Lal Vs. State of Rajasthan  Insc 577 (31 October 2001)
Lahoti & Ashok Bhan R.C. Lahoti, J.
young child of 11 years, daughter of PW6, the father and PW7, the mother,
resident of a village within the limits of P.S. Shambhupura, Distt. Chittorgarh
had gone to fetch fodder from the filed of theirs at about 4 p.m. on 2.9.1992. She did not return back to home until 7 p.m.
whereupon an extensive search was launched by the parents, associated with the
villagers, who made inquiries not only in the village but also in nearby
villages but without any result. Mohan Lal and Chhagan Lal, PW16 and PW23 found
the dead body of the missing girl in the field of Udai Lal at about 7 a.m. on 3.9.1992. Udai Lals field is situated near the field of
PW6. They informed the villagers whereupon they assembled in the field of Udai Lal.
The dead body was in a bad shape. The neck was broken. There were marks of
injury on the neck which appeared to have been twisted.
was oozing out from neck and private parts of the body. Her both legs were
chopped off from near the ankles and were lying separated near the body. The kuralias
(silver ornament worn by girls in the villages) which the deceased used to
wear, one in each leg, were missing. The dead body and the chopped off legs
were picked up from the field and brought to home. Bhanwar Lal, PW5, was sent
to police station to lodge an F.I.R. of the incident. The investigation
commenced. Ghaghara (a garment worn by girls on the
lower part of the body) which the deceased was wearing, was found to be stained
with blood oozing out from vagina and was seized. Post mortem was conducted.
According to the facts found and the opinion based thereon, the girl was raped
and then killed by throttling. The neck of the deceased was pressed with thumb
and fingers. Thumb and finger marks could be visibly seen on the neck. The
death was caused by asphyxia. The legs were separated from the body after her
death by chopping off with a sharp edged weapon.
accused was arrested shortly after midnight of 3rd and 4th
September, 1992. The
investigation pointed out to his involvement in the crime. He was challaned and
put up for trial. The trial Court held the accused guilty of the offences
punishable under Sections 376(2)(f), 302 and 404, IPC. The accused was
sentenced to 10 years rigorous imprisonment and fine of Rs.100/-, in default to
undergo additional R.I. for 3 months under Section 376(2)(f), to life
imprisonment and fine of Rs.100/-, in default to undergo additional R.I. for 3
months under Section 302 and to 2 years R.I. and fine of Rs.100/-, in default
to undergo additional 3 months R.I. under Section 404, IPC. The Division Bench
of the High Court has maintained the conviction recorded and sentences passed
by the trial Court dismissing the appeal preferred by the accused. This appeal
has been preferred by special leave.
perusal of the judgment of the trial Court and of the High Court shows the
following pieces of incriminating circumstantial evidence having been found
proved so as to hold the accused guilty of the offences charged:-
Recovery, on the information given by the accused and on his pointing out and
producing, of kuralias belonging to the deceased and which she was wearing on
the date of the occurrence;
of axe, stained with human blood, on information given by the accused;
of human blood and semen stains on the chaddi (longish underwear) of the
of marks of injury (two abrasions) on his person; and
of blood stains on dhoti, baniyan and bush-shirt of accused.
accused was arrested at 2
a.m., i.e. in the wee
hours of 4.9.1992. Soon on his arrest he gave information that an axe and two
silver kuralias were kept in the south-east corner of the field of victims
father and he could point out the places. Pursuant to the information so given,
the accused led the police, accompanied by Panch witnesses, to the field of
father of the deceased girl in the early hours of the same day. The accused
took out a polythene bag, containing two kuralias, which was lying hidden in
the groundnut crop standing in the field. From another place, at a little
distance from the place wherefrom the kuralias were recovered, the accused took
out and produced an axe which was lying hidden below some grass and groundnut
crop. The axe was smudged with mud. Some shreds of flesh and fat, pieces of
bone and blood were also found sticking on the axe. All these articles
recovered were seized, packed at the place of the seizure, brought to the
police station and then sealed in the presence of the witnesses. The accused
also pointed out the place of the occurrence whereat a dantli (sickle used for
cutting grass) was found lying.
