Anoop Chitkara, J
1. The instinct of a girl, to be caring, cost life of a 14 years young female, who had gone to collect firewood, so that her middle-aged foster mother
gets warmth and respite from the biting cold of the winters of Manali in Himachal Pradesh. It was 4.00 p.m., on December 15, 2014, when realizing
her duty to help her mother, who had brought this girl from a Nepali family seven years before, went to the banks of the River Beas, to collect
fuelwood, sharing her household responsibility. The blanket of a meter of snow, fallen three- four days before, had covered every exposed surface.
Neither she nor her mother knew that predators are no more wild animals, but the perverts always looking for prey to satisfy their lust on finding a
vulnerable girl. When she did not return till 5.30 p.m., and it started getting dark, with days already closest to their shortest, her mother Banti Devi got
frightened and inquired in the neighborhood about her daughter. On that un-fateful day, the Sun, as usual, had set in Manali somewhere at 5.15 p.m.,
and the Moon did not show her face at all. Braving snow, the neighbors did a frantic search to locate her, but could not find her. It had already
become very dark, and there were no street lights on these difficult mountainous terrains. Her foster mother made phone calls to her married daughter
as well as her daughter-in-law and apprised them about missing of the victim.
2. The girl could not be traced and was out of her home in the blood-freezing winters of Manali. After the long cruel cold night, when the day broke,
her mother, Banti, along with one Sheetal went in search of the young girl towards River Beas. At one place, the snow had compressed, foot and
dragging marks were visible, blood was also lying on such compressed snow and the stones. At some distance, was lying a chopper, somewhat
submerged in snow, maybe because of shame, as the girl had faith on it to cut the wood and protect her. At some distance, closer to the River, the
pajama, one shoe, and muffler, which the victim was wearing at the time of going to collect fuelwood, lay scattered. On noticing the clothes of her
daughter, she returned to the habitat and informed her daughter Rajni and daughter-in-law Sunita who, by the time, had also reached her house. On
this Rajni made a phone call to Police Station about missing of the victim. After that, all the villagers made a frantic hunt to search the girl along with
the River. The water level of River Beas would have gone up because of the falling tears of the villagers, but all prayers and efforts failed to trace
either the girl or her body.
3. On receipt of the phone call, the police swung into action. The Investigating officer reached the village, recorded the statement of Banti Devi, the
foster mother of the missing girl, under Section 154 of CrPC. The police party reached the spot and lifted the chopper, pajama, string of pajama, dhatu
(headgear) with corners stained with blood, one blue color rexine shoe, one out of pair of tops (earring); sealed these in parcels and took in possession.
The police also lifted from the spot, the blood along with the blood-stained snow, stored it in a glass bottle, and sealed the same. The police also found
hair from the spot, sealed and preserved the same. A photographer took photographs of the place and made a video recording.
4. On finding a prima facie case of abduction, in order to commit murder, FIR No. 221 of 2014, dated 16.12.2014, was registered under Section 364 of
IPC in the file of Police Station Manali, District Kullu, H.P. The investigation led to the clues about the involvement of the appellant and arrested him
on the next day i.e., December 17, 2014, at about 8.30 p.m. Immediately after his arrest, he was taken for his medico-legal examination to Civil
Hospital at Manali, where Dr. Ashok Rana (PW-7), on physical examination of the accused, noticed a punch out on left interior portion of tongue with
irregular abrasion. The doctor also noticed abrasions on both the cheeks tapering downwards. On asking of the police, the doctor took samples of
blood and semen and also preserved the underwear worn by the victim. On the next day, the accused made a disclosure statement under Section 27
of the Indian Evidence Act (Ext. PW-4/A) and stated that he could point out the place on the bank of River Beas, where he had attempted to commit
rape upon the victim, and thereafter, he had thrown the victim in River Beas. After that, the accused led the police party to the bank of River Beas
and pointed out to the place where, on finding the girl alone cutting fuelwood, he attempted to commit rape on her and after that, threw her into the
River. From his house the Police recovered, his pants and jacket, which had bloodstains on it; one sweater and two T-shirts.
5. During the investigation, the police came to know that on December 16, 2014, at 10.30 a.m., the accused had visited a nearby clinic at Patli Kuhal.
The said clinic belonged to Dr. Ram Singh (PW-9), to whom the accused had shown his tongue. The doctor noticed an ulcer of the dimension of two
centimetres on the tongue of the accused. The accused had also revealed to the doctor that he had sustained this injury on his tongue due to fall as he
had slipped on the snow. However, the doctor did not find any other external injury on the person of the accused.
6. The police sent the evidence collected from the spot as well as the clothes of the accused to the Forensic Science Laboratory, Mandi, which vide
report Ext. PA found human blood of Group ‘AB’ on dathu of the victim, T-shirt, and upper tracksuit of the accused. The laboratory detected
blood of group ‘AB’ on the snow lifted from the spot. The blood group of the accused was also found to be ‘AB.’ During the
investigation, the police had converted the FIR by adding Section 302, 376 of IPC and Section 4 of the Prevention of Children from Sexual Offences
Act, 2012, after now called POCSO.
7. However, in the report under Section 173(2) of CrPC, the SHO sought prosecution for the commission of offences punishable under Section 302,
376 read with Section 511 of IPC and did not invoke the provisions of POCSO. Accordingly, the trial Court framed charges only under Sections 302,
376 read with Section 511 of IPC, to which the accused did not plead guilty and claimed trial.
