Holding

The Supreme Court held that none of the alleged circumstantial pieces, including the forensic stains, satisfied the rigorous test required for conviction, and therefore set aside the convictions and acquitted the appellant.

Summary

Subhash Chand was convicted by the trial court of murder and rape of a five‑year‑old girl and sentenced to death, a decision later modified to life imprisonment by the Rajasthan High Court. The prosecution's case rested entirely on circumstantial evidence: alleged "last seen together" testimony, the accused's abnormal conduct, recovery of an underwear and baniyan stained with semen and blood group B, a purported false alibi, and alleged absconding. The Supreme Court examined each piece, holding that the child witness could not establish a "last seen together" link, abnormal conduct was not indicative of guilt, the semen and blood stains were not incriminating without proof that the garments belonged to the accused, no false alibi was made, and the accused was not absconding. The Court reiterated the stringent test for conviction on circumstantial evidence, requiring a chain that excludes any reasonable hypothesis of innocence. Consequently, the Court set aside the convictions under Sections 302 and 376(2)(f) IPC and acquitted the appellant.

Issues considered

The adequacy of the circumstantial evidence (last seen together, abnormal conduct, forensic stains, alleged alibi, alleged absconding) to sustain conviction under Sections 302 and 376(2)(f) IPC.
The scope and purpose of examination of the accused under Section 313 of the Code of Criminal Procedure, 1973.
Whether the presence of semen and blood on recovered garments can be treated as incriminating without proof of ownership.
Whether the accused made a false plea of alibi and whether that can be used as a link in the circumstantial chain.
Whether the accused was absconding after the offence and whether that constitutes a relevant circumstance.
The legal standard for conviction on the basis of circumstantial evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 392
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302, s. 376(2)(f)

Subjects

circumstantial evidencemurderrapeSection 313 CrPCalibiforensic evidenceburden of proofacquittal

Judgment

SUBHASH CHAND A
v.
. STATE OF RAJASTHAN

OCTOBER 16, 2001

[DR. A.S. ANAND, CJ., R.C. LAHOTI AND ASHOK BHAN, JJ.] B·

Code of Criminal Procedure, 1973 :

Section 313-Scope and ambit of-Held: ls to afford the accused per-
sonally an opportunity of explaining any incriminating circumstance so ap-
pearing in evidence-The accused may or may not avail of such an opportunity.
c·
Criminal Trial :

'Last seen together'-Evidence to substantiate-Held: Must be such
that the victim and the accused were seen together at a point of time in close
proximity with the time and date of commission of crime. D

Semen and hood-Presence of-On the clothes of accused-Evidentiary
value of-Held: Not by themselves an incriminating piece of evidence con-
necting the accused with the crime in question-Penal Code, 1860, S.376.

Circumstantial evidence-Conviction based on-Held : Accused can be E
c~nvicted if the claim of circumstantial evidence is so .forged as to rule out the
possibility ofthe innocence of the accused-Between 'may be true' ancl 'must
be true' there is a long distance to travel-Such distance must be covered by·
legal, cogent and unimpeachable evidence.
F
Criminal o.ffences-lnvestigation of-Role of Investigating Officer-
Explained and reiterated.

Words and Phrases: "Alibi"-Meaning of.

The appellant-accused was convicted by the trial court for offences
G
under Section 302 and 376(2)(f) of the Penal Code, 1860 and sentenced to
death: :put th.e High Court altered the sentence to one of imprisonment
for life. He.nee this appeal.

According to the prosecution, S, a young female child aged about 5
H
163
164 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A years, was found brutally ravished and killed. Human blood of Gi'oup-B
'-
was found on the clothes of the deceased. The appellant-accused was
arrested on suspicion and, at his instance, an underwear and 'baniyan'
were found in a dry well. Hu1J1an semen and human blood of Group-B
were detected on the underwear. The following pieces of circumstantial
evidence were against the accused :-
B
(i) last seen together;

(ii) abnormal conduct of the accused;

c (iii) recovery of underwear and 'baniyan' (which was found to be
stained with semen and blood group 'B' which was the blood group of the
deceased);

· (iv) false plea of al~bi; and

D (v) accused absconding since the date of offence.

