidence were met.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302, s. 376

Subjects

circumstantial evidencereasonable doubtmurderrapedeath penaltyIndian Penal CodeEvidence Actconviction overturned

Judgment

JAHARLAL DAS
A
v.
STATE OF ORISSA

APRIL 12, 1991 )..- . ~

B [S. RATNAVEL PANDIAN AND K. JAYACHANDRA
REDDY, JJ.]

Indian Penal Code, 1860: Sections 302 and 376--Rape and
murder-Criminal trial-Death penalty-Circumstantial evidence-
Sufficiency of evidence for conviction-Gravity of offence cannot over-
weigh legal proof-Caution against basing conviction on suspicion-
c Court should ensure that conjectures and suspicions do not take the
place of legal proof-Necessary conditions for circumstantial evidence
as a basis for conviction explained-Inquest Report-Purpose of

The appellant was tried for rape and murder of a girl aged five
D years. The entire evidence against him was circumstantial: (a) the
accused and the deceased were last seen toghether; (b) false explanation
given by the accused regarding the whereabouts of the deceased; (c)
alleged recovery of the dead body of the deceased at the instance of the
accused and (d) presence of abrasions on the genital of the accused as
well as blood stains on his wearing apparells and nail clippings. Relying
E ou the circumstantial evidence the Trial Court convicted him under
Sections 302 and 376 and sentenced him to death for the offence of
murder and seven years rigorous imprisonment for the offence of
rape. The High Court confirmed the conviction and the sentence
awarded by the Trial Court. In appeal to this court it was contended on
behalf of the appellant that the circumstantial evidence is wholly insuf-
F ficient to bring home the guilt of the accused.

Allowing the appeal, this Court,

HELD: 1. The circumstantial evidence in order to sustain the con-
viction must satisfy three conditions; ( 1) the circumstances from which
G an inference of guilt is sought to be drawn, must be cogently and firmly
established; (ii) those circumstances should be of a definite tendency
nerringly pointing towards the guilt of the accused; (iii) the circums-
tances, takeu 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
H incapable of explanation on any other hypothesis than that of the gnilt
of the accused. [303E-F]
298
JAHARLAL v. STATE OF ORISSA 299

Hanumant and Anr. v. The State of Madhya Pradesh, [1952] SCR
A
1090; Reg v. Hodge, [1838] 2 Lew. 227; Dharam Das Wadhwimiv. State
•. -< of Uttar Pradesh, (1974[ 3 S.C.R. 607 and Jagta v. State of Haryana,
[ 1975] 1 SCR 165, referred to.

2. In cases depending largely upon circumstantial evidence there
is always a danger that the conjecture or suspicion may take the place of B
legal proof and such suspicion however so strong cannot be allowed to
take the place of proof. The Court has to be watchful and ensure that
conjectures and suspicions do not take the place of legal proof for
sometimes unconsciously it may happen to be a short step between
moral certainty and the legal proof. At times it can be a 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. c
The Court must satisfy itself that the various circumstances in the chain
of evidence should be established clearly and that the completed chain
must be such as to rule out a reasonable likellbood of the innocence of
the accused. [304F-G, 309E-F]
D
3. In the instant case the circumstance that tbe deceased was last
seen in the company of the accused is not established beyond reasonable
doubt. This circumstance was not mentioned in the Inquest Report
~repared by the Investigating Officer. Further the statement of the
parents of the deceased that the accused took the deceased girl by itself Is
not enough to conclude that the deceased was last seen in the company E
of accused because even according to them on being enquired the
accused told them that he had sent the girl back in a truck. [308C, 305F]

3.1 The prosecution has not conclusively proved the crucial
circumstance of the recovery of the dead body of the deceased girl at the
instance of the accused. No Pancbnama was prepared for such a disco· F
very under Section 27 of the Evidence Act aDcl there Is no mention in
the Inquest Re)!llrt as to how the body was discovered. On the other
hand there is a:;.y amount of doubt and suspicion about the accused
having shown the place of occurrence. Once it is held that the crucial
circumstance namely the discovery of the body at the instance of the
accused is not established, than the other circumstances are hardly G
sufficient to establish the guilt of the accused. (3088-C-D, 306B, 307C]

3 .. 2 The explanation given by the accused that be sent the girl
back to the village in a truck cannot be held to be not plausible and
therefore false because it is not uncommon in villages for children to go
about the fields and walk short distances while coming back to the H
village. [308E]
300 SUPREME COURT REPORTS [1991] 2 S.C.R.