8. After completion of the trial, in compliance with Section 313 Cr.P.C., the Trial Court put to the accused, the incriminating circumstances appeared
in evidence, and in answer to the circumstance of the accused visiting PW-9 Dr. Ram Singh on December 16, 2014, to get treatment of ulcer on his
tongue, the accused explained that there was no ulcer on his tongue; however, he stated to the doctor that he had a fall on December 15, 2014. The
accused did not lead any evidence in his defence.
9. Vide judgment dated August 23, 2017, passed in Sessions Trial No. 40 of 2015, the Sessions Judge held the accused guilty of both the charges and
sentenced him to undergo life imprisonment under Section 302 of IPC along with fine of Rs. 10,000/- and to suffer rigorous imprisonment for two
years along with a fine of Rs. 5,000/- for the offence punishable under Section 376 read with Section 511 of IPC. The period of detention already
undergone by the accused-convict was set off, given the provisions of Section 428 of CrPC.
10. Challenging the judgment of conviction the accused-convict has come up before this Court, by filing this appeal under Section 374 (2) of C.rP.C.
11. We have heard Mr. Ranjeet Singh Cheema & Mr. Ashwani Kumar Negi, learned Counsel for the appellant and Mr. Vinod Thakur, learned
Additional Advocate General, and Ms. Svaneel Jaswal, learned Deputy Advocate General, for the State. We have also waded through the entire
record.
ANALYSIS AND REASONING:
12. The case set up by the prosecution is based entirely upon the circumstantial evidence. After appreciation of the evidence, the following
circumstances are culled out:
(a) Banti Devi (PW-1) had three children, all of whom were married and living separately; in the year 2007, she had adopted a seven years old girl
from a family of immigrants of Nepal, and since then she (victim) was staying with her foster mother, in their rented premises situated at Alu Ground:
(i) On appreciation of the statement of PW-1 Banti Devi, which gets corroboration from her previous statement recorded under Section 154 of CrPC,
(Ext. PW-1/B), the prosecution proved that she was a tenant in the house of Smt. Yug Doll and was residing in Alu Ground for the last 30 years,
where she was running a Tea Stall. She had three children, out of whom, two were daughters, and one was son, and all three were married long back.
One of the daughters, named Rajni, was married in Nirmand area of Kullu District. During the year 2007, she had gone to meet her daughter, where,
from a Nepali family, she had adopted the victim. It is also proved that her husband used to live with her as well as with his son, who was residing at a
distance of 200 or 300 meters away from her house in Alu Ground. After winter vacations, her daughter Rajni had visited the home of her brother and
was staying in his house. This evidence is duly corroborated in material particulars by the testimony of (PW-2) Rajni. Hence, the circumstance is
proved.
(b) There is no evidence pointing out towards the involvement of either PW-1 Banti Devi or any of her family members in the crime:
(i) Investigating Officer did not find involvement of her foster mother or her family members, in the crime. PW-1 Banti Devi explicitly stated that
when her daughter did not return home for more than one and a half hour, then she inquired in her neighbourhood. After that, she made a phone call to
her daughter Rajni and daughter-in-law Sunita and apprised them of the fact of her gone missing. Her statement recorded under Section 154 of
Cr.P.C. mentions that the villagers had also gone to search the missing girl. It had come in the evidence that 2-3 days before December 15, 2014, the
entire area had experienced hefty snowfall due to which temperature must have significantly dropped and would have made terrain slippery. After the
day broke, she along with one person named Sheetal, went to search the missing girl, and while searching on the banks of River Beas, she noticed her
clothes on the banks of the River, along with blood on the snow. Immediately after that, she informed her daughter, daughter-in- law, and all the
villagers went to the spot. Her daughter also made a phone call to the police, upon which, the police reached the place at around 9.00 p.m.
(ii) All these facts point out towards a natural human behavior in such a situation. When she could not go for an extensive search at night, she went
searching for the victim in the morning. Indeed the area had experienced a heavy snowfall, which would make walking hazardous and risky. Needless
to say that the prosecution was under an obligation to examine at least Sheetal, who had searched with (PW-1 Banti Devi) and at least, one of the
neighbours, to lend further corroboration to this fact. But the failure of the Prosecution would not weaken the other evidence, which is already proved
on record. Undoubtedly, keeping in view the gravity of the offence, the prosecution did not do its job well.
(iii) Eyebrows are raised on this lackluster attitude because the victim was a poor girl belonging to a family of Nepali immigrants. Be that as it may.
There is no evidence pointing towards the involvement of either PW-1 Banti Devi or any of her family members in the crime.
(c) On December 15, 2014, at around 4.00 p.m., the victim had gone all alone towards River Beas to fetch fuel wood; the victim and her foster mother
(PW-1) Banti Devi were staying mostly alone:
(i) It has come in the cross-examination of PW-1 Banti that her husband was living with her as well as with his son. It has further come in her
testimony that on December 15, 2014, at about 4.00 p.m., the victim had gone to fetch fuelwood. It finds corroboration from the earliest version
recorded under Section 154 CrPC. (Ext. PW-1/B), wherein the victim had told her mother that she would be going towards Beas River to fetch
firewood. On the next morning, her clothes, one tops, and one shoe were noticed on the bank of the River Beas, which proves this fact.