Allowing the appeals, the Court

HELD : 1. Last seen together
E
To constitute evidence of 'last seen together', the evidence must
definitely permit an inference being drawn that the victim and the accused
were seen together at a point of time in close proximity with the time and
. date of commission of crime. From the evidence of PW·7 such an inference
cannot be drawn. [171-B]
F
2. Abnonnal conduct of accused

Any person even, if innocent, and not connected in any way with a
gruesome crime which had recently occui'~ed and was the talk of the
town, if called by the police and interrogated as a suspect, would be
G scared ·and be apprehensive of the likelihood of his being implicated in the
crime. Placed in such a situation if a villager, unaware of the law, hap-
pens to ask a person, who he feels knows the tJ;tings better than what he
himself does, as to what would be the period\ of incarceration to be
suffered by any person for such an offence the impulse for inquiry may be
H the outcome of a feeling of nervousness or mere inquisitiveness; such
SUBHASH CHAND v. STATE 165
an enquiry js not necessarily suggestive of the working of a criminal A
mind. [172-F-G)

3. Recovery of underwear stained with blood and semen

Presence of semen stain on the underwear, assuming that the under-
wear belonged to the accused, though there is no evidence adduced in this B
regard, is not by itself an incriminating piece of evidence connecting the
accused with the crime in question. So also the discovery of 'B' group
blood-stain on the underwear cannot be treated as an incriminating piece
of evidence again5t the accused connecting him with the crime because
there is no evidence that the underwear belonged to the accused and c
further the possibility of the underwear being stained with the blood of
the person to whom it belonged, or the accused if he was wearing it, has
not been ruled out. [173-H; 174-A-B)

Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR (1981) SC
765, relied on. D
4. False plea of alibi

(a) The purpose of asking questions during examination under Sec-
tion 313 of the Code of Criminal Procedure, 1973 is to afford the accused
personally an opportunity of explaining any incriminating circumstance so E
appearing in evidence against him. The accused may or may not avail of
the opportunity of offering his explanation. [174-F)

(b) Literal meaning of alibi is 'elsewhere'. In law this term is used to
express that defence in a criminal prosecution, where the party accused, in
order to prove that he could not have committed the crime charged against F
him, offers evidence that he was in a different place at the time. The plea
taken should be capable of meaning that having regard to the time and
place when and where he is alleged to have committed the offence, he could
not have been present. The plea of alibi postulates the physical impossibil-
ity of the presence of the accused at the scene of offence by reason of his G
presence at another place. [174-H; 175-A]

Law Lexicon : P. Ramantha Iyer, Second Edn., p.87, referred to.

(c) Denial by an accused of an assertion made by the employer that
the accused was on leave of absence from duty on :he date of offence, does H
166 SUPREME COURT REPORTS . . . [2001] SUPP. 4 S.C.R.
A not, by any stretch of imagination or1ogic, amount to pleading alibi.
[1750-B]

5. Absconding of the accused

The accused was called several times to the police station during the
B course of investigation and; therefore, he was always .availabie to the
police. 1\vo days after the date of the incident the accused was present on
his duty at the cinema hall. There is no evidence .adduced by the prosecu-
tion to hold that .soon after the dat.e of the offence the accused was found
missing from his residence or the place of his employment and was not
available though searched, at the place or places where normally he ought
.C to have been. Hence, it could not have been ·held that the accused was
absconding. [175-G-H]

6.1. None of the pices of evidence relied on as incriminating, by the
trial court and the iligh ·Court, c~n be treated as incriminating pieces of
circumastantial evidence against the accused. Though the offence is grue-
.D some and revolts the human conscience but an accused can be convicted
only on legal evidence and if only a chain of circumstantial evidence has
been so forged as to rule outthe possibility of any other reasonable hypoth-
esis excepting the guilt of the accused. [176-B]

Dhananjoy Chatterjee v. State of West Bengal, [1994] 2 SCC 220,
E Sharad Birdhichand Sarda v. State of Maharashtra, [1984) 4 SCC 116 and
Shankarlal Gyarasilal Dixit v. State of Maharashtra, Affi (1981) SC 765,
relied on.

