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There is something mysterious about the discovery of Shalu as a witness to the incident Ratio |
S has died Ratio |
The third girl who was with S and Shalu has not been examined either in the Court or during investigation Ratio |
The statement of Shahu was recorded during investigation on 25.3.1991, i.e. about six days after the date of incident Ratio |
Harish Chand Sharma, the Investigating Officer, was specifically asked how the name of this witness came to his knowledge during investigation Ratio |
He gave an evasive answer saying that the fact that Shalu was accompanying S 'must have come in the staement of the witnesses Ratio |
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 Ratio |
Thus 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 Ratio |
The fact remains that the testimony of Shalu, PW 7 aged 4 years, even 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 Ratio |
ii Ratio |
Abnormal conduct of accused Kalu Ram, PW5 stated that two or three days after the date of dead body of S having been found Ratio |
he and Santosh Ratio |
PW9 had gone to see a movie in a cinema hall where the accused was employed as a gate-keeper Ratio |
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 her Ratio |
The accused was told by the witness that the punishment could be 20 or even 40 years of imprisonment or imprisonment for life Ratio |
Thereafter the wit- nesses went to see movie in the cinema hall Ratio |
During cross-examination, Kalu Ram stated that the accused was his neighbour, previously known to him Ratio |
On a pertinent question the witness stated that while making such a query there was no change in the facial expression of the accused, that is, he had remained normal Ratio |
Santosh, PW9, did not support the version of Kalu Ram and was declared hostile Ratio |
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 supported by Santosh PW9, let us assess the intrinsic value of such testimony as a piece of incriminating evidence Ratio |
It appears that to begin with the death of S was a blind murder and the police was clue-less about the likely offender Ratio |
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 Ratio |
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 Ratio |
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 enquiries Ratio |
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 Ratio |
However, the accused was not detained and was sent back Ratio |
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, 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 Ratio |
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 an offence the impulse for inquiry may be outcome of a feeling of nervousness or mere... |
iii) Recovery of underwear stained with blood and semen Strangely enough the underwear and baniyan though discovered and seized, on an information given by the accused and on his pointing out apparently on a statement recorded under Section 27 of the Evidence Act, have not been produced and exhibited in the court Ratio |
What happened to these clothes is not known Ratio |
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 Ratio |
Insofar as baniyan is concerned, it has no stains of any type on it and therefore its discovery and seizure is meaningless and irrelevant Ratio |
So far as the underwear is concerned, the investigation suffers from another infirmity also Ratio |
Blood sam-ple of the accused was not collected and therefore not grouped Ratio |
No evidence is available to show as to what was the blood group of the accused and therefore the possibility of blood on the underwear being of the accused himself cannot be and is not ruled out Ratio |
The number and extent of spread of stains is also not known Ratio |
Shri Sushil Kumar Jain, the learned counsel for the accused-appellant has placed reliance on Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR (1981 ARG |
SC 765 1980 Indlaw SC 47 ARG |
Therein a charge under Sections 376 and 302 IPC was sought to be substantiated on circumstanctial evidence ARG |
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 ARG |
Another circumstantial evidence relied on was that a stain of semen was found on the under-pant of the accused ARG |
This Court held that the presence of blood-stain of 'B' group measuring 0.5 cm ARG |
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 ARG |
B' group is not uncommon group of blood and no effort was made to exclude the possibility that the blood of the accused belonged to the same group ARG |
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 ARG |
In the present case the age of the accused was about 21 years at the time of the incident ARG |
On his arrest he was subjected to medical examination and found to be a potent and capable person ARG |
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 evidence connecting the accused with the crime in question ARG |
So also the discov-ery of 'B' group blood-stain on 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 further the possiblity of the underwear being stained with the blood of ... |
False plea of alibi Ratio |
The High Court has gone completely amiss in holding that a plea of alibi was taken by the accused and that was found to be false Ratio |
The accused has not stated during his statement under Section 313 Cr Ratio |
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 date and at the time of its commission Ratio |
Although the dead 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 Ratio |
What is being treated as the plea of alibi by the trial court and the High Court is this Ratio |
The accused appears to have been engaged as a causal (not regular) gate-keeper at 'Hira Moti'-a local talkies Ratio |
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 Ratio |
This piece of evidence was put to the accused during his statement under Section 313 Cr Ratio |
P.C. and in reply he stated 'Galat Hai' (not correct Ratio |
The purpose of asking questions during examination under Section 313 Cr Ratio |
P.C. is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him Ratio |
The accused may or may not avail the opportunity for offering his explanation Ratio |
The accused did not avail the opportunity and stood short by simply stating that the statement of cinema owner was not correct Ratio |
Literal meaning of alibi is 'elsewhere Ratio |
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 him, offers evidence that he was in a different place at that time Ratio |
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 Ratio |
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 Ratio |
See Law Lexicon, P. Ramnath Iyer, Second Edition, P.87 Ratio |
Denial by an accused of an assertion made by his employer that the accused was on leave of absence from duty on the date of offence does not, by any stretch of reasoning or logic, amount to pleading alibi Ratio |
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 Ratio |
v) Absconding of the accused Was the accused absconding at all Ratio |
Grave injustice has been done to the 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-nating circumstantial evidence against the accused Ratio |
According to Harish Chand Sharma, the accused was arrested on 3.4.1991 (vide Exbt Ratio |
P/21) at Behror, which is a place situated at a distance of about 30-35 kms Ratio |
from village Kotputli where the incident had taken place Ratio |
Though the accused is alleged to have been arrested at Behror but the memo of arrest was not prepared at Behror; it was prepared at village Kotputli Ratio |
The memo of arrest does not state the arrest of accused having been made at Behror Ratio |
If the accused was arrested at Behror there is no reason why the memo of arrest should not have been prepared at village Behror Ratio |
At least this fact should have been mentioned in the memo of arrest even if the same was prepared at village Kotputli Ratio |
Secondly, Harish 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 Ratio |
Thus, he was always available to the police Ratio |
Kalu Ram, PW5, 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 Ratio |
There is no evidence 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, though searched, at the place or places where normally he ought to have been Ratio |
Hence, it could not have been held that the accused was absconding Ratio |
Conclusion Ratio |
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 Ratio |
Though the offence is gruesome 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 out the possibility of any other reasonable hypothesis excepting the guilt of the accused Ratio |
In Shankarlal Gyarasilal Dixit's case 1980 Indlaw SC 47 (supra), this Court cautioned - "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions Ratio |
This Court has held time and again that 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 Ratio |
The Trial Court and the High Court have proceeded on an assumption 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 Ratio |
We are left with circumstance no Ratio |
3 only, i.e., recovery of underwear and baniyan stained with semen and human blood group 'B', which alone, in the fact and circumstances of the case discussed hereinabove cannot form basis of conviction of the accused-appellant for the offence charged Ratio |
Before parting with the case we would like to place on record, an observation of ours, touching an aspect of the case Ratio |
There are clueless crimes committed Ratio |
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 who would be able to furnish useful and relevant evidence Ratio |
Such offences put to test the wits of an investigating officer Ratio |
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 to the culprit Ratio |
The ends, which the administration of cirminal justice serves, are not achieved merely by catching hold of the culprit Ratio |
The accusation has to be proved to hilt in a court of law Ratio |
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 against him Ratio |
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