A 3.3 The pro8ecution has also not established that the accused had
an intercourse on the day of the occurrence. When the docotor who
examined the accused stated that he could not find any sign of sexual
Intercourse atleast within one hour of his examination then it is only a
matter of conjectures as to when the accused had any intercourse. The
presence of blood in the nail clippings and on the underpant does not
B also incriminate and do not connect the accused In any manner with the
alleged offences. The accused also had given an explanation namely that
his gums were bleeding and in wiping out the same he got these blood
stains. Even otherwise this circumstance coupled with the circumstance
of last seen in the company of the accused would not amount to legal
proof of the guilt particularly when the crucial circumstance namely
that the accused showed the dead body is held to be not established.
C When such a main link goes, the chain gets snapped and the other
circumstances cannot in any manner establish the guilt of the accu·
sed beyond all reasonable doubts. Therefore there is a reasonable
doubt about the guilt of the accused and the benefit of the same should
go to him. Accordingly the conviction and sentence of the accused is set
D aside. [309B-C, F-G]
...
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 276 of 1991.

From the Judgment and Order dated 16.7.1990 of the Orissa
E High Court in Criminal Appeal No. 117 of 1990 And Death Reference
No. 1 of 1990.

H.K. Puri (Amicus Curiae) for the Appellant.

A.D. Giri, Solicitor General and A.K. Panda for the Respondent.
F
The Judgment of the Court was delivered by

K.JAYACHANDRAREDDY,J. Leavegranted.

This is a case of death sentence. The fact that such a sentence is
G awarded even in the year 1990 would immediately suggest that the
offence involved should be of a grave nature. Yes, the offence is not
only grave but heinous and inhuman.

A girl aged five years was a victim of rape and. thereafter murder.
The sole appellant before us was tried, convicted and sentenced to
H death by the Sessions Court and confirmed by the High Court. It is a
JAHARLAL v. STATE OF ORISSA (REDDY, J.] 301

case depending entirely on circumstantial evidence and the obvious A
contention is that the circumstantial evidence is wholly insufficient to
. ... bring home the guilt to the accused .

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.
Invariably in such cases a person last seen with the victim, unless B
otherwise there are circumstances prima facie exonerating him, would
be the prime suspect but in the ultimate judicial adjudiciation 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.

The deceased Disco alias Sukumari, a girl aged 5 years was the
c
daughter of P. Ws 1 and 6, the father and the mother who were drum-
mers 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 kilometre away, came to D
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 dressses for the newly born daughter. Next day i.e. on
9.11.88 he carne to their house in the morning with new dressses. 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 E
and went with the 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 accom-
panied 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 F
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. Thereafter they went to Jharpokharia Police Station
and gave a report to the Officer-in-charge P. W. 11 stating that the
" deceased and the accused ha ye not returned. He· made an entry in the G
station diary. From there P.W. 1 again went to the Tulsibani Village
where a person informed him that he has seen the accused going to-
wards his house. P.W. 1 went there and enquired the accused. He tole!
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 H
302 SUPREME COURT REPORTS (1991] 2 S.C.R.

A on being questioned the accused confessed to have raped and commit-
ted 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 an F.1.R.
B 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 ('
c lacerated wound of 2.5 cm x I cm x muscle deep starting from the
posterior angle of ngina along the perinium upto the anus. On inrter-
nal examination he found the following injuries:

"(I) Soft tissues and muscles below the external injuries to
the neck were contused with extra-vassation of blood into
D
the soft tissues. ,
y-
(2) Heamatoma under the scalp corresponding to external
injury No. 11.

(3) The hymen was torn and the floor of the vagina i.e.,
E
vaginal channel was lacerated. This injury corresponds to
external injury No. 15."

