RAM SUNDER SENversusNARENDER @ BODE SINGH PATEL

                         [2015] 12 S.C.R. 898


A                        RAM SUNDER SEN
                                   v.
                NARENDER@ BODE SINGH PATEL
             (Criminal Appeal Nos.1793-1794 of 2011)
B
                         OCTOBER 15, 2015
     [PINAKI CHANDRA GHOSE AND R.K. AGRAWAL, JJ.]
        Penal Code, 1860- ss. 302, 376(2)(f) and 201 ~Murder
c and Rape -Allegation of commission of rape and murder of
  'a girl aged 12 years against the accused - Conviction of
   accused for the offence punishable u/s. 302 and imposed
   death sentence, conviction uls. 376(2)(f) and sentenced to
   rigorous imprisonment for life and conviction uls. 201 and
0 sentenced to rigorous imprisonment for seven years - High
   Court acquitted the accused since the prosecution failed to
   prove the chain of circumstances to connect the accused
   with the offence - Interference with - Held: Not called for-
   Case is based purely on circumstantial evidence - High
E Court rightly held that the links collected by the prosecution
   have not at all been proved by any cogent evidence and,
   thus, it is difficult to hold that it was the accused who committed
   rape upon the deceased and thereafter killed her.

F       Evidence - Circumstantial evidence - Reliance upon by
    the prosecution to convict the accused - Tests to be
    established - Stated.

         Dismissing the appeals, the Court

G      HELD: 1.1 The instant case is based purely on cir-
  cumstantial evidence. The prosecution, however, failed
  at the foremost to link the accused with the incident. The
  prosecution has the responsibility to present a chain of
  events. The accused's culpability could have been es-
H tablished if the blood samples were tested and matched,
                              898
   RAM SUNDER SEN v. NARENDER@ BODE SINGH                     899
                     PATEL

the recovery of underwear is not proven to be that of the     A
deceased. Otherwise, the recovery was unnatural and
did not adduce confidence. One prosecution witness
who was an independent witness stated that the ac-
cused had gone to another village on the date of inci-
dent. There were material discrepancies in the state-         B
ments of the prosecution witnesses. The testimonies of
the interested witnesses clearly show that they materi-
ally improvised from their earlier depositions. The ac-
cused also examined two defence witnesses who stated
that the accused was attending function in some other         C
village on the fateful night. The High Court went into each
and every material aspect of the case, examined at length
the deposition of the witnesses and rightly held that the
links which are collected by the prosecution have not at
all been proved by any cogent evider:ice and, therefore,      D
it is difficult to hold that it was the accused who commit-
ted rape upon the deceased and thereafter killed her.
There is no ground to interfere with the judgment passed
by the High Court. [Paras 15, 16] [907-E; 908-G]
                                                              E
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1793-1794 of 2011.

    From the Judgment and Order dated 23.07 .2008 of the
High Court of Madhya Pradesh at Jabalpur in Criminal Appeal   F
No. 11 of 2008 and Criminal Reference No. 4 of 2007
                            WITH
    Crl. A. No. 1795-1796 of 2011.

     Gagan Gupta, Sunny Choudhary, Mishra Saurabh,            G
Parivesh Singh, M.S. Saran Kumar, Naresh Kumar, Advs., for
the appearing parties.

    The Judgment of the Court was delivered by

    PINAKI CHANDRA GHCSE, J. 1. These appeals, by             H
900          SUPREME COURT REPORTS                  [2015] 12 S.C.R.


 /\    special leave, are directed against the judgment and order
       dated 23.07.2008, passed by the High Court of Madhya
       Pradesh at Jabalpur in Criminal Appeal No.11 of 2008 along
       with Criminal Reference No.4 of 2007, whereby the High Court
       allowed the criminal appeal filed by the respondent herein and
 B     acquitted him and disposed of the Criminal Reference No.4
       of 2007 filed by the State of Madhya Pradesh.

