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SUPREME COURT OF INDIA
DIVISION BENCH

RAM SUNDER SEN AND OTHERS — Appellant

Vs.

NARENDER — Respondent
( Before : Pinaki Chandra Ghose and R.K. Agrawal, JJ. )
Criminal Appeal Nos. 1793-1794 and 1795-1796 of 2011
Decided on : 15-10-2015

Murder - Rape - Accused, charges were framed against accused for offence
punishable Under Sections 302, 376(2)(f) and 201 of the Indian Penal Code,
1873 - Prosecution has failed at the foremost to link the accused with the
incident. The prosecution has the responsibility to present a chain of events.
The accused's culpability could have been established if the blood samples
were tested and matched, the recovery of underwear is not proven to be that of
the deceased. Otherwise, the recovery was unnatural and did not adduce
confidence. One prosecution witness who is an independent witness has stated
that the accused had gone to another village on the date of incident. There
were material discrepancies in the statements of the prosecution witnesses. The
testimonies of the interested witnesses, namely, PW3, PW4, PW5 and PW28
clearly show that they materially improvised from their earlier depositions.
The accused also examined two defence witnesses who stated that the accused
was attending function in some other village on the fateful night. The High
Court went into each and every material aspect of the case, examined at length
the deposition of the witnesses and rightly held that the links which are
collected by the prosecution have not at all been proved by any cogent evidence

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and, therefore, it is difficult to hold that it was the accused who committed
rape upon the deceased and thereafter killed her.
Counsel for Appearing Parties
Gagan Gupta, Sunny Choudhary, Mishra Saurabh, Parivesh Singh, M.S. Saran Kumar and
Naresh Kumar, Advocates, for the Appellant
Final Result : Dismissed

