JUDGMENT
B. Panigrahi, J.
1. This appeal assails the order of conviction passed against the appellant under Sections 302 and 376 of the Indian Penal Code and sentence to undergo imprisonment for life and R.I. for 10 years respectively. Both the sentences were directed to run concurrently.
2. The prosecution case as unravelled in trial court’s judgment is as follows :
On 8.8.1983 at about 1.00 P.M., P.W. 1, Mainsa Majhi noticed a deadbody of a girl in Kaju plantation of village Soso at the time of grazing buffaloes. He called Jogeswar Patra, the Gramarakhi (P.W. 2) of village Soso, who guarded the deadbody. Thereafter, P.W. 1 reported the matter before the officer-in-charge, Bahalda Police station at 3.45 P.M. The girl was clad a violate colour frock and a girls’ panty M.Os. IV and I. By the side of her deadbody a pair of chappals (M.O. II) had been kept. The unknown girl was having a clean incised wound on her throat. On receipt of the said report, Officer-in-charge, Bahalda Police Station (P.W. 14) immediately proceeded to the spot, conducted inquest over the deadbody, arranged to take the photograhps of the girl, seized the violate colour frock, girls’ panty and pair of chappals, despatched the deadbody for post-mortem examination to Bahalda P.H.C. The fact of tracing the deadbody of a girl was informed to the nearby Police Stations. Accordingly, the brother of the deceased came to the Police Station and identified the deadbody to be of his sister. He further stated that his sister went to the Subdivisional Headquarters hospital, Rairangpur to attend her ailing mother and since then she did not return to the house. During the progress of further investigation P.W. 4, an Urdu Teacher, informed the police to have seen the appellant and the deceased boarding a bus on 6.8.1993 (Friday) at 4.00 P.M. towards Tiring. In course of investigation, P.W. 5 also disclosed to have seen the appellant in the company of a girl. P.W. 4 identified the photograph of the girl and also her clothes. On the basis of the statements of P.Ws. 4 and 5, P.W. 14 directed his investigation against the appellant and arrested him and had taken him to custody. While the appellant was in custody, it is stated that he made a disclosure statement and led the police and witness to the place where he had concealed the knife which he allegedly used as a weapon of offence. He was sent for medical examination and his pant and other clothes were seized. P.W. 14 further sent the clothes of the deceased, bloodstained earth, sample earth, clothes of the accused for chemical examination. After completion of investigation, P.W. 14 placed charge-sheet against the appellant.
3. The learned Sessions Judge on an evaluation of the evidence held the appellant guilty of having committed the offence of rape and murder as well and sentenced him as stated above.
4. Miss. Mohapatra, the learned Advocate appearing as a State Defence Counsel has submitted that this case depends upon circumstantial evidence. In such a case, the prosecution should place all the circumstances which should have a definite tendency pointing towards the guilt of the accused. A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law. It must be realised that the well established rule of Criminal justice is that “fouler the crime higher the proof.”
5. Miss. Mohapatra further submitted that there must be a close proximity between the event of accused last seen together with deceased and the factum of death of the deceased. She placed reliance on the decision of the Supreme Court reported in (2002) 6 Supreme Court Cases 715 (Mohibur Rahman and Anr. v. State of Assam) wherein it has been held :
“The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
*** *** *** Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased."
6. While appreciating the case based on circumstantial evidence, all the circumstances from which the connectivity between the accused and the crime should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused and such circumstances must be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused.