accused also gave information about his clothes kept in his residential house concealed
in a kothi(an earthen pot used for storing foodgrains) and then led the police
to his house. From the kothi he took out a few clothes bundled up in a piece of
cloth. On opening the bundle came out a dhoti, a bush-shirt, a chaddi (a
longish underwear, tailor made, from striped cloth, and not necessarily worn as
an underwear only) and a baniyan. These clothes had mud-stains on them. All the
four clothes were found to have stains on them which, in the opinion of the
investigating officer and the Panch witnesses, were blood stains. The chaddi
had a few white stains which appeared to be of human semen. All the clothes
seized kuralias were promptly put up for test identification parade conducted
by Prayagchand Verma, PW10, Addl. Chief Judicial Magistrate. They were
satisfactorily identified by the parents of the deceased as the kuralias which
the deceased girl used to wear usually and were also worn by her on the date of
the seized articles were sent to Forensic Science Laboratory Rajasthan, Jaipur.
The blood smeared soil seized from the place of the incident, the ghaghra
seized from the body of the deceased, kulhari recovered on pointing out by the
accused and the four pieces of clothes, namely dhoti, chaddi, baniyan and
bush-shirt seized on being produced by the accused from his house, were all
found to be stained with human blood although grouping could not be carried out
because of the blood having disintegrated. The Forensic Science Laboratory also
detected human semen on ghaghra seized from the body of the victim and the chaddi
produced by the accused.
as the several recoveries are concerned, the statement of investigating officer
is corroborated by the testimony of Panch witnesses who are respectable
residents of the same village in which the families of the victim and the
accused also reside. There is no reason to disbelieve the evidence of recovery
and seizure. The Panch witnesses have deposed that although kuralias, axe and dantli
having been seized from the respective places whereat they were found, were
cautiously packed and fully covered with the help of paper, cloth and thread at
the place of the seizure, the seals thereon were affixed at the police station.
It was rainy season. It had also rained on that night.
fields were wet and had water clogging at places. The recovery and seizure had
taken place in the wee hours and the only means of light available was a torch
carried by the police. In such situation, merely because the articles were not
sealed at the places of seizure but were sealed at the police station, the
recovery and seizure do not become doubtful. There is no suggestion that any of
the seized items were so tampered with as to implant thereon any piece of
incriminating evidence which was not otherwise available on the seized
recovered at the instance of the accused and on his pointing out were placed,
before recovery, in such a way that they could not have been visible to anyone
else unless pointed out and produced by the accused and therefore exclusive
knowledge of concealment of kuralias should be attributed to the accused. So is
the case with the axe. Kuralias were satisfactorily identified by the parents
of the victim girl at the test identification parade and also in the Court. The
father and the mother both stated that the kuralias were those which the
deceased used to wear and was wearing on the date of occurrence also. There is
no reason to doubt the testimony of the two parents who in the ordinary course
of things must have seen their daughter wearing the kuralias for several days
and therefore they are the best persons who could have identified those
articles. There is nothing in the cross examination of the two witnesses to
doubt veracity of their identification of kuralias.
axe was found to be stained with human blood. The four pieces of clothes
recovered from the house of the accused on his pointing out are accompanied by
such unusual circumstances which are also incriminating. The four items of
clothes were bundled together, wrapped in another piece of cloth and then kept
in a kothi (an earthen pot used for storing foodgrains in house) which is not
the ordinary and usual way of keeping usable clothes. Ratan Lal PW8, resident
of the same village and who knew the accused too well, stated that the clothes
were of the accused as he had seen the accused often wearing those clothes. The
clothes, at the time of seizure, were found to be stained with mud. They were
also found to be stained with human blood. The chaddi was stained with human
to Dal Chand PW18, the accused was a bachelor. On 5.9.1992, the accused was
sent up for medico-legal examination. He was examined by Dr. Subhas Jain, PW9
at 1.45 p.m. on 5.9.1992.
were two abrasions situated on his left shoulder and back of left elbow, each
of the dimension of 1 x 1/10 and could have been caused by any blunt object.