            2. The case of the prosecution, stated briefly, is that on
     19.05.2004 at 8.30A.M., the complainant Ram Sunder Sen
  c lodged a report at Police Chowki Kotar stating that there was
     a function in his house on 18.05.2004 in which his relatives
     and family members had gathered. His daughter Anita, aged
     about 12 years, after eating meal, had gone to sleep at 7.00
     P.l\f.. in front of the main gate of his house as there was no
  D electricity in the house then. After the function was over, at about
     11.00 P.M., he and his family members also slept there. Next
     morning i.e. on 19.05.2004 at 6.00A.M., the wife :.if Sarpanch
     \/ansbahadur informed that the dead body of Anita was lying
     in Bari nearthe house of the Sarpanch. She was not wearing
  1: underwear and skirt. There were abrasions on her forehead,
     nose and face. Abrasions were also found on the neck as well
     as nearby navel region. Blood was oozing out of private part,
     cut on the face and ankles of both the legs. FIR against an
     unknown person was lodged, the dead body was sent for post-
• 1  mortem and investigation was thrown open. The Investigating
     Officer recorded the statements of the witnesses. On the basis
      of the statement of the witnesses, accused Narendra @ Bode
      Singh Patel was arrested who admitted his guilt and at his
      instance, blood-stained underwears of the deceased as also
  Ci the accused were recovered from a pitcher kept behind his
      house.

           3. After investigation was complete, Police filed challan
       before the Court against acc1 :sed Narendra and the case was
  11   committed to the Sessions Court for trial. After considering
       the material on record and hearing the counsel for the accused,
   RAM SUNDER SEN v. NARENDER@ BODE SINGH                           901
        PATEL[PINAKI CHANDRAGHOSE, J.]

charges were framed against accused Narendra for offence            A
punishable under Sections 302, 376(2)(f) and 201 of the Indian
Penal Code, 1873 ("IPC" for short). The charges were read
over and explained to the accused to which he pleaded not
guilty and claimed for trial.
                                                                    I3
      4. The Trial Court by its judgment and order dated
18.12.2007, convicted the respondent accused and awarded
capital punishment to him for offence punishable under Section
302 IPC. The Trial Court further sentenced him to rigorous
imprisonment for life for offence punishable under Section          c
376(2)(f), and rigorous imprisonment for seven years and a
fine of Rs 100, with default clause, for the offence punishable
under Section 201 IPC. Thereafter, the matter was referred to
the High Court of Madhya Pradesh for confirmation of death
sentence vi de Criminal Reference No.4 of 2007. The accused         n
also filed an appeal before the High Court, being Criminal
Appeal No.11 of 2008. The High Court by the impugned
judgment allowed the appeal filed by the accused on the ground
that the prosecution failed to prove the chain of circumstances
sufficient enough to connect the accused with the alleged           E
offence and, consequently, the respondent accused was set
at liberty.

      5. Aggrieved by the judgment of acquittal passed by the
High Court of Madhya Pradesh, the complainant, who is the           F
father of the deceased, has approached this Court by filing
Criminal Appeal Nos.1793-1794 of 2011. The State of Madhya
Pradesh has also challenged before us the judgment of
acquittal passed by the High Court vide Criminal Appeal
Nos.1795-1796 of 2011. Learned counsel for the complainant-         u
appellant has inter alia submitted that the judgment of the Trial
Court is well reasoned and well considered. Both the counsel
for the complainant-appellant and counsel for the State: have
assailed the reasoning given by the High Court in a1, i"lins et 3
wrong conclusion i.e. the innocence of the accu2ed.
                                                                    l1
    6. The Trial Court convicted the accused respondent C""
902          SUPREME COURT REPORTS                       [2015] 12 S.C.R.