6.2. Between 'may be true' and 'must be true' there is a long distance
to travel, which must be covered by elear, cogent and unimpeachable
F • evidence by the prosecution before an accused is, condemned a c.onvict.
[176-Cl

7. There are clueless crimes committed. The factum of a cognizable
.crime having been committed is known but neither the identity of the
accused is disclosed nor is there any indication available of the witnesses
G who would be able to furnish useful and relevant evidence. Such offences
put to test the wits of an investigating officer. A vigil:int investigating
officer, well versed with the techniques of the job, is in a position to collect
the threads of evidence finding out the path, which leads to the culprit. The
.ends,.which the administration of criminal justice serves, are not achieved
merely by catching hold of the culprit. The accusation has to be proved to
H
SUBHASH CHAND v. STATE 167
the hilt in a court of. law. The evidence of the investigating officer given in A
the court should have a rhythm explaining step by step how the investiga.
tion proceeded leading to detection of the offender and collection or evi·
dence against him. This is .necessary to exclude the likelihood ·of any
.... innocent having been picked up and branded as culprit and then. the
gravity of the offence arousing human sympathy persuading the mind to B
be carried away by doubtful or dubious circumstances treating them as or
'beyond doubt' evidentiary value. [176-F-H; 177-A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 230-
231 of 1999.
.c
From the Judgment and Order dated 18.12.95 read with 16.l.98 of the
Rajasthan High Court in D.B. Crl. A. Nos. 453 and .455 of 1993.

Sushil Kr. Jain, A. Mishra, Ms. Anjali Doshi and Ms. Rucbi Kohli for
the appellant.
·D
Ms. Sandhya Goswami and Javed·M. Rao.for the Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, j. The accused-appellant bas been held guily of of- : E
fences punishable under Section 302 and Section 376(2)(f) of Indian Penal
Code. The trial Court sentenced the.appellant.to death .under Section 302 IPC
and to undergo rigorous imprisonment for life and pay a fine of Rs. 10,000,
in default of payment to undergo further JU. for 3 yeats, under Section
376(2)(f) IPC. While the learned Additional Sessions Judge made a reference
to the High Court for confirmation· of death sentence under Section 366
F
Cr.P.C., the appellant preferred an appeal putting in issue his conviction and
sentence. The criminal reference and the criminal appeal were heard by a
division bench of Rajasthan High Court. The two learned Jlidg~s. constituting
the divjsion ·bench, differed in their opinion. In the opinion of one learned
Judge, the circumstantial evidence, on .which rests the prosecution case, .was G
not sufficient to record a finding of guilty against the appellant· on any ,of
the charges framed against him. In the opinion of the other learned Judge, the .
prosecution evidence was sufficient to sustain the :conviction, as recorded by
the trial Court, though, the case was not one of those 'rarest of rare cases' .
as would warrant death sentence being awarded to the· appellant. In view ,of H
168 SUPREME CQURT REPORTS [2001] SUPP. 4 S.C.R.
A the difference of opinion 1 the learned acting Chief Justice assigned the case for
. he¥ing, by a third Judge ,i,mder Section 392 ~f Cr.P.C. Th~ third learned Judge
has, on an independent_ appreciation of evidence, recordecJ his own findings