(d) On December 15, 2014, around 2.30 p.m., PW-3 Mehar Chand and Bhuvnesh (not examined), were consuming alcohol in the Dhaba, situated in
Alu Ground. At around 3.00 p.m., the accused Kamal Kumar visited the said Dhaba, joined their company and started drinking alcohol with them. At
about 4.00 p.m., Kamal Kumar left the Dhaba:
(i) PW-3 Mehar Chand testified that on December 15, 2014, he along with one Bhuvnesh Kumar (not examined) had visited the Dhaba of one Kumar
situated at Alu Ground. He stated that they started consuming liquor in Dhabha and at around 3.00 p.m., Kamal Kumar visited the Dhaba and joined
their company and started drinking alcohol. After an hour, at about 4.00 p.m., Kamal Kumar left the Dhaba, perhaps for attending some call and after
that did not return. The English version of this statement is at variance with the statement recorded in Hindi. As per the English version, Kamal Kumar
went out of the Dhabha saying that he had to attend call of the nature, to the contrary, in the statement recorded in Hindi, which is in consonance with
the statement of Ms. Shanu Maya (PW-6), who was working in the said Dhaba, which belonged to her brother named, Kumar, reads that at about
4.00 p.m., after listening to a phone call, Kamal had left the Dhaba and after that, did not return. On comparison of these statements what transpires is
that Kamal Kumar had left the Dhaba by saying that he is to attend a phone call and then he did not return.
(ii) The collective reading of these statements leads to the irrefutable conclusion that Kamal Kumar had left the Dhaba at 4.00 p.m. What is
established beyond any reasonable doubt is that Kamal Kumar was present in the Dhaba and he had left the said Dhaba situated, in Alu Ground, at
4.00 p.m. and before that, he had consumed alcohol for an hour.
(e) On December 15, 2014, a little after 5.45 p.m., after taking alcohol, when PW-3 Mehar Chand along with Bhuvnesh, had left the Dhaba and were
returning to their homes, then on the way at Alu Ground, near his shop, Kamal Kumar met them and they noticed scratch marks on his face and blood
in his mouth:
(i) PW-3 Mehar Chand has testified, on oath, that after consuming alcohol from 2.30 p.m. up to 5.45 p.m., he along with Bhuvnesh left the Dhaba and
closed his shop. After that, they were proceeding towards their homes, and near his shop at Alu Ground itself, Kamal Kumar met them, and they
noticed scratch marks on his face and blood in his mouth. The prosecution did not examine Bhuvnesh; however, it is not the quantity, but the quality of
the evidence which matters. Although, the Sun would set on December 15, 2014, at around 5.15. P.M., in Manali, but still the visibility would be
excellent at about 5.45 p.m. When the places are covered with the snow, then due to the reflection, there is more diffusion of light.
(ii) Furthermore, PW-3 Mehar Chand was a local person, and so was the accused, both belonging to the same area and the same locality, whereas the
victim hailed from Nepal. Despite that he testified against the accused. This shows that Mehar Chand was a sterling witness.
(iii) The defence tried to impeach the credibility of (PW-3) Mehar Chand by suggesting that the police had caught and threatened them to implicate
them in the crime and, as such, they made a false statement. The presence of these two witnesses in the Dhaba is corroborated by (PW-6) Ms.
Shanu Maya, who stated that they were in the Dhaba till 4.30 p.m. Although, there is a contradiction about the exact time when Vicky (Bhuvnesh)
and Mehar Chand had left the Dhaba; according to Ms. Shanu Maya (PW-6), they had left the Dhaba around 4.30 p.m., whereas according to (PW-
3) Mehar Chand, they had left the Dhaba at 5.45 p.m. Still, this contradiction will not make them accomplices of the crime. It is pertinent to mention
that the occurrence was of December 15, 2014, and the statements of these witnesses were recorded in the Court in May 2016, i.e., after one and a
half years. Rarely do people note the time when they leave the places unless they are leaving workplaces, schools, or have to board buses, trains, or
planes or to reach their workplaces. It was evening time. Hence, the said contradiction is minor.
(iv) It has also come in the evidence that (PW -3) Mehar Chand was also running a shop at Alu Ground, and he stated that after leaving his Dhaba, he
had closed his shop. It must have consumed some time.
(v) Despite this contradiction, the material fact, which the prosecution has successfully proved is that little after 5.45 p.m., at Alu Ground, (PW-3)
Mehar Chand noticed scratch marks on the cheeks of Kamal Kumar and blood in his mouth.
(f) Recovery of articles of the victim, namely pajama (salwar), lower, string of the pajama which was lying separately from it, headgear (dhatu),
socks, one blue colored shoe, tops (earring), chopper to cut fuelwood, was effected from the bank of Beas River in the morning of December 16,
2014:
(i) When the victim did not return home on the night of December 2014, then in the early morning on December 15, 2014, Banti Devi (PW-1) along
with Sheetal, started searching her and went towards Beas River. On the banks of the River, they noticed clothes of the victim, namely her salwar
(lower) and its string separated from it, one of her blue coloured shoe, one tops, her headgear and the chopper, which she had taken to cut wood. All
these articles were identified by PW-1 (Banti Devi) to be belonging to the victim.
(ii) It has come in the statement of PW- 2 Rajni, that she had telephonically informed the police. She also testified about the presence of the clothes of
the victim on the bank of the River. The police reached the spot and recovered all these articles, vide Recovery Memo (Ext. PW-1). The photographs
Exts. PW-1/A-1 and A-2, depict these clothes. Therefore, this fact is also proved.
(g) Corpus Delcti and the involvement of the Convict:
(i) It has come in the evidence that despite frantic efforts made by the villagers, Nepalis and the divers etc., the police could not recover the dead body
of the victim. However, the banks of River Beas witnessed the tell-tales of her thrown into the River.
