JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 1.10.2004 passed by Addl. Sessions/Special Judge, J.P. Nagar in Session Trial No. 59 of 2001 whereby the appellant is convicted under Section 302 I.P.C. and sentenced to death and further convicted under Section 376 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine further imprisonment for six months. The appellant is further convicted under Section 201 I.P.C. and sentenced to undergo R.I. for 7 years.
2. Criminal reference No. 18 is for the confirmation of death sentence.
3. The brief facts of the case mentioned in the report lodged by Sukhiram are that on 10.3.2001 his daughter, Neeraj, aged about 10 years alongwith her younger sister Shanti was preparing Khichri. At about 7 p.m. Neeraj asked her sister Shanti to accompany her for urination but she refused to go alongwith her. Neeraj went alone but till 10 p.m. she did not return. He asked his daughter Shanti about Neeraj and she told him that she had gone for urination but she did not return and Vinod son of Badloo Singh Jatav had followed her. He started searching Neeraj and her dead body was recovered in the field of Harbansha. There were injuries on her body and on private parts also and she was not wearing her underwear. One Hawai Chhappal was lying about 20 - 25 steps away from the dead body. The report was registered at the police station Nauganwa Sadat on 11.3.2001 at about 3.05 a.m.
4. After the registration of the report R.K. Saini S.I. started investigation. He recorded the statement of the informant and witnesses and inspected the place of occurrence and prepared the inquest memo, which is Ext. Ka-4. The site plan is Ex. Ka- 3. He also prepared the recovery memo of Shawl, underwear and the leaves of sugar cane which is Ext. ka-5. He also collected the plain and blood stained earth and prepared its recovery memo (Ext. Ka-6). On 13.3.2001 he arrested accused Vinod and he made a confession of his guilt. On his pointing out an underwear was recovered and he prepared recovery memo and the site plan of the place of recovery of underwear (Exts. Ka. 7 and 8). After conclusion of the investigation he submitted the charge sheet against the accused.
5. After the submission of the charge sheet the case was committed to the court of Sessions and charges under Section 302, 376 and 201 I.P.C. were framed against the appellant.
6. The prosecution in order to prove its case examined five witnesses. P.W. 1 Sukhi Ram is the informant of the case, P.W. 2, Shanti, sister of the deceased, P.W. 3, Yogendra Singh, was examined to prove the extra judicial confession and he is also witness of the inquest memo. P.W. 4 Dr. A.K. Gupta conducted the post mortem examination, P.W. 5 S.I., R.K. Saini, is the Investigating Officer of the case.
7. The case of the defence is of denial and false implication. The Sessions judge after considering the evidence of the prosecution convicted and sentenced the appellant as aforesaid. Hence this appeal and reference.
8. We have heard the learned counsel of the appellant and A.G.A. for the state and perused the entire record.
9. The counsel for the appellant challenged the findings of the trial court on the ground that there is no reliable circumstance to connect the appellant with the crime and chain of the circumstances is not complete. The incriminating circumstances were not put to the accused under Section 313 Cr.P.C. and no opportunity was given to explain them, therefore, they can not be considered against the appellant.
10. The evidences of prosecution witnesses, which have been adduced during the trial, are being examined in the light of the submissions of the counsel for the appellant.
11. P.W. 1 Sukhiram deposed that about two years back at about 7 p.m. his daughter Shanti and Neeraj were preparing Khichri on a stove. Neeraj asked Shanti to accompany her for urination but she refused. Neeraj went alone and thereafter did not return home. Vinod had followed her. He waited up till 10 p.m., thereafter, he alongwith other villagers started searching for Neeraj. In the field of Harbansha the dead body of Neeraj was found. There were injuries on the body and on the private parts. Vinod had committed murder by strangulation and also committed rape. The girl was also not wearing her underwear. It is further stated that the rape was committed in the field of Virey and the dead body was thrown in the field of Harbansha. One Hawai Chhappal was also lying about 20 - 25 steps away from the dead body. He had gone to the house of Vinod but he was not present. He lodged the report at the police station scribed by Ram Kumar, which is Ext. Ka-1.
12. P.W. 2 Km. Shanti stated that about quarter to two years back at about 7 p.m. she alongwith her sister Neeraj was preparing Khichri. Neeraj asked her to accompany her for urination but she refused. She had gone alone for urination and Vinod had also followed her. She had seen Vinod following Neeraj. At that time her mother and father were not present in the house. Her mother returned home and thereafter her father came. She informed them that Neeraj had gone for urination and Vinod had followed her. Vinod committed murder after committing rape and the dead body was thrown in the field of Harbansha.
13. P.W. 3 is Yogendra Singh Pradhan of the village. He stated that the occurrence is of 10.3.2001. In his village Neeraj, daughter of Sukhilal was murdered. The inquest memo of the dead body of Km. Neeraj was prepared in his presence and he had also signed the same.
14. He heard that on the said date Vinod followed Neeraj and thereafter dead body of Neeraj was recovered in the field of Harbansha. He further deposed that on 12.3.2001 Vinod came to his shop and confessed that he had committed rape with Neeraj and thereafter strangulated her and then thrown the dead body in the field of Harbansha. He had also requested him to save him from the police. In the cross examination he did not support the prosecution case. He stated that his statement was recorded without asking him and he had signed it without reading. He had also deposed that accused was arrested in the night of tenth. He was not declared hostile by the prosecution.