B
upholding the conviction of _the accused on both the charges framed against
. him and thus _agreeing. with one of the two: learned_ Judges constituting the
.division bench in conclusion. In the result, the High Court has declined the
-confirmation of death sentence but.upheld the conviction on both the charges
-
found proved and dismissed the appe?I laying challenge to the_ conviction
subject to modification in the sentence by substituting sentence of life impris-
onment for death sentence uncie'r Section -302 IPC. The accused-appellant has
filed this appeal by special leave. '
c
Kumari S, a young child aged about 5 years, was last seen at about 4 p.m.
on 18th March, 1991 and thereafter she did not return home. At about 7 a.m.
on 19th March 1991, Kishori Lal, PW4 informed BD (PW2), the unfortunate
father of S, that dead body of a girl was lying near Mohalla Basera on the
P outskirts of village Kotputli. BD rushed to the place only to find that the dead
body was of none else than his own daughter S. Blood was oozing out from
' .
her mouth and private parts. A noose was also found around her neck. At 7.25
a.m. on 19.3.1991 first information report was lodged by BD at police station_
Kotputli. Offence was registered under Sections 302 and 376 IPC. The inves-
E tigation commenced. The dead body was sent for post-mortem examination
which was performed at9 .30 a.m., on the same day, by a medical board of three
doctors. It wasfound:that the victim was brutally ravished and thereafter killed.
According to the medical opinion the probable cause of death of S was shock
·produced due to vaginal trauma and rupture ofpost-fornix along with asphyxia
!F . due to ligature around the neck. All injuries found on the person of the victim
: could be around 6 of 24 hours old prior to the time of post-mortem examina-
•.tion. The vaginal injuries, clotted blood and injuries to post-fornix were indica-
. tive of rape having been committed on the victim. The clothes were removed
from the dead body and seize!f. Slides of vaginal swab were prepared for cyto-
chemical analysis for blood and seminal stains. The forensic science laboratory
G _ confirmed presence .of Group-B blood on the clothes of deceased.
: .
. The accused was ~ested on 3.4.1991 on suspi~ion:"On 4.4.1991, he was
f!Iedi~~lly e~~ined. There was no injury on his' ~r.l~~t~ .~arts or on any other
- part of bo<;ly. The clothes on his person did IJOt l,l~ve ~ny blood or seminal
,'.st~ins. He ~as a grown.·up male of 21 years and capa~Jb. pf performing sexual
, . . . ... ' .11 . • '·, ' . .
SUBHASH CHAND v. STATE [LAHOTI, J.) 169
intercourse. On 5.4.1991, at about 12.30 p.m., he gave an information Exbt. A
P/23 and in confirmation of the information led the police to a dry well
wherefrom an underwear and baniyan wrapped in a newspaper dated 18.3.1991
were recovered. The clothes so recovered were sent to forensic science
laboratory. According to report Exbt. P/27 human semen was detected on
underwear. According to report Exbt. P/30 of forensic science laboratory B
human blood of group 'B' was detected on the underwear.

The accused was challaned and charge-sheeted for the offences as al-
ready stated hereinabove.

The prosecution e~amined 21 witnesses in all. It is not necessary here C
to extensively deal with the evidence adduced by the prosecution. Suffice it
to observe that there is no direct evidence connecting the accused with the
offences charged. The prosecution case depends on circumstantial evidence.
The pieces of circumstantial evidence which have been found proved and held
as forging an incriminating chain against the accused are as under :-
D
(i) last seen together;

- (ii) abnormal conduct of the accused;

(iii) recovery of underwear and baniyan (which was found to be
stained with semen and blood group 'B' which is also the blood- E
group of the deceased);

(iv) False plea of alibi; and

(v) Accused absconding since the date of offence.
F

- We would proceed to examine each of the pieces of incriminating
circumstantial evidence so as to find out if each one of the circumstantial
evidence is proved individually and whether collectively it forges such a
chain of incriminating circumstances as would fasten the guilt on the accused
beyond by shadow of reasonable doubt. G
-··
In Dhanm~joy Chatterjee v. State of West Bengal, [1994] 2 SCC 220,
(wherein one of us, Dr. A.S. Anand, J., as His Lordship then was, spoke for
the Bench) this Court held as under :

