RAMESHversusSTATE THROUGH INSPECTOR OF POLICE

                      [2014] 7 S.C.R. 956


A                             RAMESH
                                   v.
           STATE THROUGH INSPECTOR OF POLICE
               (Criminal Appeal No. 592 of 2010)
                                        .
                          AUGUST 1, 2014
B
         [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
                                                                 c
     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
    958    SUPREME COURT REPORTS               [2014] 7 S.C.R.

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 the·well at about 10:15 pm. [Para
  17) [975-D-G]
                                                                F
      2.4. There.is no direct evidence which prove that the
  rape and m·urder 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 R~ddy & Anr. v. State of Mysore AIR 1960 SC
 29 - referred to.
                                                                H
    960    SUPREME COURT REPORTS            [2014] 7-S:C.R

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
D 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 > sc·R 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

H     2008 (10 ) SCR 89           Referred to      Para 16
  RAMESH v. STATE THROUGH INSPECTOR OF                      961
                  POLICE
    AIR 1960 SC 29           · Referred to           Para 18        A
    CRIMINAL AP PELLATE 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.                        E
     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 respondent-
prosecution 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
    962     SUPREME COURT REPORTS                 [2014] 7 S.C.R.

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 deceased-
  child 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
   RAMESH v. STATE THROUGH INSPECTOR OF                   963
        POLICE [V. GOPALA GOWDA, J.]
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 respondent-     c
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 174
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).     H
   964       SUPREME COURT REPORTS                   (2014] 7 S.C.R.


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 t~e 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
   examin~d 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
     RAMESH v. STATE THROUGH INSPECTOR OF                    965
          POLICE [V. GOPALA GOWDA, J.]
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 fra·ming
certain substantial questions of law. urging the following
grounds.                                                             D

      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 of- the
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

1.   (2013) s sec 722.                                               H
    966        SUPREME COURT REPORTS              [2014] 7 $.C.R.


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 Haryana 2 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 Pradesh 4. And another legal grou~d 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 deceased-
  child. 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

    2.   (2008) 1 sec 398.
    3.   (2003) 1 sec 398.
H   4.   (2003) 11 sec 488.
   RAMESH v. STATE THROUGH INSPECTOR OF                       967
        POLICE [V. GOPALA GOWDA, J.]
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.                                                            B

     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 post-
mortem 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
    968     SUPREME COURT REPORTS                 [2014] 7 S.C.R.


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
  body firstly at Government Hospital mortuary. However, he
0
  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
   RAMESH v. STATE THROUGH INSPECTOR OF                       969
        POLICE [V. GOPALA GOWDA, J.]
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
    970       SUPREME COURT REPORTS                 [2014] 7 S.C.R.

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 Chhattisgarh 6 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.
   RAMESH v. STATE THROUGH INSPECTOR OF                      971
        POLICE [V. GOPALA GOWDA, J.]
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:
                                                                     c
      1.    Whether the absence of name of the accused in
            the FIR points towards the innocence of the
            accused and entitles him for acquittal?

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

      3.    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
    972       SUPREME COURT REPORTS                 [2014] 7 S.C.R.


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
8 State of Haryana :-
          "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
c         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
D         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
E         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
F         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.
G
          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.
   RAMESH v.. STATE THROUGH INSPECTOR OF                   973
        POLICE [V. GOPALA GOWDA, J.]
    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 B
     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.'.
                                                                   E
     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.
                                                                   F
Answer to point no. 2

     16. It is the case of the prosecution th~t 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
    974        SUPREME COURT REPORTS                [2014] 7 S.C.R.

A   been held by this Court in the case of Kusuma Ankama Rao
    v. State of Andhra Pradesh 9 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.,
B
          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)

F       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
G         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.
   RAMESH v. STATE THROUGH INSPECTOR OF                   975
        POLICE [V. GOPALA GOWDA, J.]
     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
    976       SUPREME COURT REPORTS                [2014) 7 S.C.R.

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
c         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
D                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
E                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
F
                 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

H   10. AIR 1960 SC 29.
   RAMESH v. STATE THROUGH INSPECTOR OF                    977
        POLICE [V. GOPALA GOWDA, J.]
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.                            '
                                                                   B
       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