The two abrasions, looking to their situation and nature, could have been
caused by coming in contact with the rough surface of the earth or by
scratching. The accused was found to be potent and capable of performing sexual
intercourse though there was no external injury on or around his private parts.
late afternoon of the day preceding the day on which dead-body of the victim
girl was found, a few villagers about 4 in number including Mangilal, PW2 and Kani
Ram, PW24 happened to be together in the field of Mahender Singh which was
under cultivation of Mangilal, PW2 who had sown Soyabin crop therein.
the accused came. They had puff of bidi (country-cigarette made of Tendu
leaves) for a few minutes whereafter these villagers had left leaving the
accused-appellant behind there itself. Mangilal, PW2 had seen a young girl of
the height of about 3 feet being given a dantli (sickle) by the accused. The
girl had moved towards the field of her father. Mangilal saw the accused also
going in that direction.
the girl could not be identified by Mangilal because of distance in between. A
sickle was found lying near the place which was identified to be the place of
the incident where the victim girl was raped. The field of the father of the
victim girl, the field of Dalchand, PW18 whose land was taken by the father of
the accused for cultivation on sharing basis and the field of Mahender Singh
under cultivation of Mangilal, PW2 are situated almost adjoining each other as
per the site plan.
114 of the Evidence Act provides that the Court may presume the existence of
any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business,
in their relation to facts of the particular case. Illustration (a) provides
that a man who is in possession of stolen goods soon after the theft may be presumed
by the Court to be either the thief or one who has received the goods knowing
them to be stolen, unless he can account for his possession.
presumption so raised is one of fact rather than of law. In the facts and
circumstances of a given case relying on the strength of the presumption the
Court may dispense with direct proof of certain such facts as can be safely
presumed to be necessarily existing by applying the logic and wisdom underlying
Section 114. Where offences, more than one, have taken place as part of one
transaction, recent and unexplained possession of property belonging to
deceased may enable a presumption being raised against the accused that he is
guilty not only of the offence of theft or dacoity but also of other offences
forming part of that transaction.
(1997) 11 SCC 720, para 20, murder and robbery were proved to have been
integral parts of one and the same transaction and the presumption arising
under illustration (a) to Section 114 of the Evidence Act was applied for holding
the accused guilty of not only having committed robbery but also murder of the
deceased. The presumption was founded on recovery of stolen property belonging
to the deceased.
raising such presumption the time factor between the date of the offence and
recovery of stolen property from the possession of the accused would play a
significant role. Precaution has to be taken that the presumption may not be so
stretched as to permit suspicion taking the place of proof. No hard and fast
rule can be laid down.
review of several decisions of this Court, some of which we have cited
hereinabove, leads to the following statement of law.
of stolen property from the possession of accused enables a presumption as to
commission of offence other than theft or dacoity being drawn against the
accused so as to hold him a perpetrator of such other offences on the following
tests being satisfied:
The offence of criminal misappropriation, theft or dacoity relating to the
articles recovered from the possession of the accused and such other offences
can reasonably be held to have been committed as an integral part of the same
time-lag between the date of commission of the offence and the date of recovery
of articles from the accused is not so wide as to snap the link between
recovery and commission of the offence;
of some piece of incriminating evidence or circumstance, other than mere
recovery of the articles, connecting the accused with such other offence;
on the part of the Court to see that suspicion, howsoever strong, does not take
the place of proof.
such cases the explanation offered by the accused for his possession of the
stolen property assumes significance. Ordinarily the purpose of Section 313 of
Code of Criminal Procedure is to afford the accused an opportunity of offering
an explanation of incriminating circumstances appearing in prosecution evidence
against him. It is not necessary for the accused to speak and explain. However,
when the case rests on circumstantial evidence the failure of the accused to
offer any satisfactory explanation for his possession of the stolen property
though not an incriminating circumstance by itself would yet enable an
inference being raised against him because the fact being in the exclusive
knowledge of the accused it was for him to have offered an (supra). female
child of tender years was raped and murdered. Case against the accused rested
on circumstantial evidence. The accused when arrested was found to have
injuries on his person and blood and semen on under-clothes. There were several
other incriminating circumstances pointing to the guilt of accused and this
one, mentioned just before, termed by this Court in its judgment as most
formidable incriminating circumstance was put to the accused but he could not
give any explanation whatsoever and instead chose to deny the existence
thereof. This Court held that a false answer offered by the accused on his
attention being drawn to such circumstance renders the circumstance capable of
inculpating him. The Court went on to say that in a situation like this such a
false answer can also be counted as providing a missing link for completing the
chain of circumstantial evidence.
