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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.592 OF 2010
RAMESH
Vs.
STATE THROUGH INSPECTOR OF POLICE ……
Read original judgment here; click here
V.GOPALA GOWDA, J.
Citation; AIR 2014 SC2853
This appeal is filed by the appellant being
aggrieved by the judgment and order dated 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.
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 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 the
prosecution has examined the appellant under Section
313 of the Cr.P.C. regarding incriminating
circumstances found in the evidence of the
prosecution. The trial court recorded the finding of
fact on appreciation of legal evidence on record and
convicted the accused and sentenced him for life
imprisonment 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 imprisonment and payment of fine
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CRL.A. NO.592 OF 2010
of Rs.5000/- in default to undergo one year 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.
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 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
grains 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 same to her. Thereafter, the deceased-child
went to the mill and asked the appellant whether the
grains were grinded. At that time, she was taken to
the back side of the mill by the appellant. Since, the
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CRL.A. NO.592 OF 2010
deceased-child did not return, PW-3 having waited for
some time went home. It is the further case of the
prosecution that the 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-12 left for lunch. Then, the accused
committed rape on the deceased-child and due to
neurogenic shock she died. Since, the 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
security in that area found the appellant opening the
mill unusually at that time. On being questioned, the
appellant said that since the next day is 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
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CRL.A. NO.592 OF 2010
to what he was doing during 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-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 FIR No. 146/2005 under
Section 174 Cr.P.C. Ex.-P23 (the FIR) was dispatched
to the court. The 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.O.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
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 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 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 made
an inspection in the presence of the witnesses and
prepared the observation mahazar (Ex.-P2) and the
rough sketch (Ex.-P25). 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
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CRL.A. NO.592 OF 2010
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 the Mill and produced the
M.O.2 (Shawl) which was worn by the deceased-child at
the time of the occurrence and the same was 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.-P5, the
observation mahazar and Ex.-P27, the rough sketch.
Following the same, the appellant was sent for medical
examination. PW-14, the doctor attached to the
Government Hospital, Ramanathapuram, medically
examined 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 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-
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CRL.A. NO.592 OF 2010
child as also the material objects recovered from the
appellant were sent for chemical analysis by the
Forensic Science Department. 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 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 circumstances found in the evidence of
prosecution witnesses which was denied by him. The
trial court on appreciation of 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.
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CRL.A. NO.592 OF 2010
5. Aggrieved by the said order of the learned trial
judge, 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 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 framing certain substantial
questions of law urging the following grounds.
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 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
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CRL.A. NO.592 OF 2010
inquest enquiry and such irregularities on the part
of the investigating agency vitiates the entire
proceedings under 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 Rajasthan1 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
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 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
1
(2013) 5 SCC 722
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CRL.A. NO.592 OF 2010
this Court in the case of Baldev Singh v. State of
Haryana2 and further contended that 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 reliance was placed on the
judgment in Raghunath v. State of Haryana and Anr.3 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 upon the judgment of this Court in
Devinder Singh & Ors. v. State of Himachal Pradesh4.
And another legal ground 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
2 (2008) 14 SCC 768
3 (2003) 1 SCC 398
4 (2003) 11 SCC 488
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CRL.A. NO.592 OF 2010
inadmissible evidence. 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 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 been proved by the prosecution and
further the courts below have mis-directed themselves
with regard to the investigation made by PW-21 and the
circumstances placed on record on 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.
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CRL.A. NO.592 OF 2010
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 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 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 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-
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CRL.A. NO.592 OF 2010
mortem on the deceased-child. Even on the police
requisition, it was not mentioned that it is the case
of rape and murder. 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 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 I.O. in this case has brought several divergent
facts among the 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, colabour
in the mill, who had stated that he and the
appellant were in police custody from 4.11.2005
onwards. Later, he was treated as prosecution witness.