7. Keeping the aforesaid principle in mind, let us examine the fact situation of the prosecution case.
8. On a consideration of the evidence of P.W. 14, it is revealed that he directed the investigation against the appellant only after having come to know from P.W. 4, that he had last seen the appellant together with the deceased. From the evidence of P.W. 4 it has transpired that two years preceding his examination in court he claimed to have seen the appellant with a girl aged about 11 to 12 years in Rairangpur Government Hospital. At that time he was sitting near Rairangpur Bus stand. He has not claimed to have known the appellant prior to that date. He only saw on the date of incident the appellant together with the deceased. He, however, deposed to have made an enquiry from the deceased, who divulged that she had come to see her ailing mother in the hospital. The approximate time gap between the death of the girl and the deceased was last seen by P.W. 4 has not been disclosed. He had also found the deceased in the company of the appellant boarding a ‘407 bus’ leading to Tiring. There has been no evidence whatsoever that both of them got down from the bus at Tiring. He has also proved the frock, which was alleged to have been worn by the deceased on the date and time when P.W. 4 saw her going in the bus. It is unrealistic and imaginative for a person to remember a dress which was said to have been clad by the deceased two years’ preceding his examination. No step was taken by the prosecution to arrange T.I. parade for identifying the wearing apparels of the deceased by P.W. 4. In the absence of any other corroborative evidence to prove the guilt of the accused, the evidence that the accused and the deceased were last seen together cannot lead to a conclusive proof that the accused-appellant was the author of the crime. There were various intervening circumstances between the time when P.W. 4 claimed to have seen the deceased in the company of the appellant and the discovery of the deadbody inside the Kaju plantation. Suspicion regarding the complicity of the appellant, however, strong may be cannot take the place of proof.
9. Then coming to the evidence of P.W. 5, who was a driver of the ‘407 Bus’ it is seen that two years before on a Friday he was driving a ‘407 Mini bus’ bearing No. OSM 2962. It is unusual for a driver to take note of the daily passengers who were boarding the bus. But peculiarly P.W. 5 had claimed to have seen his niece, the deceased, with the appellant, Karim Bux. On his query the appellant told that they were going to Soso for fetching a fowl for the recovery of the mother of deceased. The prosecution has failed to adduce evidence that the accused as well as the deceased got down from the Bus at Soso and they were seen together much less near the Kaju plantation.
10. Prosecution wanted to place another circumstance about the extra judicial confession alleged to have been made before P.W. 6 by the appellant. P.W. 6 had deposed in the trial court that on 8.8.1983 the appellant told him to have committed rape on a girl of Rairangpur. The evidence regarding extrajudicial confession is by itself a weak circumstance being without any other corroborative evidence. P.W. 6 did not know the appellant prior to the date when he allegedly made an extra judicial confession. It is not understood why the appellant reposed so much confidence on a person whom he did not know previously. Therefore, the version of P.W. 6 is equally not free from suspicion.
11. The other piece of evidence regarding recovery of the knife at the instance of the appellant while in police custody was on P.W. 7. From his evidence it has been established that no such recovery much less of the knife was given by the appellant. P.W. 8 also did not support the prosecution. Even assuming such recovery being made under Section 27 of the Evidence Act, the prosecution has significantly failed to establish any other incriminating materials against the appellant. On a reading of the evidence of P.W. 10, the Medical Officer, it appears that the deceased has received the following injuries :
1. One sharp cutting injury of size 3″ x 11/2″ horizontal at left femoral area below medial portion of left inguinal ligament, muscle deep. Blood stains found around the injury.
2. The neck was having incized wound of about 8″ long at the level of C 5 cutting the skin, fascia, thyroid, trachea, oesophagus, vessels and nerves of the neck, muscles of the side of the neck and front of neck vertebra and spinal cord was severed in horizontal aspect with blood and hairs on the margins with large number of maggots in the wound. Posterios muscles were partially intant. Posterior part of the skin of left side were intact connecting the neck to the body.
3. The vagina was having abrasions and contusions with vulva injury. The vagina was opened. No foreign public hairs found. Hymen lacerated. Posterior part of the vagine measuring about 1/2″ protruding due to decomposition.
All these injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. According to him, deceased met a homicidal death, after committing sexual ravish on her.
12. It is found from the evidence of P.W. 1 that the appellant was a married person. From the evidence of P.W, 13, the Medical Officer, who examined the accused-appellant it appears that he found one healed abrasion on the skin under the surface of shaft of penis near the junction of glans and shaft near frenum. But according to him, such injury on the penis could have been possible in case of forcible penetration even with an unwilling wife. That being the position the evidence of P.W. 13 could not, however, come to the rescue of the prosecution in order to bring home the charge against the appellant. The Chemical Analysis report also has not conclusively brought out any clinching evidence against the appellant.
13. Therefore, on the available evidence placed before us, we are, however, unable to agree with the findings and observations of the learned Sessions Judge in convicting the appellant under Sections 302 and 376 of the Indian Penal Code. Accordingly, the appeal is allowed and the conviction and sentence passed against the appellant are hereby set aside. He be set at liberty forthwith.
P.K. Misra, J. : I agree.