set out a little different line of logical thinking, for a judge of facts, by
stating that if there was other evidence to connect an accused with the crime
itself, however small, the finding of stolen property with him is a piece of
evidence which connects him further with the crime; there is then no question
of presumption; the evidence strengthens the other evidence already against
him. It is only when the accused cannot be connected with the crime except by
reason of possession of the fruits of crime that the presumption may be drawn.
emphasized the need of taking into consideration, in arriving at a decision,
the factors such as the nature of stolen articles, the nature of their
identification by the owner, the place and the circumstances of recovery, the
intervening period between the date of occurrence and the date of recovery and
the explanation of person from whom the recovery is made.
case at hand a little before the probable time of commission of the crime the
accused was seen near the place of occurrence. We should not be misunderstood
as holding the evidence of availability of the accused near the place of
occurrence and his passing on a dantli (sickle) to a young girl-child as
evidence of last seen together. We are only holding the presence of the accused
near the place of occurrence a little before the time thereof and his having
seen the likely victim of the crime thereat. The recovery of kuralias worn by
the deceased was made at the instance of the accused and there is a time-lag of
just 2 days between the offence and the recovery.
was recovered on an information given by the accused which is found to be
stained with human blood on examination by forensic science laboratory. The axe
had mud, pieces of bone and shreds of flesh and fat on it at the time of recovery,
as deposed to by the witnesses and perception of which facts needs no
expertise. Clothes of the accused were recovered on being produced by him from
his house. The four clothes were bundled up in a piece of cloth and kept hidden
in an earthen pot. The manner in which the clothes were kept is not one in
which the wearing apparels are ordinarily kept in the house. All these clothes
were found to be stained with mud and human blood. The chaddi (underwear) was
having stains of blood and semen __ both. The accused is a bachelor. He had two
injuries on his person which could have been caused at or about the time of
occurrence. The nature of the injuries was such that they could have been
caused either by the scratches of the victim resisting the act of the accused
or by the accused coming in contact with rough surface of the ground in the
course of commission of the crime. All these circumstances were put to the
accused. His only answer to all such circumstances is Galat Hai(i.e., it is
false or incorrect). The fact remains that the accused failed to offer any
explanation of such circumstances and therefore they can be used as inculpatory
circumstances against him and the necessary inferences flowing therefrom used
as links in chain of incriminating circumstantial evidence fastening guilt on
him. The medical evidence shows that the victim girl was raped, her neck was
twisted and she was throttled to kill her. On her death the two legs were
chopped off and the kuralias worn by her were removed. The accused was in
recent unexplained possession of kuralias. These several criminal acts __ rape,
killing and theft __ were committed in one transaction. The availability of the
abovesaid pieces of incriminating circumstantial evidence and their having
remained totally unexplained forge a complete chain of incriminating
circumstantial evidence so as to fasten guilt upon the accused beyond any
reasonable doubt. The silence of the accused supplies the missing link, if any,
as held by this Court in the case of of stolen property but also availability
of other strong circumstances which have fastened inescapable connectivity of
the accused with the offences charged.
the foregoing reasons we do not find any case having been made out for
interference with the judgment of the High Court, confirming the finding of
guilty recorded by the Trial Court for the several offences for which the
accused was charged and the sentences passed thereon. The appeal is dismissed.
would like to place on record our appreciation of very able assistance rendered
to Court by Shri Seeraj Bagga, Advocate, who appeared amicus curiae for the
. . .
. . . . . . . . . . . . . . . . . . . . . .J.
Lahoti ) . . . . . . . . . . . . . . . . . . . . . . . . .J.