(ii) In the cross-examination, PW-15 SHO/Inspector Firoz Khan, in answer to the suggestion of the Defence, about the quantity of water in River
Beas, had stated that he could not say with absolute certainty that what would be the level of water in River Beas in those days and that it would be
shallow.
What the defence tried to suggest by this suggestion, was that because of the low level of water in winters, the dead body would not have floated
away to a far of distance, and as such, there is no evidence that the assailant had thrown the girl into the River Beas. To analyze this plea of the
defence, it is essential to note that it had come in the evidence and that too, by the suggestion of the defence lawyer, that 2-3 days before December
14, 2014, this area had experienced hefty snowfall. It had also come in the suggestion that the snowfall was so heavy that it took five days to restore
traffic and the snow was around three to four feet. Even the SHO stated that despite getting information from the Investigating Officer about the
presence of the clothes on the bank of River Beas, he could reach the spot at around 4.00 p.m. because he had gone to rescue 10-15 people trapped
in heavy snow and after saving them, he could reach the place.
(iii) Although, in winters, due to the drop in temperature, melting of snow slows, bringing down the water level in the Himalayan Rivers to considerably
low. However, the area had experienced heavy snowfall to the extent of three to four feet, just three to five days before December 14, 2014. It would
have led to the melting of snow, especially in the lower altitudes, like banks of the River. The snow is visible in the photographs of the spot, showing
blood on stones and snow, Ext.PW-11/A-3, Ext.PW-11/A-5 & Ext.PW-11/A-6.
(iv) It is safe to conclude that after the heavy snowfall, due to melting of snow, the water level in the River would have gone up, as such, it was quite
possible that when a small girl, just of the age of 14 years, would be thrown in the River, then her body could be washed away up to long-distance.
Fury of the River Beas is so terrible that even the vehicles are sometimes not traced, what to talk of a body of a small girl.
(v) On December 17, 2014, the Investigators had taken the accused to Civil Hospital Manali, where PW-7 Dr. Ashok Rana had extracted blood from
the body of accused, and after sealing the vial with the seals of the Civil Hospital, he had handed over it to the Investigating Officer. On 19 October,
2014, the Investigating Officer had taken accused Kamal Kumar to Civil Hospital Manali, where (PW-5) Dr. Dorje Angrup had medically examined
him and also extracted samples of his hair. After sealing, the same was handed over to the police. The blood and hair collected from the crime scene,
along with the samples of blood and hair of the accused extracted by the doctors, were sent to Forensic Science Laboratory at Mandi for comparison.
As per result No. 4 of the Report (Ext. P-A) of the Forensic Science Laboratory, the blood lifted from the spot and the blood of the accused was of
‘AB’ Group. Similarly, and more importantly, the Laboratory vide its Result No. 10, found the human hair lifted from the spot to be consistent
and comparable with the sample of hair extracted from the head of accused-Kamal Kumar.
(vi) There is no doubt that the prosecution did not send the blood and hair samples obtained from the spot for its comparison with the blood and hair
samples of the accused for conducting a DNA test, as mandated under Section 53 (A) (2) (iv) of IPC. Still, this deficiency in the investigation needs
assessment in the light of the other evidence proved on record. At this stage, it shall be appropriate to remind the State of the pronouncement of the
Hon’ble Supreme Court in Krishan Kumar Malik Vs. State of Haryana, 2011 (7) SCC 130. It is appropriate to extract a relevant portion of the
judgment mentioned above, which reads as follows:
“44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for
the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its
case against the accused. Prior to 2006, even without the aforesaid specific provision in the Criminal Procedure Code prosecution could have still
resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the
prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences.â€
(vii) Why did the Investigating Officer not send DNA for comparison, is not explained, probably because the victim belonged to the most impoverished
strata of Society. It pains one’s heart to see such a callous approach towards the people who do not have any say in the system.
(viii) The other evidence, which conclusively proves the presence of Kamal Kumar on the bank of Beas, has come in the evidence of the mother of
the victim; wherein she had noticed the clothes of the victim, as well as blood on stones and snow, which the police had collected as evidence.
Although the prosecution did not conduct DNA matching, still blood grouping was done by the Laboratory, and the blood of the accused was of Group
‘AB,’ and the blood found on the bank of River Beas near to the clothes of the victim was also of Group ‘AB.’ Moreover, as per the
report of Forensic Science Laboratory, the hair recovered by the police from the spot, in the morning hours of December 16, 2014, matched with the
samples of hair taken from the accused. All this evidence is sufficient to establish that the accused was present on the banks of the River Beas,
where his blood had oozed out. The accused had bleeding from his tongue, which, according to the doctors, was due to tooth bite. The hair recovered
from the spot where the clothes of the victim were recovered, matched with the hair of the accused.
(ix) The accused had removed the pajama of the victim, exposing her privates. Pajama was lying scattered along with the string taken off from it,
which confirms violence in the opening of the pajama and the resistance put up by the young girl. The accused had no enmity with her; she had no
money or jewellery to be robbed; her only fault was that she had genitals, similar to from where the accused had also taken birth. The Motive is
obvious. It would be doing injustice to the victim to assume the absence of rape in the absence of medical evidence or the absence of her body.
(x) Judicial Precedents on the law relating to Corpus Delicti
(a) In Ram Chandra v. State of U.P., AIR 1957 SC 381, a three judge bench of Hon’ble Supreme Court holds,
6. In this case the outstanding feature is that there is no tangible evidence, either of a direct or of a circumstantial nature, in support of the fact that the
murder has been committed. It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There
may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.