15. P.W. 4 Dr. A. K. Gupta conducted the post mortem examination on the dead body of Neeraj on 11.3.2001 at 3.20 p.m. and noted the following ante mortem injuries:
1. Multiple abraded contusion in an area 7 cm. x 4 cm. in the right side face 4 cm. below the right eye.
2. Multiple abrasion contusion in an area of 8 cm. x 4.5 cm. in left side face 3 cm. below left eye.
3. Abrasion in an area 2 cm. x 2 cm. in upper lip.
4. Abraded contusion in an area 5 cm. x 4 cm. in right side neck 4 cm. below right anterior mandible.
5. Abrasion contusion in an area 4 cm. x 3 cm. in the left side neck 4.5 cm. left and right mandible.
In the opinion of the doctor, cause of death of the was due to Asphyxia as a result of ante mortem injuries (strangulation).
16. P.W. 5 R.K. Saini is the investigating officer of the case. He had submitted the charge sheet against the appellant.
17. It is a case of circumstantial evidence. It has been laid down by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
18. In the case of Padala Veera Reddy v. State of Andhra Pradesh 1991 SCC (Crl) 407 the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
20. The first circumstance relied upon by the trial court against the appellant is that he was seen following the deceased Neeraj and thereafter her dead body was recovered. P.W. 4 Dr. A.K. Gupta had found ante mortem injuries and had also confirmed that rape was committed with the deceased and blood was oozing from her private part. In the first information report, the informant Sukhi Ram, P.W. 1, had stated that P.W. 2, Shanti, had informed him that the appellant Vinod had followed Neeraj while she was going for urination. He had lodged the report on the basis of the information given by P.W. 2, Shanti. In support of this circumstance, the only statement is of P.W. 2, Shanti. She stated that Neeraj had gone alone for urination and she had seen Vinod following her. She further stated that Vinod after committing rape and murder thrown the dead body in the field of Harvansh. We have carefully examined the evidence on record in support of this circumstance and in our opinion the evidence on record is not sufficient to hold appellant guilty only on the basis of this circumstance alone. There is no other evidence to corroborate the testimony of P.W.2 Shanti. In her evidence she had stated that appellant after committing rape, appellant had thrown the dead body in the field of Harbansha. This part of the testimony is false .She is not an eye witness of the occurrence. She had informed his father that she had seen Vinod following Neeraj. Even if we accept that she had seen appellant following Neeraj it can raise only some suspicion. It is a well settled principle of law that suspicion howsoever strong cannot take the place of proof. It is also important to mention that during the examination of the accused under Section 313 Cr.P.C. no opportunity was given to him to explain this circumstance. Examination of the accused under Section 313 of the Code ,as held by the apex court in catena of decisions, is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the court in appreciating the entire evidence adduced in the court during trial. Therefore, in our opinion the Sessions Judge wrongly relied upon this circumstance to hold him guilty.
21. The other circumstance relied upon by the prosecution is of extra-judicial confession of the appellant before P.W.3 Yogendra Singh Pradhan. The testimony of this witness does not support the prosecution case in any manner. According to his statement appellant had confessed on 12.3.2001. He had further deposed that appellant was taken to the police station same night. He had also denied to have given any statement to the investigating officer. If appellant was apprehended same night then their does not arise any reason for making a confession. The investigating officer had not admitted to have arrested the appellant the same night. He had stated that he arrested the accused on 13.3.01. His testimony shows that he is not a truthful witness. He had even denied to have met the investigating officer after the preparation of the inquest report. Thus the testimony is of no help to the prosecution and the extra judicial confession can not be relied upon as an incriminating circumstance against the appellant. We agree with the submission of the counsel for the appellant that the sessions judge also did not specifically rely upon this circumstance and therefore, did not put to the appellant under Section 313 Cr.P.C. to explain this circumstance.
22. The last circumstance of the prosecution evidence is of recovery of underwear on the pointing out of the appellant is of hardly any assistance to the prosecution. None of the witnesses who were produced by the prosecution had deposed that the underwear is the same which was worn by the deceased at the alleged time of occurrence. The recovery is also very doubtful because according to the prosecution case the said recovery was made on 13.3.01 whereas according to P.W.3 appellant was taken to the police station same night i.e 10.3.01. The testimony of P.W.5 shows that the accused was arrested on 13.3.01 and he had confessed his crime and on his pointing out under wear was recovered. The statement of the accused is not mentioned in his testimony and it is also not admissible under Section 27 of the Evidence Act nor any question was put to accused under Section 313 Cr.P.C. regarding recovery of the underwear.
23. Thus, we find that none of the circumstances relied upon by the prosecution have been established in the case beyond a reasonable doubt and the chain of the circumstantial evidence is so incomplete that it cannot justify the conviction of the appellant at all. The court below was clearly in error in accepting the circumstantial evidence and convicting the appellant on the basis of such evidence. 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 and to acquit the appellant.
24. We accordingly allow this appeal and set aside the conviction and sentence of the appellant and acquit him of all the charges. The appellant is in jail. He shall be released forthwith unless required in any other case.
25. Criminal reference is rejected.