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TMI Blog1991 (4) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof. With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced. 5. The deceased Disco alias Sukumari, a girl aged 5 years was the daughter of P.Ws 1 and 6, the father and mother who were drummers by caste. They belong to village Badachatra, an interior part of Mayurbhanj District. They had three children and the deceased was the eldest. In the year 1988 during Kalipuja time the accused who was the resident of Tulsibani village about one kilometre away, came to the house of P.Ws 1 and 6. He named their newly born daughter. He took his meals in their house and went away saying that he would come with the new dresses for the newly born daughter. Next day i.e. on 9.11.88 he came to their house in the morning with new dresses. He told the parents that he would take the deceased with him to Bombay Chhak to get new dresses for the other two children. He took his lunch and went with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. (3)The hymen was torn and the floor of the vagina i.e., vaginal channel was lacerated. This injury corresponds to external injury No. 15. The Doctor opined that all the injuries were antemortem and homicidal in nature and cause of death was due to asphyxia and shock as a result of strangulation and also due to injuries to the vagina. He also opined that the injuries on the neck suggest that the deceased was strangulated by pressure of hands. So far injury to the vagina is concerned, he was of the opinion that the same could have been caused by forcible penetration of a male organ. The accused also was examined on 10.11.88 itself by another Doctor P.W. 8 for some abrasions on his genital. P.W. 8, however, categorically stated that on examining the accused he could not find any recent sign of sexual intercourse. The prosecution relied on some blood stains which were found on his dhoti but the accused explained away by saying that they were caused by the bleeding of his gums. The accused when examined under Section 313 pleaded not guilty. He, however, admitted that he went to the house of P.W. 1 but denied the rest of the case. 6. The trial court did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 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. Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to the jury in Reg v. Hodge (1838) 2 227 which is stated as under: The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd P.W.6 the mother deposed that on the day of occurrence the accused came to their house and took the deceased towards Bombay Chhak to purchase new clothes. The accused only admitted to the extent namely that he had been to their house and denied the rest of the prosecution case. However, we shall accept the evidence of P.Ws 1 and 6 to the effect that the accused took the deceased on that day to Bombay Chhak. But that by itself is not enough to conclude that the deceased was last seen in the company of the accused because even according to them on being enquired, the accused told them that he sent the girl back in a truck. Even otherwise the distance between the two villages in not much. P.W.2's evidence, however, is relied upon that the deceased was going in the company of accused. P.W.2 is also a native of the same village to which P.Ws 1 and 6 belong. He deposed that on a Wednesday he had been to village pond to take his bath at about 12 noon and while returning he saw the accused going towards east with a minor girl aged about 5 years but P.W.2 does not say that the deceased was in his company. He, however, proceeded to depose that he found P.W.I searching for some one and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amaged and scattered. I held inquest over the dead body of the deceased Disco in presence of witnesses under the inquest report already marked Ext.l. I noticed injuries on the vagina and other parts of the body of the deceased. After inquest I sent the dead body for P.M. examination through constables. According to this evidence the accused is alleged to have taken P.W.I 1 and others to the open paddy field where the dead body was lying. Is it only thereafter that the inquest report was drawn up. However, P.W.I 1 stated in his evidence that before going to the paddy field the F.I.R. Ex. P. 10 was drawn up by him. Surprisingly we find a mention about the discovery ; of the body in the F.I.R. itself. But the same is not found in the inquest. There is not even a reference to the accused in the Column No. 9 of the inquest report where the information of witness as to the cause of death has to be noticed. We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been atleast a mention in the inquest report as to how the body was discovered. Apart from that usually a panchnama is prepared for such a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding this crucial circumstance It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused. Having given our careful consideration we are of the firm opinion that the prosecution has not established this circumstance conclusively. On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence. We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report. Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt. However, when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established then the other circumstances are hardly sufficient to establish, the guilt of the accused. The courts below have also observed that the accused gave a false explanation. According to the prosecution case the accused is supposed to have stated to P.Ws 1 and 6 that he sent away the deceased in a truck. The courts below held that this explana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished. When such a main link goes, the chain gels snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short stop between moral certainty and the legal proof. At times it can be a case of 'may be true'. But there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions. The least that can be said in this case is that atleast there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him. 12. We are conscious that a grave and heinous crime has been committed but when there is no satisfactory proof of the guilt we have no other option but to give the benefit of doubt to the accused and we are constrained to do so in this case. Accordingly, the appeal is allowed. The conviction and sentence of the accused is set aside and he shall be set at liberty forthwith if not required in any other case. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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