(b). In Rama Nand and Ors. v. State of Himachal Pradesh (1981) 1 SCC 511, the Hon’ble Supreme Court holds,
...In other words, we would take it that the corpus delicti, i.e., the dead-body of the victim was not found in this case. But even on that assumption,
the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability,
she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be
proved by the prosecution is that the accused caused the death"" of the person alleged to have been killed.
28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been
caused. Ordinarily, the recovery of the dead-body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of
the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was
convicted of committing his culpable homicide.
I would never convict"", said Sir Mathew Hale, ""a person of murder or manslaughter unless the fact were proved to be done, or at least the body was
found dead"". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for
adhering to this cautionary rule was greater. Discovery of the dead-body of the victim bearing physical evidence of violence, has never been
considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead-
body is impossible. A blind adherence to this old ""body"" doctrine would open the door wide open for many a heinous murderer to escape with impunity
simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be
interpreted no more than emphasising that where the dead-body of the victim in a murder case is not found, other cogent and satisfactory proof of the
homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by
circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence
alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a
homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this
imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be ""proved"", if the Court considering the
matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which
definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
(c). In Lakshmi and Ors. v. State of Uttar Pradesh, (2002) 7 SCC 198, the Hon’ble Supreme Court holds,
16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the
deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under
Section 302 Indian Penal Code. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these
aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those
who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand
established against an accused even in absence of identification of the body and cause the death.
(d). In State of Karnataka v. M.V. Mahesh, (2003) 3 SCC 353, the Hon’ble Supreme Court observed,
“3…..It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on
appropriate material being made available to the court. In this case no such material is made available to the court.
(e). In Rishipal v. State of Uttarakhand, (2013) 12 SCC 551, Supreme Court holds,
14. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution
is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal
to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case
involving a charge of murder.
(h) Extra Judicial Confession:
(i) PW-3 Mehar Chand stated that at about 5.40 p.m., on December 15, 2014, when he was with Bhuvnesh, they again met the accused and noticed
blood in his mouth and scratch marks on his cheeks, and they obviously inquired from him about these injuries. The accused explained to them that he
quarrelled with a girl and the said girl gave a tooth bite on his tongue, and due to anger, he threw her in the flowing River. At that time, these people
thought that he was joking, but after 2-3 days, they realized that he was speaking the truth.
(ii). The accused had consumed liquor for at least one hour with these people. On being confronted with the injuries, he had revealed to them about
throwing the girl into the River by him; the cordial relations would infer that he had reason to reveal and explain to them. By that time, he would not be
expected to meet some people and suddenly on being confronted by them, came up with half the explanation. Thus, it cannot be said that there was no
occasion for the accused to make an extra-judicial confession. On the other hand, given the situation, this extra-judicial confession is corroborated by
the doctors, who also found the wound on his tongue, as a result of teeth bite and the fact of throwing the girl into the River, the recovery of her
clothes on the bank of the River. While explaining, the accused did not tell about the sexual assault, but that was the only motive for him to throw
away the child.
(iii) PW-3- Mehar Chand, to whom the accused was known, testified the fact of confession. Both PW-3 Mehar Chand, as well as the accused, were
natives of the same place, whereas the victim was of Nepalese origins. The closeness of the accused with PW-3 Mehar Chand gets corroboration
from the statement of (PW-6) Ms. Shanu Maya. When accused had reached the Dhaba of Kumar, then he found (PW-3) Mehar Chand consuming
liquor with Bhuvnesh, and he joined them.
(iv). Another factor, which assumes significance, is that the victim belonged to Nepal and was a poor girl and although, (PW- 1) Banti Devi mentioned
it in her testimony that she had adopted her. Still, we cannot lose sight of the fact that people keep girls from a low-income family as domestic maids.
Despite that, (PW-3) Mehar Chand testified those facts which he knew would go against his local companion Kamal Kumar.
(v) In Jagroop Singh v. State of Punjab, AIR 2012 SC 2600, Hon’ble Supreme Court holds as under:-
“24. The issue that emanates for appreciation is whether such confessional statement should be given any credence or thrown overboard. In this
context, we may refer with profit to the authority in Gura Singh v. State of Rajasthan, 2001(1) R.C.R.(Criminal) 122 : (2001)2 SCC 205 wherein, after
referring to the decisions in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, Maghar Singh v. State of Punjab, AIR 1975 SC
1320, Narayan Singh v. State of M.P., AIR 1985 SC 1678, Kishore Chand v. State of H.P., 1990(3) R.C.R (Criminal) 650 : AIR 1990 SC 2140 and
Baldev Raj v. State of Haryana, 1991(1) R.C.R.(Criminal) 75 : AIR 1991 SC 37, it has been opined that it is the settled position of law that extra
judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite
inherent weakness of extra- judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a
person who has no reason to state falsely and his evidence is credible. The evidence in the form of extra-judicial confession made by the accused
before the witness cannot be always termed to be tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If
the court believes the witness before whom the confession is made and is satisfied that it was true and voluntarily made, then the conviction can be
founded on such evidence alone. The aspects which have to be taken care of are the nature of the circumstances, the time when the confession is
made and the credibility of the witnesses who speak for such a confession. That apart, before relying on the confession, the court has to be satisfied
that it is voluntary and it is not the result of inducement, threat or promise as envisaged under Section 24 of the Act or brought about in suspicious
circumstances to circumvent Sections 25 and 26.
25. Recently, in Sahadevan & Another v. State of Tamil Nadu, 2012(2) R.C.R.(Criminal) 899 : 2012(3) Recent Apex Judgments (R.A.J.) 23 : 2012
AIR SCW 3206, after referring to the rulings in Sk. Yusuf v. State of W.B., 2011(5) R.C.R.(Criminal) 762 : 2011(5) Recent Apex Judgments (R.A.J.)