"In a case based on circumstantial evidence, the circumstances H
170 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A · from which the conclusion of guilt is io be draw.n have not only to be
fully established but also that all the circumstances so established
. should be Of a conclusive nature and consistent only with the hypoth-
esis of the guilt of the accused. Those circumstances should not be
capable of being explained by any other hypothesis except the guilt
B of the accused and the chain of the evidence must be so complete as
not to leave any reasonable ground for the belief consistent with the
innocence of the accused. It needs no reminder that legally estab-
lished circumstances and not merely indignation of the court can form
the basis of conviction and the more serious the crime, the greater
should be the care taken to scrutinize the evidence lest suspicion takes
c the place of proof.

JnDhananjoy Chatterjee's case (supra), the decision of this. Court in
Sharad Birdhichand Sarda v. State ofMaharashtra, [1984] 4 SCC 116, was
relied on. In the later case; .itwas also held that a fals~ explanation or false
D plea taken by the accused can be used as an additional link in the chain of
circumstantial evidence subject to satisfication of three essential :eonditions,
namely (i) various links in the chain of evidence led by the pros~ution have
been satisfactorily proved, (ii) the said circumstance points to the guilt of the .
accused with reasonable definiteness, and (iii) the circumstance is in proxim-
E ity to the time and situation.

(i) Last seen together :

On the point of last seen together thetf! is solitary testimony· of a child
witness Shalu, PW7, aged about.4 years on/23.3.1992, the date of her
.F examination in the court. On asking a few ql!estiOns by way of preliminary
examination the le.acned Trial Judge found that the witness could 'answer
some of the questions'. She stated thii.t, accompanied by .Phukla-another
young girl, a cousin of hers, and S the deceased, she had gone to purchase·
-
balloon from the shop of Goma. While returning the accused told S that her
feet were mudstained and he would wash. her feet and saying so he took S
G
inside his house, leaving behind the two girls, inducting Shalu PW7, who
returned to their houses leaving S. behind.

It is this testimony which has been relied upon by the Trial Court as
also by the High Court as the evidence of 'last seen together'. The witness
H is a child witness of very tender age and examined in the Court almost a year
SUBHASH CHAND v. STATE [LAHOTI, J.) 171
after the date of the incident. We have very carefully read the statement of this A
witness. There is nothing in her statement to suggest that what she is narrating
in the court is the story of a day soon before the date and tiU1e of the incident
or the date on which dead body of S was found. To constitute ev.idence of last
seen together, the evidence must definitely permit an inference being drawn
that the victim and the accused were seen together at a point of time in close . B
proximity with the time and date of the commission of crime. From the evi-
dence of Shalu, PW7 such an inference cannot be drawn.

Goma, to whose shop the three girls had gone to buy balloon, has not
been examined.
c
There is something mysterious about the discovery of Shalu as a witness
to the incident. S has died. The third girl who was with S and Shalu has not
been examined either in the Court or during investigation. T~e statement of
Shahu was recorded during investigation on 25.3.1991, i.e. about six days
after the date of incident. Harish Chand Sharma, the Investigating Officer, D
was specifically asked how the name of this witness came to his knowledge
during investigation? He gave an evasive answer saying that the fact that Shalu
was accompanying S 'must have come in the staement of the witnesses'; He
was further asked to name the witness in whose statement Shalu's reference
was available but the investigation officer drew a blank and could not tell the
name of the witness from whom any clue as to Shalu was received by him. Thus E
how and in what manner the investigating officer came to learn about Shalu,
PW7 so as to record her statement during investigation remains shrounded in
mystery.

The fact remains that the testimony of Shalu, PW 7 aged 4 years, even F
if taken at its face value, does not constitute such a circumstance as to draw
an incriminating inference against the accused and connect him with the
crime.