The Doctor opined that all the injuries were antemortem and homi-
cidal 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
F
opined that the injuries on the neck suggest that the deceased was
strangulated by pressure of hands. So far injury to the vagina is con-
cerned, 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
G
genital. P.W. 8, however, categorically stated that on examining the
accused he could not find any recent sigl) 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
H P.W. I but denied the rest of the case.
JAHARLAL v. STATE OF ORISSA [REDDY, J.] 303

The trial court did not accept the P.W. I, s evidence regarding A
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 B
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.l.R. nor in the evidence of other witnesses
who were also said to have been present when the accused was brought
tb 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. c
The trial court, however, relying on the other circumstances con-
victed the accused under Sections 302 and 376 1.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 con- D
--->(. viction and sentence awarded by the trial court.

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 circums-
tances from which an inference of guilt is sought to be drawn, must be E
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 F
hypothesis than that of the guilt of the accused. In the leading case
Hanumant and Another v. The State of Madhya Pradesh, [1952] SCR
1090 it is also cautioned thus:

"In dealing with circumstantial evidence there is always the
danger that conjecture or suspicion may take the palce of G
legal proof. It is therefore right 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 H
304 SUPREME COURT REPORTS [1991] 2 S.C.R.

circumstances should be of a conclusive nature and ten-
A
dency, 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 consis-
tent with the innocence of the accused and it must be such
8 as to show that within all human probability the act must
have been done by the accused."

Mahajan, J., as he then was, has also aptly referred to a passage
containing the warning addressed by Baron Alderson to the Jury in
Regv. Hodge, I 1838] 2 Lew 227 which is stated as under:

c "The mind was apt to take a pleasure in adapting circums-
tances 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, con~idering such matters, to over-
D reach and mislead itself, tosupply some little link that is
wanting, to take for granted some fact consistent with its
previous theories and necessary to render them complete."

In Dharam Das Wadhwani v. State of Uttar Pradesh, [1974] 3 SCR 607
it was held that "unlike direct evidence the indirect light circumstances
E may throw may vary from suspicion to certitude and care must be taken
to avoid subjective pitfalls of exaggerating a conjecture into a convic-
tion." In Jagla v. State of Haryana, [ 1975) 1 SCR 165 it was held that
"The circumstances that the accused could not give trustworthy expla-
nation about the injuries on his person and about his being present on
the scene of occurrence are hardly sufficient to warrant conviction."
F
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 ~onjecture 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
G 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 com-
H ing to the conclusion that the accused along has committed the
offence.
JAHARLAL v. STAIB OF ORISSA [REDDY, J.] 305

The trial court relied on the following circumstances:
A
"(a) 'Last seen' theory-that the accused and the deceased
were last seen together.

(b) Conduct of the accused-that the accused attempted to
flee away when he could be seen at his village by P. W. 1; B

(c) False explanation-the accused when questioned gave
false explanation regarding the whereabout of the deceased;

(d) Recovery of the dead body of the deceased on the
showing of the accused-That the accused pointed out the
place where the dead body of the deceased was lying inside c
a paddy field;

(e) Presence of injury on the genital as well as stains of
blood on the wearing apperel and nailclippings of the
accused." D
.-... The evidence of P.Ws 1, 2 and 6 are relied upon in support of the first
circumstance namely that the deceased was last seen in the company of
the accused. P.W. lJhe father and P.W. 6 the mother deposed that on
the day of occurrence the accused came to their house and took the
deceased towards Bombay Chhak to purchase new clothes. The E
accused only admitted to the extent namely that he had been to their
house and denied the rest of the prosecution case. However, we shall
'>' accept the evidence of P. Ws I and 6 to the effect that the accused took
the deceased on that day to Borribay Chhak. But that by itself is not
enough to conclude that the deceased was last seen in the company of
the accused because even according to them on being enquired, the F
accused told them that he sent the girl back in a truck. Even otherwise
the distance between the two villages is not much. P.W. 2's evidence,
however, is relied upon that the deceased was going in the company of
accused. P.W. 2 is also a native of the same village to which P.Ws 1
• " and 6 belong. He deposed that on a Wednesday he had been to village
pond to take his bath at about 12 noon and while returning he saw the G
accused going towards east with a minor girl aged about 5 years but
P. W. 2 does not say that the deceased was in his company. He, how-
ever, proceeded to depose that he found P. W. I searching for some
one and thereupon P. W. 2 told him that he has seen the accused with a
minor girl going towards the paddy field. He admitted that he did not
konw whose daughter was in the company of the accused. In the cross- H
A
306 SUPREME COURT REPORTS [1991] 2 S.C.R.