JUDGMENT

Pinaki Chandra Ghose, J—These appeals, by special leave, are directed against the
judgment and order dated 23.07.2008, passed by the High Court of Madhya Pradesh at
Jabalpur in Criminal Appeal No. 11 of 2008 along with Criminal Reference No. 4 of 2007,
whereby the High Court allowed the criminal appeal filed by the Respondent herein and
acquitted him and disposed of the Criminal Reference No. 4 of 2007 filed by the State of
Madhya Pradesh.
2. The case of the prosecution, stated briefly, is that on 19.05.2004 at 8.30 A.M., the
complainant Ram Sunder Sen lodged a report at Police Chowki Kotar stating that there
was a function in his house on 18.05.2004 in which his relatives and family members had
gathered. His daughter Anita, aged about 12 years, after eating meal, had gone to sleep at
7.00 P.M. in front of the main gate of his house as there was no electricity in the house
then. After the function was over, at about 11.00 P.M., he and his family members also
slept there. Next morning i.e. on 19.05.2004 at 6.00 A.M., the wife of Sarpanch
Vansbahadur informed that the dead body of Anita was lying in Bari near the house of the
Sarpanch. She was not wearing underwear and skirt. There were abrasions on her
forehead, nose and face. Abrasions were also found on the neck as well as nearby navel
region. Blood was oozing out of private part, cut on the face and ankles of both the legs.
FIR against an unknown person was lodged, the dead body was sent for post-mortem and
investigation was thrown open. The Investigating Officer recorded the statements of the
witnesses. On the basis of the statement of the witnesses, accused Narendra @ Bode Singh
Patel was arrested who admitted his guilt and at his instance, blood-stained underwears of
the deceased as also the accused were recovered from a pitcher kept behind his house.
3. After investigation was complete, Police filed challan before the Court against accused
Narendra and the case was committed to the Sessions Court for trial. After considering the
material on record and hearing the counsel for the accused, charges were framed against
accused Narendra for offence punishable Under Sections 302, 376(2)(f) and 201 of the
Indian Penal Code, 1873 ("Indian Penal Code" for short). The charges were read over and
explained to the accused to which he pleaded not guilty and claimed for trial.
4. The Trial Court by its judgment and order dated 18.12.2007, convicted the Respondent
accused and awarded capital punishment to him for offence punishable Under Section 302
Indian Penal Code. The Trial Court further sentenced him to rigorous imprisonment for life
for offence punishable Under Section 376(2)(f), and rigorous imprisonment for seven
years and a fine of Rs. 100, with default clause, for the offence punishable Under Section
201 Indian Penal Code. Thereafter, the matter was referred to the High Court of Madhya
Pradesh for confirmation of death sentence vide Criminal Reference No. 4 of 2007. The
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accused also filed an appeal before the High Court, being Criminal Appeal No. 11 of 2008.
The High Court by the impugned judgment allowed the appeal filed by the accused on the
ground that the prosecution failed to prove the chain of circumstances sufficient enough to
connect the accused with the alleged offence and, consequently, the Respondent accused
was set at liberty.
5. Aggrieved by the judgment of acquittal passed by the High Court of Madhya Pradesh,
the complainant, who is the father of the deceased, has approached this Court by filing
Criminal Appeal Nos. 1793-1794 of 2011. The State of Madhya Pradesh has also
challenged before us the judgment of acquittal passed by the High Court vide Criminal
Appeal Nos. 1795-1796 of 2011. Learned Counsel for the complainant-Appellant has inter
alia submitted that the judgment of the Trial Court is well reasoned and well considered.
Both the counsel for the complainant-Appellant and counsel for the State have assailed the
reasoning given by the High Court in arriving at a wrong conclusion i.e. the innocence of
the accused.
6. The Trial Court convicted the accused Respondent on the basis of the prosecution story
relying upon the circumstantial evidence. The law is well settled in deciding a case based
upon circumstantial evidences. The prosecution tried to establish the following facts before
the Trial Court:
(i) Motive: in order to satisfy the lust,
(ii) The recovery of underwear of the deceased as also the underwear of the accused was
made at the instance of the accused in his own house,
(iii) Human blood was found on the underwear of the accused,
(iv) The accused came to the house of the deceased at 11.00 pm on 18.05.2004 under the
pretext of a Bidi but was turned back by the mother of the deceased.
(v) Previous acts of the accused to make the deceased sit in his lap and to kiss her for
which he was rebuked by the deceased's father reveals his ill-intentions.
(vi) Accused made an attempt to rape the daughter of one Kallu Prajapati of Village
Golhata prior to the incident,
(vii) In the morning of 19.05.2004 the accused was not found in the village,
(viii) Accused was seen around the place of incident at night within close proximate time
when the incident occurred,
(ix) Accused failed to give reasonable explanation about the injuries suffered by him.
The Trial Court held that the above facts proved the prosecution case beyond reasonable
doubt and hence the accused was convicted for the offence charged. However, the High
Court pointed out serious lacunae in the above-mentioned evidences and hence the
conviction order was set aside by the High Court giving benefit of doubt to the accused.
7. We shall now examine each and every contention in light of the arguments advanced
before us. It is settled law that motive is not a necessary element in deciding culpability
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but it is equally an important missing link which can be used to corroborate the evidence
where conviction is based on circumstantial evidence. In the present case, the motive of
the accused was stated to be 'to satisfy his lust'. For this purpose the prosecution argued
that although the accused was married and had children, but his wife was living at her
parent's house. The same fact was deposed by Lalli Bai, mother of the prosecutrix (PW4).
The Trial Court accepted the said argument. However, the High Court rightly refused to
rely only on the statement of PW4 to establish the said fact. Further, it is not adequately
established as to for how long the wife of the accused was not living with him. The burden
to prove this fact is on the prosecution and not on the accused. The prosecution also tried
to impute bad character upon the accused. The High Court rightly held that such evidences