(ii) Abnonnal conduct of accused
G
Kalu Ram, PWS stated that two or three days after the date of dead body
of S having been found, he and Santosh, PW9 had gone to see a movie in a
cinema hall where the accused was employed as a gate-keeper. There the
accused had enquired from them as to what was the punishment awardable
to an offender who was found to have been committed rape on a girl and killed H
172 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A her. The accused was told by the witness that the punishment could be 20 or
even 40 years of imprisonment or imprisonment for life. Thereafter. the wit-
nesses went to see movie in the cinema hall. During cross-examination, Kalu
Ram stated that the accused was his neighbour, previously known to him. On
,;a p~rtinent question the witness stated that while makirig such a query there was
.B no change in; the facial expression of the accused, that is, he had remained
normal.

Santosh, PW9, did not support the version of Kalu Ram and was declared
hostile. Without going into the question as to whether the statement of Kalu
Ram, PW5 is to be believed or not in view of the same having not been
c supported by Santosh PW9, let us assess the intrinsic value of such testimony
as a·piece of incriminating evidence.

It appears that to begin with the death of S was a blind murder and the
police was clue-less about the likely offender. The police appears to have
embarked upon a search akin ·to a combing operation and in that process
several suspected characters were called and interrogated. Harish Chand
.Sharma, PW21 stated that between 19th and 25th March, 1991 the accused
Subhash was called at the police station several times for making enquiries.
He did not remember and was therefore not in a position to tell how many
number of times the accused Subhash was called for interrogation or making
E enquiries. On seeing the case diary he stated that on 21.3.1991 the accused
was definitely called twice on the same day though there is no mention of
what enquiries were made from him. However, the accused was not detained
and was sent back. Any person even if innocent and not connected in any way
with a gruesome crime which had recently occurred and was talk of the town,
F if called by police and interrogated as a suspect, would be scared and be
apprehensive of the likelihood of his being implicated in the crime. Placed
in such situation if a villager, unaware of the law, happens to ask a person,
who he feels knows the things better than what he himself does, as to what
would be the period of incarceration to be suffered by any person for such
G an offonce the impulse for inquiry may be outcome of a feeling of nervousness
or mere inquisitiveness; such an enquiry is not necessarily suggestive of the
working of a criminal mind.

(iii) Recovery of undenvear stained with h_lood and semen

H Strangely enough the underwear and baniyan though discovered and
SUBHASH CHAND v. STATE [LAHOTI, J.] 173
seized, on an information given by the accused and on his pointing out A
apparently on a statement recorded under Section 27 of the Eyidence Act,
have not been produced and exhibited in the court. What happened to
these clothes is not known? There is not investigation directed towards
finding out and no evidence worth its name collected and adduced in the
court to show that the underwear and baniyan were of the accused. Insofar as B
baniyan is concerned, it has no stains of any type on it and therefore its
discovery and seizure is meaningless and irrelevant. So far as the underwear
is concerned, the investigation suffers from another infirmity also. Blood sam-
ple of the accused was not collected and therefore not grouped. No evidence
is available to show as to what was the blood group of the a~cused and therefote
the possibility of blood on the underwear being of the accused himself cannot
c
be and is not ruled out. The number and extent of spread of stains is also not
known.

Shri Sushil Kumar Jain, the learned counsel for the accused-appellant
has placed reliance on Shankarlal Gyarasilal Dixit v. State of Maharashtra, D
AIR (1981) SC 765. Therein a charge under Sections 376 and 302 IPC was