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CRL.A. NO.592 OF 2010
Therefore, the alleged arrest of the appellant as
stated by IO in his evidence is not correct and
further at the instance of the appellant, the material
object (shawl) alleged to have 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 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 to mentioning on
Column No. 25 in Ex.-P-21, he admitted that “while
going for having juice, somebody cornered the girl and
molested her inside the house”. But, in the postmortem
requisition, he did not ask to conduct
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CRL.A. NO.592 OF 2010
examination as to whether any rape has been committed
on her. At the same time, he is 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 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). He had also further admitted
that he has not prepared any observation mahazar or
rough sketch about the inside of the mill. Though he
examined the adjacent shop owners but those shops have
not been shown in his observation 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
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CRL.A. NO.592 OF 2010
admitted that PW-3 has not stated anything about the
appellant who collected things for grinding and
returned the same.
10. Further, the courts below have not considered the
evidence of PW-3 who has stated in her second enquiry
that 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 basis of incredible 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 instance of the appellant
which is not admissible unless the recovery of shawl
is proved from the other cogent evidence. It is
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CRL.A. NO.592 OF 2010
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 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 proper analysis and reappreciation
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 not naming the accused in the FIR
does not 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 in
Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr.5
5 (2013) 12 SCC 796
and Ramnaresh & Ors. v. State of Chhattisgarh6
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 courts below in
framing charges against the appellant by placing
reliance upon the judgment in Budhuram v. State of
Chhattisgarh7.
12. The learned counsel on behalf of the prosecution
invited our attention to the evidence of the
prosecution which 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
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
6 (2012) 4 SCC 257
7 (2012) 11 SCC 588
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CRL.A. NO.592 OF 2010
which are referred to above do not support the case of
the appellant. Therefore, the learned 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 evidence on record.
Hence, the learned counsel requested for dismissal of
the appeal by affirming the conviction and sentence
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 the findings recorded on
the charges levelled against the appellant.
14. Three main points come up for the consideration in
the present case:
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 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
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 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. P1 initially did not mention the
name of the accused and on the other hand, PW-1,
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 has been further corroborated 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. 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. State of Haryana8:-
“16. As already noticed, the FIR (Ext.
P-2) had been registered by ASI Hans
Raj, PW 13 on the statement of Ishwar
Singh, PW 11. It is correct that the
name of accused Jitender, son of
Sajjan Singh, was not mentioned by PW
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
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 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
accused. The court has to examine
8 (2012) 6 SCC 204
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CRL.A. NO.592 OF 2010
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.
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
such name might have been revealed at
the earliest 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 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 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 on which the prosecution
relies. It only has to state the basic
case. The attending circumstances of
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CRL.A. NO.592 OF 2010
each case 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.”
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.
Answer to point no. 2
16. It is 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 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
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 been held by this Court in
the case of Kusuma Ankama Rao v. State of Andhra
Pradesh9 as under:
9 (2008) 13 SCC 257
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CRL.A. NO.592 OF 2010
“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 U.P. v. Satish it was noted
as follows: (SCC p. 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 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
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 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)
In Ramreddy Rajesh Khanna Reddy v. 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 accused and the deceased were
last seen alive and the deceased is
found dead is so small that
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CRL.A. NO.592 OF 2010
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.”
In the case in hand, the deceased child was taken to
the 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 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 point
in favour of the respondent.
Answer to point no. 3
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CRL.A. NO.592 OF 2010
17. 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
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 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 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 High
Court therefore, is justified in construing that the
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CRL.A. NO.592 OF 2010
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 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 the present case. It has been held by five judge
bench of this Court in the case of Govinda Reddy &
Anr. v. State of Mysore10 as under:
“5. The mode of evaluating circumstantial
evidence has been stated by this Court in
Hanumant Govind 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
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
10 AIR 1960 SC 29
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CRL.A. NO.592 OF 2010
circumstances should 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
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 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 deceased child to the backyard
of the mill, sending of his 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.
20. Since, all the points are answered in favour of
the respondent, we hold that the High Court was
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CRL.A. NO.592 OF 2010
correct in upholding the decision of the Sessions
Judge in convicting the accused of rape and murder of
the deceased child. We therefore, sustain the decision
of the High Court and hold that the charges under
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, 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.
……………………………………………………J.
[DIPAK MISRA]
……………………………………………………J.
[V. GOPALA GOWDA]
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CRL.A. NO.592 OF 2010
New Delhi,
August 1, 2014
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Page 32
Print Page
decision of the High Court that non mentioning of the
name in the initial FIR is not fatal to the case of
the prosecution.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.592 OF 2010
RAMESH
Vs.