are not relevant. Sections 53 and 54 of the Indian Evidence Act, 1872 were discussed at
length by the High Court and it was held that the accused neither tried to prove his
previous good character, nor the said fact was in question. An earlier instance of attempt to
rape by the accused, as deposed by the mother of the prosecutrix (PW4), Savitri, aunt of
the deceased (PW5) and Rajendra Kumar Sen, brother of the deceased (PW6), is not
established at any stage of the trial. These witnesses are not only interested witnesses but
they themselves stated that their evidence is hearsay. The prosecution neither produced any
complaint/FIR nor any record was shown that any such incident occurred. Thus, the
prosecution squarely failed to impute bad character upon the accused. Further, the motive
is also not firmly established against the accused.
8. The next aspect for consideration before us is the non-explanation by the accused of the
injuries sustained by him. As per the medical examination, the accused had certain
abrasions on his wrists and ankles and also some injuries on private part. PW24 - the
doctor who examined the accused, deposed that he examined one Narendra S/o Ram Babu.
But this doctor failed to identify the accused before the Court. The prosecution also failed
to produce any evidence in order to prove that the name of the father of the accused is Ram
Babu. The name of accused's father is Ram Bahore and it is nowhere shown that Ram
Bahore is alias of Ram Babu. With these discrepancies, the High Court refused to accept
that the accused was the same person who was examined by the doctor PW24. However,
even if it is presumed that there could have been error in writing down the name of the
father of the accused and due to long time, the doctor failed to identify the accused, yet the
medical evidences are not clinching enough. The accused is a young man, certain
abrasions can be regularly sustained during the day while working in and around.
Moreover, the accused having worked in his cousin's wedding might have received the
abrasions. Medical opinion for explanation to such abrasion is that such abrasion can occur
due to itching also. The other injuries on private part, in medical opinion, could be a result
of sexual intercourse with his wife. The accused is a married man having children and it is
not established that his wife was living away from him. Hence, non-explanation of the
above said injuries is not an incriminating circumstance so as to attribute any criminality
upon the accused.
9. The next incriminating fact is the recovery of the blood-stained underwear of the
deceased made at the instance of the accused, from the house of the accused. However,
upon careful examination, serious doubts are cast upon the incident of recovery. The
witnesses to this seizure memo are Lalit Kumar Sen (PW9) and Dayanand (PW22). As per
the deposition of PW9, many doubts are created. He deposed that red colour underwear as
well as an underwear of accused were seized. However, he did not state as to whom did the
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red colour underwear belong. He also did not mention the place from where it was
recovered nor did he mention the manner in which the articles were seized. PW22 further
made certain doubtful revelations stating that at the time of recovery, only he, accused and
the police were present. However, he only confirms the recovery of a red colour
underwear, but the place and surrounding of the place of recovery were not deposed by
PW22. The deposition of the above two witnesses raises various doubts about recovery of
material facts. Therefore, the High Court correctly raised doubt that it is highly unnatural
that the accused will keep the underwear in a pitcher in his own house.
10. The prosecution failed to prove its case on one more aspect. Upon recovery of the
underwear of the accused and the deceased, although the same were sent for Serological
examination and it was proved that blood was found on the underwear of the accused, but
no blood was found on the undergarments of the deceased. During investigation, the blood
sample and soil samples were collected from the place of incident. However, it is shocking
to note that none of these samples were sent for FSL examination. The said examination
could have been very useful to establish the identity of the accused. There is thus a serious
lacunae in the investigating procedure that a necessary test was not conducted.
11. The underwear of deceased vide identification memo Ex. P/14 was put for test
identification. PW4 deposed that she identified the underwear as the same was torn from
the bottom. However, when this witness was put to cross-examination, she deposed that
none of the underwears which were put for identification, was torn from the bottom. PW4
also stated that the underwear was blood-stained. However, it is proved by serological
report that no blood was found on the underwear of the deceased. Upon perusal, numerous
contradictions appear from the statements made by PW4, and serious doubt is raised not
only on recovery of the undergarments, but also upon the identification test.
12. The next evidence is the presence of the accused in the village at and around the time
of the incident against which the accused has pleaded alibi. The prosecution placed on
record the testaments of Ram Sunder Sen, father of the deceased (PW3), stating that the
accused came to his house 3-4 times during the night of 18.05.2004. He also deposed that
on 18.05.2004 at 11.00 P.M. the accused came to his house and asked for bidi, but he was
turned back by his wife PW4. PW4 also made deposition to this effect. However, upon
cross-examination both these witnesses stated that this fact was told to the police officer
upon examination. But no such fact is present in their statements made to the police during
investigation. The High Court disbelieved the said fact as there was a deviation from the
earlier statement. Further, the High Court examined the statements of the defence
witnesses, who deposed that on the date of incident, the accused was present in another
village to attend the marriage function of his cousin. The defence witnesses specifically
deposed that the accused was present during and after the function on 18.05.2004 and the
accused stayed there at night. It was further deposed that the accused left for his home only
after breakfast. This also explains the absence of the accused in his village in the morning
of the incident. The High Court rightly relied upon the statement of an independent
witness, namely, Kalawati (PW1) who deposed that the accused was not in the village on
the fateful night as he had gone to the marriage ceremony in other village. The said factum
of marriage ceremony and function in other village has been admitted even by the family
members of the deceased.

