DHIRAJ BANKE vs STATE OF MADHYA PRADESH

1 The appellant is challenging his conviction u/s. 302 and 376 IPC handed down by the First Additional Sessions Judge Chhindwara in Session Trial No.197/2000. By the impugned judgment, learned trial Judge found appellant guilty of both offences and sentenced him on each count with RI for life and fine of Rs. 2000/ with default stipulations.

The prosecution case, in short, is as under. The appellant and witnesses including Sarooj (since deceased) are residents of Village Patharkati P.S. and Tehsil Amarwada in District Chhindwara. Village may be described as one horse village where people know each other.

On the night of April 12, 2000, Sarooj a young girl aged about 13 years along with her

father Ramdas (PW-1) had gone to the residence of neighbour Poonu to celebrate Ram Navmi. On account of late night Saroj slept in the house of Poonu. Around mid-night Ramdas woke her up and asked to go and sleep in their house so Sarooj left Poonu''s house whereas father stayed back and left the house of Poonu around 3 am in the night. In the morning at about dawn, dead body of Sarooj was found near the village temple. Ramdas(PW-1) lodged the MARG intimation Ex.P.1 in PS Amarwara without expressing suspicion against any one including the appellant. FIR (Ex.P.13) was recorded and investigation started. After investigation, the charge-sheet was filed and appellant was committed to face trial. As stated above, the trial Judge considering the prosecution evidence found appellant guilty of offences punishable u/s. 302 and 376 of IPC and sentenced him as aforesaid. Hence, this appeal.

There is no direct evidence to connect the appellant with the crime alleged to have been committed by him. The prosecution case is based on circumstantial evidence.

It is well settled that when dealing with the serious question of guilt of person charged with crime, there must be clear and unequivocal proof of the corpus delict and the hypothesis of delinquency should be consistent with all the facts proved. It is also well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a complete chain so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In a case of circumstantial evidence the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence; and lastly the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The law relating to circumstantial evidence no longer remains res integra and the circumstances proved should lead to no other inference except that of the guilt of the accused, so that, the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence it must satisfy that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused.

It is equally well settled that where the entire prosecution case hinges on circumstantial evidence, the Court should adopt a cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence points irresistibly to the guilt of the accused, it would not be sound and safe to base the conviction of an accused person. Keeping this settled position in mind, we have examined the prosecution evidence adduced in the case in hand.

At this stage, it is not in dispute that the deceased died a homicidal death. We may, therefore, make a passing reference to evidence of Dr. Anil Sharma (PW-15) who performed postmortem of deceased. The autopsy report is Exhibit P. 14. Perusal of the post-mortem report

reveals that deceased had sustained injuries on the vital part of the body i.e. on the neck and she died a homicidal death due to shock and excessive haemorrhage as a result of injury over the neck. Dr.Sharma also found injuries which are supportive of struggle to perform sexual intercourse. Upon query, Dr. Sharma had opined that the injuries found on the neck of the deceased could be caused by ''stone'' and in this respect, his report is Exhibit P/22. The question, therefore, is whether the prosecution has brought home the offences alleged against appellant?

On a careful examination of evidence on record, we find following links which form complete chain. That on 12th night most of villagers, amongst others, Sarooj, appellant, Ramdas,(PW-1) Sant Kumar (PW-4) had gathered at the place of Poonu to attend "Jware" and accompanied "Jus" on the occasion of Ram Navmi. Function conitued late in night upto 3 am or so in the night. Sarooj fell asleep in the house of Poonu. Ramdas woke her up and told her to go and sleep in their house. She left the place at about 1 am and went home to sleep in front room of the house and the front door was just closed and not bolted from inside. This fact is established from the evidence of Jamvat(PW-7), aunt of Sarooj. Ramdas(PW-1) and Sant Kumar(PW-4) left the house of Poonu around 3am and went to their respective homes. By that time, the appellant had already left of Poonu''s place an hour earlier. The presence of appellant near the vicinity of temple was noticed by Sant Kumar(PW-4). Another witness Narayan Singh(PW-17) woke up and saw the appellant around 2:30 am and asked him wherefrom he was coming, appellant replied from no where and his voice was nervous and shaky. The last link in the chain is the Medical examination reports of the appellant vide Ex.P.21. Dr Sharma (PW.15) proved the medical examination report Ex.P.21. He found appellant capable of performing

sexual intercourse. He also noticed various injuries on person of accused and those injuries were nearly 5 days'' old. These injuries assume great signification when the copulation takes place on uneven surface strewn with stones. No doubt, entire burden lies on the prosecution to prove the case but at the same time the appellant is expected to offer some reasonable explanation of the fact which was within his knowledge during his examination under Section 313 of the Code of Criminal Procedure instead of giving stock answer "I do not know".

In the case in hand, we are of the considered opinion that prosecution has fully proved the circumstances from which the cumulative conclusion could be drawn about the guilt of the appellant. The circumstances are conclusive in nature and all the circumstances taken together are consistent only with the hypothesis of guilt and inconsistent with the innocence of the appellant. There is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else and lastly the circumstances are to a great certainty exclude the possibility of guilt of any person other than the appellant.

In view of the foregoing discussion, we find no merit and substance in the appeal. Appeal fails and is dismissed.

Ordered accordingly.