- sought to be substantiated on circumstanctial evidence. One of the circumstan-
tial evidence relied on was that a human blood stain of 'B' group was found
on the accused's pant which blood group was also of the deceased. Another
circumstantial evidence relied on was that a stain of semen was found on the E
under-pant of the accused. Vide para 28, this Court held that the presence of
blood-stain of 'B' group measuring 0.5 cm. in diameter on the appellant's pant
and of a dried stain of semen on his under-pant, were circumstances for too
feeble to establish that the appellant raped or murdered the victim. 'B' group
is not uncommon group of blood and no effort was made to exclude the F
possibility that the blood of the accused belonged to the same group. As regards
the dried stain of semen on the appellant's under-pant, the court observed that
the accused was .a grown-up man of 30 years and no compelling inference
could arise that the stain was caused during the course of the sexual assault
committed by him on the victim girl.
G
In the present case the age of the accused was about 21 years at the time
of the incident. On his arrest he was subjected to medical examination and
found to be a potent and capable person. Presence of semen stain on underwear,
assuming that the underwear belonged to the accused though there is no
evidence adduced in this regard, is not by itself an incriminating piece of H
174 SUPREME COURT REPORTS (2001) SUPP. 4 S.C.R.
A evidence connecting the accused with the crime in question. So also the discov~
ery of 'B' group blood-stain qn the underwear cannot be treated as an incrimi- ·
nating piece of evidence against the accused connecting him with the crime
because there is no evidence that the underwear belonged to the accused and
fur~her the posslblity of the underwear being stained with the blood of the
B person to whom it belonged, or the accused if he was wearing it has not been
ruled out.

(iv) False plea of alibi

The High Court has gone completely amiss in holding that a plea of alibi
c was taken by the accused and that was found to be false. The accused has not
stated during his statement. under Section 313 Cr.P.C. and nowhere suggested
during cross-examination of prosecution witnesses that at the time of the
incident he was at a place wherefrom he could not have reached the place of
the offence on the dat~ and at the time of its commission. Although the dead
D body of the victim was found on the outskirts of the village, however, there
is no material available on record to fix the place and the likely time at which
rape was committed on S and then she was murdered. What is being
treated as the plea of alibi by the trial court and the. High Court is this.
The accused appears to have been engaged as a causal (not regular) gate-
E keeper at 'Hira Moti'-a local talkies. The proprietor of the cinema hall
was examined to state that on 18th and 19th March the accused had taken
leave from his job and during those days he was not present on duty. This piece
of evidence was put to the accused during his statement under Section 313
Cr.P.C. and in reply he stated 'Ga/at Hai' (not correct). The purpose of asking
questions during examination und0r Section 313 Cr.P.C. is to afford the accused
F
personally an opportunity of explaining any incriminating circumstance so
appearing in evidence against him. The accused may or may not avail the
opportunity for offering his explanation. The accused did not avail the
opportunity and stood short by simply stating that the statement of cinema
owner was not correct.
G
Literal meaning of alibi is 'elsewhere''. In law th·is term is used to express
that defence in a criminal prosecution; where the party accused, in order to
. prove that he could not have committed .the crime charged against him, offers
evidence that he was in· a different place at that time. The plea taken should
H be capable of meaning that having regard to the time and place when and where
SUBHASH CHAND v. STATE [LAHOTI, J.] 175
he is alleged to have committed the offence, he could not have been present. A
The plea of alibi postulates the physical impossibility of the presence of the
accused at the scene of offence by reason of his presence at another place. (See
Law Lexicon, P. Ramnath Iyer, Second Edition, P.87). Denial by an accused
of an assertion made by his employer that the accused was on leave of absence
from duty on the date ofoffence does not, by any stretch of reasoning or logic, B
amount to pleading· alibi.