308 : (2011)11 SCC 754 and Pancho v. State of Haryana, 2011(4) R.C.R.(Criminal) 665 : 2011(5) Recent Apex Judgments 481 : (2011)10 SCC 165 :
AIR 2012 SC 523, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the
court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial
confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other
prosecution evidence; that for an extra- judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and
inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law.â€
(I) Recovery of clothes of accused vide recovery memo Ext. PW- 8/A:
(i). The Prosecution has failed to prove such recovery because there were two independent witnesses while making this recovery. One was HC Kapil
Kumar (PW-8) and the second was Rohit Kumar. PW-8 was a police witness, and unless an independent witness corroborates such recovery, it
would be difficult to rely upon it. Needless to say that it is not a recovery based upon the disclosure statement under Section 27 of the Indian Evidence
Act, but one which viz-a-viz which would fall under Section 102 of CrPC. As such, it was incumbent upon the prosecution to examine Rohit Kumar,
the sole independent witness, but for the reasons best known to the Prosecution, he was not examined. PW-2 Rajni also corroborated the seizure of
articles from the spot.
(j) Injury on the tongue of the accused and his explanation thereof:
(i). The fact of the victim having been thrown into the River by the accused and none else is sure because of the presence of abrasions on both
cheeks of the accused as well as a puncture wound on his tongue, relating to the time when the victim had gone missing. The most clinching evidence
is the statement of (PW-3) Mehar Chand. He is a reliable witness, with no axe to grind against the accused and his testimony remained un-shattered.
He deposed that at around 4.00 p.m., when the accused had left his company, then he did not tell about any injury, but at around 5.45 p.m. when the
accused met him again, he had found abrasions on his cheek and blood in his mouth.
(ii). The statement of (PW-9) Dr. Ram Singh assumes significance. According to the testimony of this witness, he runs a Clinic at Patli Kuhal and in
the morning hours, at around 10.30 a.m., on December 16, 2014, the accused had visited his Clinic. On examination of the accused, he noticed an
ulcer of around 2 centimetres on his tongue, covered with blood clot. The accused gave a history to the doctor that he had a fall on the previous day.
The prosecution had proved one prescription slip by this doctor, exhibited as PW-9/A. A perusal of the original document shows that it has four-folds
when seen from its reverse portion. This fold will occur when somebody keeps this slip after folding it in the pocket. This prescription slip was
supposed to be with the accused and not with the doctor himself. Strangely, the prosecution did not lead any evidence to prove that how and by which
memo and on which date, it was taken into possession. Therefore, no reliance can be placed on the prescription slip (Ext. PW-9/A). However, be that
as it may, the credibility of the statement of (PW-9) Dr. Ram Singh, who is again a local, remains un-impeached that he had examined the accused on
December 16, 2014, at around 10.30 a.m. and had notice clotted blood in his tongue. The doctor further clarified that although the accused also stated
that he received this injury due to a fall, but he has not seen any external injury. According to Stedman’s Medical Dictionary, 23rd Edition, an
‘ulcer’ is defined as ‘a lesion on the surface of the skin or a mucous surface, caused by superficial loss of tissue usually with
inflammations.’ It is also defined as ‘a wound with superficial loss of tissue from trauma which would turn into an ulcer if infection occurs.’
(iii). On Dec 17, 2014 at 9.50 p.m., the police had taken the accused to Civil Hospital Manali, where (PW-7) Dr. Ashok Rana had examined him and
issued MLC Ext. PW-7/B. In his testimony, (PW-7) Dr. Ashok Rana stated that he had noticed punched out on the left anterior part of the tongue
with irregular margins. He had also seen abrasions on the left and right cheeks, measuring approximately ¼ centimeters tapering above -
downwards.
(iv). After his arrest, on Dec 19, 2014, the Investigating Officer had also taken the accused to Civil Hospital Manali, where (PW-5) Dr. Dorje Angrup
conducted his medical examination and issue M.L.C (Ext. PW-5/B). In his testimony, (PW-5) Dr. Dorje Angrup also stated that he had noticed one
injury on the left anterolateral part of the tongue, which was punched off with an irregular infected margin. He also saw that the frenulum/ventral
aspect of the tongue near the frenulum was also infected.
(v). Now, cumulative reading of the evidence of the doctors, who had examined the accused on December 16, 17 and 19, 2014, had noticed a
punctured wound on the tongue of the accused. ASI Gandhi Ram (PW-17) had also mentioned about two abrasions on both the cheeks of the
accused, tapering downwards. (PW-7) Dr. Ashok Rana explicitly stated that this injury is also possible if a person falls on a hard surface and his
tongue comes between the teeth. He further explained that it would also result in corresponding injuries, which were not noticed by him in the MLC.
Similarly, (PW-5) Dr. Dorje Angrup categorically stated that ""the injury found on the tongue of the accused is most likely to be caused by teeth bite.
He denied that this injury was possible by fall from a height because there was no corresponding injury.
(vi). The accused in his statement under Section 313 of CrPC., in answer to question No. 35, admitted that he had stated to the said doctor that he had
a fall on December 15, 2014. Thus, it is proved beyond a reasonable doubt that Kamal Kumar had visited the Clinic of (PW-9) Dr. Ram Singh on
December 16, 2014, at around 10.30 a.m. to get treatment of wound on his tongue, which had clotted blood on it and he had received the injury on the
tongue on Dec 15, 2014.