 ,\    the basis of the prosecution story relying upon the
       circumstantial evidence. The law is well settled in deciding a
       case based upon circumstantial evidences. The prosecution
       tried to establish the following facts befo~e the Trial Court:
            (i) Motive : in order to satisfy the lust,
 B
            (ii) The recovery of underwear of the deceased as also
            the underwear of the accused was made at the instance
            of the accused in his own house,
            (iii) Human blood was found on the underwear of the
            accused,
            (iv) The accused came to the house of the deceased at
            11.00pm on 18.05.2004 under the pretext of a Sidi but
            was turned back by the mother of the deceased.
 f)
            (v) Previous acts of the accused to make the deceased
            sit in his lap and to kiss her for which he was rebuked by
            the deceased's father reveals his ill-intentions.
             (vi) Accused made an attempt to rape the daughter of
 F
             one Kallu Prajapati of Village Golhata prior to the incident,
             (vii) In the morning of 19.05.2004 the accused was not
             found in the village,
             (viii) Accused was seen around the place of incident at
             night within close proximate time when the incident
             occurred.
             (ix) Accused failed to give reasonable explanation about
             the injuries suffered by him.
              The Trial Court held that the above facts proved the
 G     prosecution case beyond reasonable doubt and hence the
       accused was convicted for the offence charged. However, the
       High Court pointed out serious lacunae in the above-mentioned
       evidences and hence the conviction order was set aside by
       thi::~ High Court giving benefit of doubt to the accused.
  Ii
            7. We shall now examine each and every contention in
   RAM SUNDER SEN v. NARENDER@ BODE SINGH                            903
        PATEL [PINAKI CHANDRA GHOSE, J.]

light of the arguments advanced before us. It is settled law that    A
mot[ve is not a necessary element in deciding culpability but it
is equally an important missing link which can be used to
corroborate the evidence where conviction is based on
circumstantial evidence. In the present case, the motive of the
accused was stated to be 'to satisfy his lust'. For this purpose     B
the prosecution argued that although the accused was married
and had children, but his wife was living at her parent's house.
lhe same fact was deposed by Lalli Bai, mother of the
prosecutrix (PW4). The Trial Court accepted the said argument.
However, the High Court rightly refused to rely only on the          C
statement of PW4 to establish the said fact. Further, it is not
adequately established as to for how long the wife of the
accused was not living with him. The burden to prove this fact
is on the prosecution and not on the accused. The prosecution
also tried to impute bad character upon the accused. The High        D
Court rightly held 'that such evidences are not relevant. Sections
53 and 54 of the Indian Evidence Act, 1872 were discussed at
 length by the High Court and it was held that the accused neither
tried to prove his previous good character, nor the said fact
was in question. An earlier instance of attempt to rape by the       E
accused, as deposed by the mother of the prose.cutrix (PW4),
Savitri, aunt of the deceased (PW5) and Rajendra Kumar Sen,
brother of the deceased (PW6), is not established at any stage
of the trial. These witnesses are not only interested witnesses
but they themselves stated that their evidence is hearsay. The       r
prosecution neither produced any complaint/FIR nor any record
was shown that any such incident occurred. Thus, the
prosecution squarely failed to impute bad character upon the
accused. Further, the motive is also not firmly established
against the accused.                                                 G
     8. The next aspect for consideration before us is the non-
explanation by the accused of the injuries sustained by him.
As per the medical examination, the accused had certain
abrasions on his wrists and ankles and also some injuries on H
private part. PW24 - the doctor who examined the accused,
904          SUPREME COURT REPORTS                     (2015] 12 S.C.R.