STATE THROUGH INSPECTOR OF POLICE ……
Read original judgment here; click here
V.GOPALA GOWDA, J.
Citation; AIR 2014 SC2853
This appeal is filed by the appellant being
aggrieved by the judgment and order dated 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.
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 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 the
prosecution has examined the appellant under Section
313 of the Cr.P.C. regarding incriminating
circumstances found in the evidence of the
prosecution. The trial court recorded the finding of
fact on appreciation of legal evidence on record and
convicted the accused and sentenced him for life
imprisonment 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 imprisonment and payment of fine
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CRL.A. NO.592 OF 2010
of Rs.5000/- in default to undergo one year 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.
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 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
grains 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 same to her. Thereafter, the deceased-child
went to the mill and asked the appellant whether the
grains were grinded. At that time, she was taken to
the back side of the mill by the appellant. Since, the
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CRL.A. NO.592 OF 2010
deceased-child did not return, PW-3 having waited for
some time went home. It is the further case of the
prosecution that the 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-12 left for lunch. Then, the accused
committed rape on the deceased-child and due to
neurogenic shock she died. Since, the 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
security in that area found the appellant opening the
mill unusually at that time. On being questioned, the
appellant said that since the next day is 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
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CRL.A. NO.592 OF 2010
to what he was doing during 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-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 FIR No. 146/2005 under
Section 174 Cr.P.C. Ex.-P23 (the FIR) was dispatched
to the court. The 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.O.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
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 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 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 made
an inspection in the presence of the witnesses and
prepared the observation mahazar (Ex.-P2) and the
rough sketch (Ex.-P25). 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
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CRL.A. NO.592 OF 2010
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 the Mill and produced the
M.O.2 (Shawl) which was worn by the deceased-child at
the time of the occurrence and the same was 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.-P5, the
observation mahazar and Ex.-P27, the rough sketch.
Following the same, the appellant was sent for medical
examination. PW-14, the doctor attached to the
Government Hospital, Ramanathapuram, medically
examined 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 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-
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CRL.A. NO.592 OF 2010
child as also the material objects recovered from the
appellant were sent for chemical analysis by the
Forensic Science Department. 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 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 circumstances found in the evidence of
prosecution witnesses which was denied by him. The
trial court on appreciation of 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.
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CRL.A. NO.592 OF 2010
5. Aggrieved by the said order of the learned trial
judge, 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 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 framing certain substantial
questions of law urging the following grounds.
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 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
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CRL.A. NO.592 OF 2010
inquest enquiry and such irregularities on the part
of the investigating agency vitiates the entire
proceedings under 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 Rajasthan1 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
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 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
1
(2013) 5 SCC 722
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CRL.A. NO.592 OF 2010
this Court in the case of Baldev Singh v. State of
Haryana2 and further contended that 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 reliance was placed on the
judgment in Raghunath v. State of Haryana and Anr.3 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 upon the judgment of this Court in
Devinder Singh & Ors. v. State of Himachal Pradesh4.
And another legal ground 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
2 (2008) 14 SCC 768
3 (2003) 1 SCC 398
4 (2003) 11 SCC 488
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CRL.A. NO.592 OF 2010
inadmissible evidence. 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 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 been proved by the prosecution and
further the courts below have mis-directed themselves
with regard to the investigation made by PW-21 and the
circumstances placed on record on 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.
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CRL.A. NO.592 OF 2010
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 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 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 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-
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CRL.A. NO.592 OF 2010
mortem on the deceased-child. Even on the police
requisition, it was not mentioned that it is the case
of rape and murder. 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 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 I.O. in this case has brought several divergent
facts among the 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, colabour
in the mill, who had stated that he and the
appellant were in police custody from 4.11.2005
onwards. Later, he was treated as prosecution witness.