(vii). A perusal of this irrefutable evidence leads to an irresistible conclusion that the accused had received these injuries on his tongue due to teeth
bite. There is clinching evidence to prove that the abrasions on his cheeks, pointing out towards resistance offered by someone. The tell-tale signs on
the spot are alarming and reveal that, below the torso, the victim was wholly undressed, with her privates exposed. Therefore, no other inference is
possible except that during the process of sexually assaulting a 14 years young girl, the accused was trying to lick her by inserting his tongue in her
mouth, and the girl was fighting like a lioness. She did not give her consent, inflicted teeth bite in the tongue of the accused and caused abrasions on
his cheeks. The presence of the blood on the spot, which oozed out from the tongue of the accused, proves beyond reasonable doubts that he was the
person, who had assaulted the helpless girl.
13. Judicial Precedents on the Law of Circumstantial Evidence::
a) In Hanuman Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, a three member bench of the Hon’ble Supreme Court holds:
10. “…It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should 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…â€
b) In Eradu and Ors. v. State of Hyderabad, AIR 1956 SC 316, the Hon’ble Supreme Court observed
10. ..It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused
and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused.
c) In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, a Constitutional Bench of the Hon’ble Supreme Court holds:
18. …It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons'
conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the
circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of
doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called
primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the
Courts has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there
is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a
particular fact or not. When it is held that a certain fact is proved; the question arises whether that fact leads to the inference of guilt of the accused
person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if
the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt…
d) In Gambhir v. State of Maharashtra, (1982) 2 SCC 351, the Hon’ble Supreme Court holds:
9. …The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three
tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances
should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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. 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. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In
the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies
the requirements of law.
e) In, Sharad Biridhichand Sarda v State of Maharashtra, (1984) 4 SCC 116, a Three Member Bench of the Hon’ble Supreme Court holds:
151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This
is trite law and no decision has taken a contrary view. What some cases have held is only this where various links in a chain are in themselves
complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional
link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity
or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof
required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State
of Madhya Pradesh, (supra). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may be useful
to extract what Mahajan, J. has laid down in Hanumant's case (supra) :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established and all the facts so established should be consisent 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.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be
fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a
grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra, (1973) 2 SCC 793 where the following observations were made :
certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between
'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
f) In Kishore Chand v State of Himachal Pradesh, (1991) 1 SCC 286, the Hon’ble Supreme Court holds
5. “In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words
when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must
be fully established…â€
g) In Vasa Chandrasekhar Rao v. Ponna Satyanarayana & Anr. (2000) 6 SCC 286, the Hon’ble Supreme Court observed:
7. …Where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances
from which a conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be
consistent only with the hypothesis of the guilt and inconsistent with the innocence; and the circumstances should exclude the possibility of guilt of any
person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be
incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused
and to bring home the offence beyond any reasonable doubt. Where accused on being asked, offers no explanation or the explanation offered is found
to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt.
h) In B. Venkat Swamy v. Vijaya Nehru, (2008) 10 SCC 260, a Three Member Bench of the Hon’ble Supreme Court observed:
19 . “...13. Sir Alfred Wills in his admirable book ""Wills' Circumstantial Evidence"" (Chapter VI) lays down the following rules specially to be
observed in the case of circumstantial evidence:(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to
justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any
other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be
acquitted"".
(i) Placing reliance upon the Principles of law laid down by the Hon’ble Supreme Court in Hanumant Govind Nargundkar and anr. v. State of
Madhya Pradesh,AIR 1952 SC 343, the Bench holds,
14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to
circumstantial evidence laid down by the this Court as far back as in 1952.
SUM UP:
14. From the summary of law relating to Circumstantial Evidence, the following fundamental principles emerge:
(i) CIRCUMSTANCES SHOULD BE FULLY ESTABLISHED:
The circumstances from which the conclusion of guilt is to be drawn should be fully established. (Sharad, (1984) 4 SCC 116). In assessing the
evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct
witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established.
(Kishore, (1991) 1 SCC 286).
(ii) CIRCUMSTANCES SHOULD BE CONSISTENT:
The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (Gambhir, 1982
(2) SCC 351). It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused
persons' conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If,
the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the
benefit of doubt. (M.G. Agarwal, AIR 1963 SC 200).
(iii) CIRCUMSTANCES SHOULD BE CONCLUSIVE:
The circumstances should be of a conclusive nature and tendency. (Sharad, (1984) 4 SCC 116). It is a fundamental principle of criminal jurisprudence
that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the
offence and such evidence should be incompatible with the innocence of the accused. (Eradu, AIR 1956 SC 316).
(iv) CIRCUMSTANCES SHOULD BE OF DEFINITE TENDENCY:
Circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (Gambhir, (1982) 2 SCC 351).
(v) NO OTHER HYPOTHESIS EXCEPT ONE TO BE PROVED:
The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty. (Sharad, (1984) 4 SCC 116). 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. (Gambhir, (1982) 2 SCC 351). They should
exclude every possible hypothesis except the one to be proved. (Sharad, (1984) 4 SCC 116).
(vi) CUMULATIVE EFFECT OF GUILT & NOT INNOCENCE:
In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the
innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the
offence beyond any reasonable doubt. (Vasa Chandrasekhar, (2000) 6 SCC 286).
(vii) CHAIN OF CIRCUMSTANCES MUST BE COMPLETE:
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. (Gambhir, (1982) 2 SCC 351).