examination he further admitted that he did not talk to the accused.
No doubt P.W. 2's evidence, to some extent, corroborates the evi-
-
dence of P.Ws 1 and 6 but unfortunately even at the stage of inquest
this circumstance namely that the deceased was last seen in the com-
pany of the accused, was not noted. We will advert to this aspect at a
later stage. The important and crucial circumstance heavily relied
B
upon by the prosecution is the alleged recovery of the dead body of the
deceased on showing of the accused and the accused pointed the place
where the body of the deceased was lying. For this again the prosecu-
tion relied on the evidence of P.Ws 1 and 11. Having carefully gone
through the evidence of P. W. 1 we find that he has improved his + ~"
version from stage to stage. As already noted both the courts below
c were not prepared to place any reliance on his evidence regarding the
extra-judicial confession about which he made no mention at any
earlier stage. As far as the recovery of the body is concerned, P.W. 1
however deposed that he managed to catch hold of the accused and
brought him to the village and that the police came in a jeep and took
the accused into custody. Then all of them went towards paddy field
D
which had been pointed by the accused and on search they found the
dead body. P. W. 11 the Investigating Officer deposed at he went to
the village and found the accused to have been detained. He therefore
prepared the F.l.R. and sent the same for registration of the crime.
Then he arrested the accused and his evidence thereafter to put in his
own words reads as under:
E
"The accused pointed out the place where the dead body of
the deceased was lying and thereafter led me to the paddy
field wherefrom I could recover the dead body of the
deceased Disco. As there were good number of persons
present apprehending danger to the accused I sent him to
F the police station. During course of investigation, I
examined witnesses, seized the dhoti (M.0. III), Shirt
(M.O. IV) and this chadi marked M.O. VIII from the
accused under the seizure list already marked Ext. 3. The
dead body of the deceased was lying in the paddy field
where there were paddy plants which had been damaged
G and scattered. I held inquest over the dead body of the
deceased Disco in presence of witnesses under the inquest
report already marked Ext. 1. I noticed injuries on the
vagina and other parts of the body of the deceased. After

H
inquest I sent the dead body for P.M. examination through
constables."
-
JAHARLAL v. STATE OF ORISSA [REDDY, J.] 307

According to this evidence the accused is alleged to have taken P.W.
A
11 and others to the open paddy field where the dead body was lying.
It is only thcraftcr that the inquest report was drawn up. However,
P. W. 11 stated in his evidence that before going to the paddy field the
F.I.R. Ex. P. 10 was drawn up by him. Surprisingly we find a mention
about the discovery of the body in the F.1.R. itself. But the same is not
found in the inquest. There is not even a reference to the accused in B
the Column No. 9 of the inquest report where the information of
witness as to the cause of death has to be noticed. We are aware that
the purpose of inquest report is only to ascertain the cause of death but
in a case of this nature there should have been atleast a mention in the
inquest report as to how the body was discovered. Apart from that
usually a panchnama is prepared for such a discovery made under
Section 27 of the Evidence Act but strangely in this case there is no C
such panchnama nor there is any oilier evidence apart from the evi-
dence of P.Ws 1 and 11. P.W. 6 does not say anything about this
aspect. As a matter of fact the trial court has noted the discrepancies "in
the evidence of P .Ws 1 and 11 and it is observed as under:
D
'
"The Investigating Officer, P. W. 11 has stated something
more about the find of the dead body. He speaks that the
accused pointed out the place where the dead body of the
deceased was lying and thereafter led him to the paddy
field wherefrom the dead body of the deceased could be
recovered. Though this part of his evidence has not been E
supported by P.W. 1, but from the evidence of both P.Ws 1
and 11 coupled with the evidence of P.W. 4, I am pur-
suaded to hold that on the showing of the accused, the dead
body of the deceased was recovered from a paddy field."