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CRL.A. NO.592 OF 2010
Therefore, the alleged arrest of the appellant as
stated by IO in his evidence is not correct and
further at the instance of the appellant, the material
object (shawl) alleged to have 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 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 to mentioning on
Column No. 25 in Ex.-P-21, he admitted that “while
going for having juice, somebody cornered the girl and
molested her inside the house”. But, in the postmortem
requisition, he did not ask to conduct
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CRL.A. NO.592 OF 2010
examination as to whether any rape has been committed
on her. At the same time, he is 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 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). He had also further admitted
that he has not prepared any observation mahazar or
rough sketch about the inside of the mill. Though he
examined the adjacent shop owners but those shops have
not been shown in his observation 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
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CRL.A. NO.592 OF 2010
admitted that PW-3 has not stated anything about the
appellant who collected things for grinding and
returned the same.
10. Further, the courts below have not considered the
evidence of PW-3 who has stated in her second enquiry
that 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 basis of incredible 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 instance of the appellant
which is not admissible unless the recovery of shawl
is proved from the other cogent evidence. It is
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CRL.A. NO.592 OF 2010
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 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 proper analysis and reappreciation
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 not naming the accused in the FIR
does not 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 in
Mritunjoy Biswas v. Pranab Alias Kuti Biswas and Anr.5
5 (2013) 12 SCC 796
and Ramnaresh & Ors. v. State of Chhattisgarh6
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 courts below in
framing charges against the appellant by placing
reliance upon the judgment in Budhuram v. State of
Chhattisgarh7.
12. The learned counsel on behalf of the prosecution
invited our attention to the evidence of the
prosecution which 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
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
6 (2012) 4 SCC 257
7 (2012) 11 SCC 588
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CRL.A. NO.592 OF 2010
which are referred to above do not support the case of
the appellant. Therefore, the learned 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 evidence on record.
Hence, the learned counsel requested for dismissal of
the appeal by affirming the conviction and sentence
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 the findings recorded on
the charges levelled against the appellant.
14. Three main points come up for the consideration in
the present case:
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 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
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 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. P1 initially did not mention the
name of the accused and on the other hand, PW-1,
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 has been further corroborated 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. 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. State of Haryana8:-
“16. As already noticed, the FIR (Ext.
P-2) had been registered by ASI Hans
Raj, PW 13 on the statement of Ishwar
Singh, PW 11. It is correct that the
name of accused Jitender, son of
Sajjan Singh, was not mentioned by PW
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
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 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
accused. The court has to examine
8 (2012) 6 SCC 204
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CRL.A. NO.592 OF 2010
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.
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
such name might have been revealed at
the earliest 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 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 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 on which the prosecution
relies. It only has to state the basic
case. The attending circumstances of
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CRL.A. NO.592 OF 2010
each case 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.”
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.
Answer to point no. 2
16. It is 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 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
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 been held by this Court in
the case of Kusuma Ankama Rao v. State of Andhra
Pradesh9 as under:
9 (2008) 13 SCC 257
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CRL.A. NO.592 OF 2010
“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 U.P. v. Satish it was noted
as follows: (SCC p. 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 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
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 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)
In Ramreddy Rajesh Khanna Reddy v. 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 accused and the deceased were
last seen alive and the deceased is
found dead is so small that
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CRL.A. NO.592 OF 2010
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.”
In the case in hand, the deceased child was taken to
the 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 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 point
in favour of the respondent.
Answer to point no. 3
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CRL.A. NO.592 OF 2010
17. 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
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 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 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 High
Court therefore, is justified in construing that the
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CRL.A. NO.592 OF 2010
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 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 the present case. It has been held by five judge
bench of this Court in the case of Govinda Reddy &
Anr. v. State of Mysore10 as under:
“5. The mode of evaluating circumstantial
evidence has been stated by this Court in
Hanumant Govind 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
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
10 AIR 1960 SC 29
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CRL.A. NO.592 OF 2010
circumstances should 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
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 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 deceased child to the backyard
of the mill, sending of his 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.
20. Since, all the points are answered in favour of
the respondent, we hold that the High Court was
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CRL.A. NO.592 OF 2010
correct in upholding the decision of the Sessions
Judge in convicting the accused of rape and murder of
the deceased child. We therefore, sustain the decision
of the High Court and hold that the charges under
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, 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.
……………………………………………………J.
[DIPAK MISRA]
……………………………………………………J.
[V. GOPALA GOWDA]
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CRL.A. NO.592 OF 2010
New Delhi,
August 1, 2014
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