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13. The prosecution also placed on record an incident alleged to have occurred a few days
prior to the fateful day, when the accused made the deceased sit on his lap and kissed her,
for which the accused was rebuked and beaten by the father of the deceased. However, in
their statement to the police, no such fact was deposed by PW3 or PW4 and it was only
before the Court that the above witnesses stated this fact. Even if the said fact is presumed
to be true, we concur with the reasoning of the High Court that mere snugging the
deceased once, in itself, is no ground to connect the accused with the alleged incident.
14. The prosecution also adduced the testimony of Sanjeev Kumar Sen (PW28), cousin of
the deceased, who alleged that in the night intervening between 18th and 19th May, 2004 at
about 4:30 A.M., he woke up to attend the call of nature when he saw the accused coming
towards his house from the Badi of the house of Vanshgopal Sarpanch. Very close to that
place, the deceased was found dead in the morning. However, upon careful examination, it
can be gathered that this witness did not state such an important fact to the police officer.
Although he alleged that the said fact was known to him yet the report was lodged against
an unknown person. Further, if the veracity of this statement is tested, it fails to adduce
confidence. PW28 himself stated that he saw the accused at 4:30 A.M., however, none of
the details as to the distance, surrounding, etc. were given. The source of light in which the
witness saw the accused is also not stated. Therefore, the High Court correctly rejected the
testimony of PW28.
15. The present case is, thus, based purely on circumstantial evidence. It is a settled law
that when prosecution relies on circumstantial evidence, the following tests to be clearly
established:
(i) The circumstances from which an inference of guilt is sought to be drawn, must be
cogent and firm;
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt
of the accused;
(iii) The circumstances taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probability the crime was committed
by the accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.
The prosecution, however, in the present case, has failed at the foremost to link the
accused with the incident. The prosecution has the responsibility to present a chain of
events. The accused's culpability could have been established if the blood samples were
tested and matched, the recovery of underwear is not proven to be that of the deceased.
Otherwise, the recovery was unnatural and did not adduce confidence. One prosecution
witness who is an independent witness has stated that the accused had gone to another
village on the date of incident. There were material discrepancies in the statements of the
prosecution witnesses. The testimonies of the interested witnesses, namely, PW3, PW4,
PW5 and PW28 clearly show that they materially improvised from their earlier
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depositions. The accused also examined two defence witnesses who stated that the accused
was attending function in some other village on the fateful night. The High Court went into
each and every material aspect of the case, examined at length the deposition of the
witnesses and rightly held that the links which are collected by the prosecution have not at
all been proved by any cogent evidence and, therefore, it is difficult to hold that it was the
accused who committed rape upon the deceased and thereafter killed her.
16. Thus, in the light of the above discussion, we do not find any ground to interfere with
the judgment passed by the High Court. The appeals are, accordingly, dismissed.

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