We are clearly of the opinion that the accused-appellant has not taken a
plea of alibi and therefore the question of finding it false, and then drawing an
inference adverse to him, does not arise at all.
c
(v) Absconding of the accused

Was the accused absconding at all? Grave injustice has been done to the
r
accused by holding it as a fact that the accused was absconding after the date
of the incident and then treating the so-called absconding as a piece of incrimi- D
nating circumstantial evidence against the accused. According to Harish Chand
Sharma, the accused was arrested on 3.4.1991 (vide Exbt. P/21) at Behror,
which is a place situated at a distance of about 30-35 kms. from village Kotputli
where the incident had taken place. Though the accused is alleged to have been
arrested at .Behror but the memo of arrest was not prepared at Behror; it was E
prepared at village Kotputli. The memo of arrest does not state the arrest of
accused having been made at Behror. If the accused was arrested at Behror
there is no reason why the memo of arrest should not have been prepared at
village Behror. At lease this fact should have been mentioned in the memo of
arrest even if the same was prepared at village Kotputli. Secondly, Harish
F
Chand Sharma himself states· that between 19.3.1991 and 25.3.1991 the ac-
cused was called several times at the police station and on 21.3.1991 itself he
· was called twice in a day. Thus, he was always available to the police.
Kalu Ram, PWS, accompanied by a friend Santosh, PW9, had gone to
see a movie in cinema talkies Heera-Moti two days after the date of the
/ \ incident and there the accused was present on his duty. There is no evidence G
J
•
adduced by the prosecution to hold that soon after the date of the offence the
accused was found missing from his residence or the place of his employment
and was not available, ~hough searched, at the place or places where normally
· he ought to have been. Hence, it could not have been held that the accused was
absconding. H
176 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A Conclusion

Thus, none of the pieces of evidence relied on as incriminating, by the
trial court and the High Court, can be treated as incriminating pieces of
circumstantial evidence against the accused. Though the offence is gruesome ·
and revolts the human conscience but an accused cari be convicted~ only on
B
legal evidence and if only a chain of circumstantial evidence has been so forged
as to rule out the possibility of ahy other reasonable hypothesis excepting the
guilt of the accused. In Shankarlal Gyarasilal Dixit's case (supra), this Court
cautioned - "human nature is too willing; when faced. with brutal crimes, .to
spin stories out of strong suspicions". This Court has held time and again that
c between may be true and must be true there is a: long distance to travel which
must be covered by clear, cogent and unimpeachable evidence by the prosecu-
tion before an accused is condemned a convict

The Trial Court and the High Court have proceeded 'on an assumption
D of availability of five pieces forging links in the chain of circumstantial evi-
dence out of which we have found, as stated hereinabove, four of the .alleged
circumstances not to be pieces of incriminating circumstantial evidence at all.
We are left with circumstance no. 3 only, i.e.; recovery of underwear and
baniyan stained with semen and human blood group 'B', which alone, in the
·E fact and circumstances of the case discussed hereinabove cannot foi:m basis of
conviction of the accused-appellant for the offence charged. '

Before parting with the case we would like to place on record, an
observation of ours, touching an aspect of the case. There are clueless crimes
committed. The factum of a cognizable crime having been committed is
F known but neither the identity of the accused is disclosed nor is there any
indication available of the witnesses who would be able to furnish useful and
relevant evidence. Such offences put to test the wits of an investigating officer.
A vigilant investigating officer, well-versed with the techniques of the job; is
in a position to collect the threads of evidence finding out the path which leads
G to the culprit. The ends, which the administration of cirminal justice serves, are
not achieved merely by catching hold of the culprit. The accusation has to be
proved to :hilt in a court of law. The evidence of investigating officer given in
the court should have a rhythm explaining step by step how the investigation
proceeded leading to detection of the .offender and collection Of evidence
H against him. This is necessary to exclude the likelihood of any innocent having
SUBHASH CHAND v. STATE [LAHOTI, J.] 177
been picked up and branded as culprit and then the gravity of the offence A
arousing human sympathy persuading the mind to be carried away by doubtful
or dubious circumstances treating them as of 'beyond doubt' evidentiai-y value.

The appeals are allowed. Conviction of the accused-appellant under
Sections 302 and 376(2)(f) of Indian Penal Code is set aside. He is acquitted
of the charges framed against him. He shall be set at liberty forthwith if not B
required to be detained in connection with any other offence.

v.s.s. Appeals allowed.