A     deposed that he examined one Narendra S/o Ram Babu. But
      this doctor failed to identify the accused before the Court. The
      prosecution also failed to produce any evidence in order to
      prove that the name of the father of the accused is Ram Babu.
      The name of accused's father is Ram Bahore and it is nowhere
 11   shown that Ram Bahore is alias of Ram Babu. With these
      discrepancies, the High Court refused to accept that the
      accused was the same person who was examined by the
      doctor PW24. However, even if it is presumed that there could
      have been error in writing down the name of the father of the
C     accused and due to long time, the doctor failed to identify the
      accused, yet the medical evidences are not clinching enough.
      The accused is a young man, certain abrasions can be
      regularly sustained during the day while working in and around.
      Moreover, the accused having worked in his cousin's wedding
D     mi~~ht have received the abrasions. Medical opinion for
      explanation to such abrasion is that such abrasion can occur
      duE:i to itching also. The other injuries on private part, in medical
      opinion, could be a result of sexual intercourse with his wife.
      The accused is a married man having children and it is not
 E    established that his wife was living away from him. Hence, non-
      explanation of the above said injuries is not an incriminating
      circumstance so as to.attribute any criminality upon the
      accused.
 F      9. The next incriminating fact is the recovery of the blood-
   stained underwear of the deceased made at the instance of
   the accused, from the house of the accused. However, upon
   careful examination, serious doubts are cast upon the incident
   of recovery. The witnesses to this seizure memo are Lalit
 G Kumar Sen (PW9) and Dayanand (PW22). As per the
   deposition of PW9, many doubts are created. He deposed
   that red colour underwear as well as an underwear of accused
   were seized. However, he did not state dS to whom did the red
   colour underwear belong. He also did not mention the place
 H from where it was recovered nor did he mention the manrier in
   which the articles were seized. PW22 further made certain
   RAM SUNDER SEN v. NARENDER@ BODE SINGH                          905
        PATEL [PINAKI CHAN ORA GHOSE, J.]

doubtful revelations stating that at the time of recovery, only A
he, accused and the police were present. Howevet, he only
confirms the recovery of a red colour underwear, but the place
and surrounding of the place of recovery were not deposed by
PW22. The deposition of the above two witnesses raises
various doubts about recovery of material facts. Therefore, the B
High Court correctly raised doubt that it is highly unnatural that
the accused will keep the underwear in a pitcher in his own
house.
     10. The prosecution failed to prove its case on one more c
aspect. Upon recovery of the underwear of the accused and
the deceased, although the same were sent for Serological
examination and it was proved that blood was found on the
underwear of the accused, but no blood was found on the
undergarments of the deceased. During investigation, the 0
blood sample and soil samples were collected from the place
of incident. However, it is shocking to note that none of these
samples were sent for FSL examination. The said examination
could have been very useful to establish the identity of the
accused. There is thus a serious lacunae in the investigating E
procedure that a necessary test was not conducted.
        11. The underwear of deceased vide identification memo
  Ex.P/14 was put for test identification. PW4 deposed that she
  identified the underwear as the same was torn from the bottom.
  However, when this witness was put to cross-examination, she F
  deposed that none of the underwears which were put for
  identification, was torn from the bottom. PW4 also stated that
. the underwear was blood-stained. However, it is proved by
  serological report that no blood was found on the underwear
  of the deceased. Upon perusal, numerous contradictions G
  appear from the statements made by PW4, and serious doubt
  is raised not only on recovery of the undergarments, but also
  upon the identification test.
     12. The next evidence is the presence of the accused in       H
the village at and around the time of the incident against which
906         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A the accused has pleaded alibi. The prosecution placed on
      record the testaments of Ram Sunder Sen, father of the
      deceased (PW3), stating that the accused came to his house
      3--4 times during the night of 18.05.2004. He also deposed
      that on 18.05.2004 at 11.00 P.M. the accused came to his
 B    house and asked for bidi, but he was turned back by his wife
      PW4. PW4 also made deposition to this effect. However, upon
      cross-examination both these witnesses stated that this fact
      was told to the police officer upon examination. But no such
      fact is present in their statements made to the police during
 C    investigation. The High Court cfisbelieved the said fact as there
      was a deviation from the earlier statement. Further, the High
      Court examined the statements of the defence witnesses, who
      depos!=ld that on the date of incident, the accused was present
      in another village to attend the marriage function of his cousin.
 D    The defence witnesses specifically deposed that the accused
      was present during and after the function on 18.05.2004 and
      the accused stayed there at night. It was further deposed that
      the accused left for his home only after breakfast. This also
      explains the absence of the accused in his village in the
 E    morning of the incident. The High Court rightly relied upon the
      statement of an independent witness, namely, Kalawati (PW1)
      who deposed that the accused was not in the village on the
      fateful night as he had gone to the marriage ceremony in other
      village. The said factum of marriage ceremony and function in
 F    other village has been admitted even by the family members
      of the deceased.
        13. The prosecution also placed on record an incident
   alleged to have occurred a few days prior to the fateful day,
 G when the accused made the deceased sit on his lap and kissed
   her, for which the accused was rebuked and beaten by the
   father of the deceased. However, in their statement to the
   police, no such fact was deposed by PW3 or PW4 and it was
   only before the Court that the above witnesses stated this fact.
 H Even ifthe said fact is presumed to be true, we concur with the
   reasoning of the High Court that mere snugging the deceased
   RAM SUNDER SEN v. NARENDER@ BODE SINGH                         907
        'PATEL[PINAKI CHANDRAGHOSE, J.]
                                 /