(viii) FALSE DEFENCE AS AN ADDITIONAL LINK ONLY WHEN ALL CIRCUMSTANCES ARE ESTABLISHED:
Where accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the
chain of circumstances to point out the guilt. (Vasa Chandrasekhar, (2000) 6 SCC 286). It is well settled that the prosecution must stand or fall on its
own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some
cases have held is only this that where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid
only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied
by a false defence or a plea which is not accepted by a court. (Sharad, (1984) 4 SCC 116).
15. These circumstances, on its own, make an unbroken chain of evidence pointing out towards the guilt of the accused. Apart from this, the
Prosecution has relied upon the evidence of extra-judicial confession, which, even if ignored, would not change the outcome of this case. Resultantly,
the prosecution has proved that it was the accused, who undressed the young girl to commit sexual intercourse with her, and then intending to screen
the evidence, threw her in the River Beas. The non-recovery of her dead body is not necessary to prove her death.
16. Learned Counsel for the accused argued that the link evidence is missing and the prosecution had failed to prove that the samples of hair and
blood remained un-tampered before they were tested in the Laboratory.
17. This submission has no force. Firstly, because the police had recovered hair, immediately on reaching the spot, and there was no possibility of
police planting the hair of the accused. At that time, the accused was not even a suspect. The recovery memo Ext. PW-1/A, signed by Banti Devi,
contains this fact. Undoubtedly, the Prosecution did not examine Sheetal, but in their testimonies, both Banti Devi (PW-1), and her daughter PW-2
Rajni, corroborate the recovery. They had no enmity with the accused, and there was no reason to concoct evidence to frame him. Her cross-
examination failed to impeach her credibility. The Investigating Officer (PW-17) ASI Gandhi Ram testified about the recovery of blood and hair from
the place. The defence could not cast any dent to doubt this recovery.
18. The Investigating Officer, PW-17 Gandhi Ram collected the evidence and sealed the same. He handed over it to PW-13 Head Constable Vivek
Kumar, who was on duty as MHC in Police Station, Manali on December 16, 2014. The prosecution examined (PW-16) Head Constable Bal Krishan,
who was the officiating MHC on December 20, 2014, on account of the leave of MHC Vivek and on that day, he had handed over the case property
along with Road Certificate to (PW-4) Head Constable Lal Singh to deposit the same in RFSL, Mandi. The prosecution had examined PW-4 Head
Constable Lal Singh to prove that he had taken the samples to the laboratory on December 20, 2014, after receiving the same from MHC Bal Krishan
and on the same day, he had deposited the same in the laboratory.
19. Regarding link evidence, the report of the laboratory, which is per se admissible under Section 293 of Cr.P.C., reveals that it had received the
samples on December 20, 2014, and seals on the parcels were intact. They had tallied with specimen seals sent with the docket. Therefore, the link
evidence is complete. The prosecution has proved that the case property remained un-tampered.
20. On what basis, the Investigators and the prosecution concluded that it was an attempt to rape, is beyond any comprehension. They relied upon the
inadmissible portion of the disclosure statement of the accused made by him on December 16, 2014 (Ext. PW-3/A), wherein he had stated that he
could point out the spot near the River Beas, where on December 15, 2014, at about 4.30 p.m., he had found the victim alone cutting fuelwood and
then tried to commit evil act with her and after that threw her in the River. This statement does not lead to the discovery of any fact, as such, would
not fall under the exception to the Recoveries, under Section 27 of the Indian Evidence Act, 1872. On its plain reading, it is hit by Section 26 of the
Indian Evidence Act and could not be proved.
21. Any person accused of such a heinous offence would not necessarily tell that he was able to complete the sexual act. The accused successfully
mislead the Investigation by camouflaging his ghastly deed. The accused later on denied everything. Had he been charged under Section 201, 376 of
IPC and POCSO, the sentence would have been proportionate to the crime. There was no reason for this pervert to spare this small girl without
satisfying his lust to the fullest. There was nobody to save her. Section 375 IPC, states that even the slightest penetration amounts to rape. Her dead
body could never be recovered to reveal how much trauma she had to undergo. The motive of the offence was sex, and the purpose of pushing her in
the River was undeniable to destroy the evidence. Undoubtedly, the burden is on the prosecution to prove every allegation. Still, under Section 106 of
the Indian Evidence Act, the burden shifts on the accused, when the initial burden is discharged by the prosecution, and to prove the facts which were
especially within the knowledge of the accused.
22. The law is no more res Integra that an accused cannot be convicted for an offence higher than for what he was charged. The trial Court framed
charges, for the offences punishable under Sections 302 and 376 read with Section 511 of IPC, because the police had filed the report under Section
173 (2) of CrPC, claiming prosecution only for the commission of these offences. Nobody bothered to invoke the provisions of the POCSO Act as
well as to frame charges under Section 201 and 376 of IPC. The State-respondent must keep this aspect in mind while considering remissions to the
accused.
23. Resultantly, the prosecution has proved that it was the accused, who threw her in River Beas. The non-recovery of her dead body is not fatal to
prove her fatal end.
CONCLUSION:
24. Given the analysis of the evidence and application of the law, the prosecution has proved its case beyond any reasonable doubt. The evidence
proved on the record is sufficient to conclude guilt and the chain of circumstances is complete. There is no error in the reasoning of the Trial Court,
and there is no occasion for this Court to take a view contrary to the one taken in the impugned judgment. The Trial Court, in our considered opinion,
has correctly and accurately appreciated the evidence. Accordingly, the judgment passed by the Trial Court is affirmed, the appeal fails, and it is,
therefore, dismissed. Registry to return the records to the Trial Court.