We have perused the evidence of P.W. 4. His evidence does not in any F
manner incriminate the accused. P.W. 4 deposed that the dead body of
the deceased was found lying in paddy field and that the police held
inquest over the dead body in his presence and that the inquest report
is P. 1 in which he put his signature as a witness. Nothing more is stated
by him. He does not even refer to the presence of the accused at the
place where the dead body was found or at the time of inquest, which G
was held also there. P.W. 4 does not in any manner help the prosecu-
tion case so far as this circumstance is concerned. If really the body has
been discovered at the instance of the accused there should have been
a panchnama and a mention about the same in the inquest report.
P. W. 11 categorically in his evidence has stated that after sending the
F.l.R. the accused was questioned and the body was discovered there- H
308 SUPREME COURT REPORTS (1991] 2 S.C.R.

after at the instance of the accused and the inquest was held over the
A
dead body and P.W. 4 was a panch witness to the inquest and he also
affixed his signature in the inquest report. But as mentioned above
P. W. 4 does not say anything about the accused being present any-
where near the place where the dead body was found nor there is a
reference to the accused in the inquest report. The only two remaining
B witnesses P.Ws 1 and 11 namely the father of the girl and the
Investigating Officer respectively have contradicted each other. That
is the type of evidence regarding this crucial circumstance. It is highly
dangerous to accept the same and hold that the dead body was dis-
covered at the instance of the accused. Having given our careful con-
sideration we are of the firm opinion that the prosecution has not
established this circumstance conclusively. On the other hand there is
c any amount of doubt and suspicion about the accused having shown
the place of occurrence. We may also point out at this stage that the
circumstance that the deceased was last seen in the company of the
accused was not mentioned in the inquest report. Therefore the first
circumstance also namely that the deceased was last seen in the com-
D pany of the accused is not establishe.d beyond reasonable doubt. How-
ever, when once it .is held that the crucial circumstance namely the
discovery of the body at the instance of the accused is not established,
then the other circumstances are hardly sufficient to establish the guilt
of the accused. The courts below have also observed that the accused
gave a false explanation. According to the prosecution case the
E accused is supposed to have stated to P. Ws 1 and 6 that he sent away
the deceased in a truck. The courts below held that this explanation is
false mainly on the surmise that a minor girl could not have come back
on her own in a truck. We are not convinced that on this surmise alone
we can hold that the accused has given a false explanation. It is not
uncommon in villages for children to go about the fields and walk short
F distances while coming back to the village. In any event the accused
had given an explanation that he sent the girl back to the village in a
truck and the same cannot be held to be not plausible and therefore
false.

Then the last circumstance relied upon by the courts below is the
G presence of some abrasions on the genital of the accused and presence
of stains blood on the wearing apparels and nail clippings. The pro-
secution 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
abrasions on the genital of the accused and on examination he opined
H that he could not find any recent sign of sexual intercourse and he also
JAHARLAL v. STATE OF ORISSA [REDDY, J.] 309

added that there was no such sign of having intercourse within one A
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 could not
find any sign of sexual intercourse atleast within one hour of his exami-
B
nation then it is only a matter 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 clippi~lis 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 c
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 circumst-
ance coupled with the circumstance of last seen in the company of the
accused amount to legal proof of the guilt particularly when the crucial
D
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 suspi-
cion to take the place of legal proof for sometimes unconsciously it
may happen to be a short step between moral certainty and the legal E
proof. At times it can be a 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 ihe same should go to him.
F
We are conscious that a grave and heinous crime has been com-
mitted but when there is no satisfactory proof of the guilt we have no
other option but to give the benefit of doubt to the accused and we are
constrained to do so in this case. Accordingly, the appeal is allowed.
The conviction and sentence of the accused is set aside and he shall be
set at liberty forthwith if not required in any other case. G

T.N.A. Appeal allowed.