once, in itself, is no ground to connect the accused with the · A
alleged incident.
      14. The prosecution also adduced the testimony of
Sanjeev Kumar Sen (PW28), cousin of the deceased, who
alleged that in the night intervening between 18th and 191h May,
                                                                    8
2004 at about4:30A.M., he woke up to attend the call of nature
when he saw the accused coming towards his house from the
Badi of the house ofVanshgopal Sarpanch. Very close to that
place, the deceased was found dead in the morning. However,
upon careful examination, it can be gathered that this witness c
did not state such an important fact to the police officer.Although
he alleged that the said fact was known to him yet the report
was lodged against an unknown person. Further, if the veracity
of this statement is tested, it fails to adduce confidence. PW28
himself stated that he saw the accused at4:30A.M., however, 0
none of the details as to the distance, surrounding, etc. were
given. The source of light in which the witness saw the accused
is also not stated. Therefore, the High Court correctly rejected
the testimony of PW28.
     15. The present case is, thus, based purely on                E
circumstantial evidence. It is a settled law that when
prosecution relies on circumstantial evidence, the following
tests to be clearly established:
     (i) The circumstances from which an inference of guilt is
                                                                   F
     sought to be drawn, must be cogent and firm;
     (ii) Those circumstances should be of a definite tendency
     unerringly pointing towards guilt of the accused;
     (iii) The circumstances taken cumulatively should form a
     chain so complete that there is no escape from the con-       G
     clusion that within all human probability the crime was
     committed by the accused and none else; and
     (iv) The circumstantial evidence in order to sustain con-
     viction must be complete and incapable of explanation H
     of any other hypothesis than that of the guilt of the ac-
908          SUPREME COURT REPORTS                [2015] 12 S.C.R.


 A          cused and such evidence should not only be con$istent
            with the guilt of the accused but should be inconsistent
            with his innocence.
         The prosecution, however, in the present case, has failed
    at the foremost to link the accused with the incident. The
 l3
    prosecution has the responsibility to present a chain of events.
    The accused's culpability could have been established ifthe
    blood samples were tested and matched, the recovery of
    underwear is not proven to be that of the deceased. Otherwise,
 c the recovery was unnatural and did not adduce confidence.
    One prosecution witness who is an independent witness has
    stated that the accused had gone to another village on the
    date of incident. There were material discrepancies in the
    statements of the prosecution witnesses. The testimonies of
    the interested witnesses, namely, PW3, PW4, PW5 and PW28
 0
    clearly show that they materially improvised from their earlier
    depositions. The accused also examined two defence
    witnesses who stated that the accused was attending function
    in some other village on the fateful night. The High Court went
  E into each and every material aspect of the case, examined at
    length the deposition of the witnesses and rightly held that the
    links which are collected by the prosecution have not at all been
    proved by any cogent evidence and, therefore, it is difficult to
    hold that it was the accused who committed rape upon the
  F deceased and thereafter killed her.
           16. Thus, in the light of the above discussion, we do not
      find any ground to interfere with the judgment passed by the
      High Court. The appeals are, accordingly, dismissed.
      Nidhi Jain                                    Appeals dismissed.
 Ci