Holding

The conviction and death sentence were upheld because the chain of circumstantial evidence was complete, the FIR was properly recorded, the disclosure statement was admissible, and the case qualified as ‘rarest of the rare’.

Summary

The appellant, a security guard, was transferred after complaints of teasing a young girl living in an apartment. Ignoring the transfer, he went to the girl’s flat under the pretext of making a telephone call, raped and murdered her, and stole her wrist‑watch. The prosecution relied on a chain of circumstantial evidence – testimony of the supervisor, lift operator, recovered broken chain, a shirt button matching the appellant’s shirt, the stolen watch recovered from his house, and his subsequent absconding – to establish his guilt. The Supreme Court held that the circumstantial evidence was complete, the disclosure statement under Section 27 of the Evidence Act was admissible, and the telephonic message did not constitute an FIR, which was correctly recorded later. The Court also found motive and rejected the appellant’s alibi. Declaring the case “rarest of the rare,” it upheld the conviction for murder, rape and theft and confirmed the death sentence. The appeal was dismissed.

Issues considered

The adequacy of the circumstantial evidence to sustain conviction.
Whether the telephonic message to police constituted a First Information Report under CrPC s.154.
The admissibility of a disclosure statement made by the accused under Evidence Act s.27.
The weight to be given to testimony of a hostile witness.
The existence of motive and its relevance.
The appropriateness of the death penalty under the ‘rarest of the rare’ doctrine.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 162, s. 313
Indian Evidence Act, 1872s. 106, s. 11, s. 25, s. 26, s. 27
Indian Penal Code, 1860s. 302, s. 376, s. 380

Subjects

circumstantial evidencemurderrapetheftdeath penaltyrarest of rareFIRhostile witnessdisclosure statementmotivesecurity guard

Judgment

DHANANJOY CHATIERJEE @ DHANA A
- v.
STATE OF WEST BENGAL

JANUARY 11, 1994

[DR. AS. ANAND AND N.P. SINGH, JJ.) B

Indian Penal Code, 1860 : Ss. 302, 376 and 38o--Rape and murder of
young gi,rl by a Security guard in the Apartment-Theft of a Watch-Conviction
based on circumstantial evidence-Recovery of chain and shirt button of ac-
cused from place of occu"ence-Also circumstances of motive, accused's visit C
to victim's flat and accused absconding after the occu"ence of the crime--
Recovery of stolen watch and shirt and pant of accused on the basis of dis-
closure statement-Chain of circumstantial evidence complete leading to guilt
of accused-Conviction and sentence of death upheld.

Criminal Procedure Code, 1973: Ss. 154-FIR-Vague and indefinite D
telephone message making the police rush to the scene of occu"ence-Held
does not constitute FIR.
\
Criminal Trial: Witnesses-Hostile witness-Testimony of-Not to be
ignored completely-To be carefully examined-That part of the testimony
which receives co"oboration from other evidence on record could be ac- E
cepted.

Evidence Act, 1872 : Sections 25, 26 and 27-Disclosure statement
made under Police Custody-Admissibility of that part of the Statement which
distinctly relates to discovery of articles pursuant to disclosure statement. F
Sections 11 and 106-Alibi-plea of-To be proved by cogent and satis-
factory evidence-Possibility of accr-'sed's presence at the scene of occu"ence
at the relevant time-To be completely excluded by adducing necessary
evidence.
G
Penology: Measure of punishment-Factors to be considered-Retribu-
tive aspect of punishment-Need fo,._..punishment to depend upon atrocity of
crime-Appropriate punishment to be gi,ven keeping in view not only the rights
of accused, but also rights of victims and society.

Words and Phrases : "Facts discovered''-Meaning_pf-ln the context of H
37
38 SUPREME COURT REPORTS (1994) 1 S.C.R.

A S. 27 of Evidence Act; 1872.

The appellant was one of the security guards posted in an apartment.
Be was teasing a girl living with her parents in one of the Oats there. Be
once invited her to a cin~ma hall for seeing a movie. The girl complained
B to her mother. Both the parents lodged a written complaint to the
propr~etor of the Security Agency which employed the appellant, and the
proprietor immediately transferred the appellant to another building and
posted another security guard in the said apartment, with immediate
effect. However, the appellant did not report for duty at his new place of
posting and continued to remain in the building. On that very day, the girl
C returned from her school and was alone in her Oat since her father and
brother had gone to look after their business and the mother had gone to
temple. On the pretext of making a telephone call to his employer the
appellant went to her flat. After some time his Supervisor visited the said
Apartment to find out why the appellant had not complied with the
D transfer order. Be was told that the appellant had gone to the girl's Oat
for making a telephone call. Since there was no response or the intercom
phone one guard went and called out the appellant, who rushed out of the
flat '.and met the Supervisor and told him that he would obey the transfer
J-
orders and join duty in the new place next day since due to some personal
difficulty he could not go there the same day. The appellant thereafter left
E the place. After sometime, the mother of the girl returned from the temple
and since there· was no response to the call-bell, the lock was broken. The
girl was lying in her cot with blood stains. A doctor was summoned and
after examination he pronounced that she was dead. Later it came to light
that the girl had been raped and murdered.
F
The appellant abandoned his job and was not traceable. After a few
days, he was arrested from his uncle's house. After investigation, he was
challaned and tried for rape and murder of the girl and for committing
theft of a wrist watch from her flat. He was convicted and sentenced to
G death for committing murder, life imprisonment for rape and 5 years
rigorous imprisonment for theft. High Court confirmed the sentence of
death after dismissing the appeal preferred by the appellant. Hence this
appeal. On behalf of the appellant it was contended that there was no eye
witness and the chain of circumstantial evidence did not lead to the guilt
H of the appellant. ·
T

DHANANJOY v. STATE OFW.B. 39

Dismissing the appeal, this Court A
HELD : 1. It is settled law that in a case such as the present one based
on circumstantial evidence, the circumstances from which the conclusion of
guilt is to be drawn have not only to be fully established but also that all the
circumstances so established should be of a conclusive nature and consis-
tent only with the hypothesis of the guilt of the accused. Those circumstan- B
ces should not be capable of being explained by any other hypothesis, except
the guilt of the accused and the chain of the evidence must be so complete
as not to leave any reasonable ground for the belief consistent with the
innocence of the accused. Legally established circumstances and not merely
indignition of the court can form the basis of conviction and the more C
serious the crime, the greater should be the care taken to scrutinise the
evidence lest suspicion takes the place of proof. [49-E-F]

2. The cryptic telephone message received at the Police Station from
PW4 father of the deceased, had only made the police agency to rush to
the place of occurrence and record the statement of PW3 the mother of the D
deceased, and thereafter commence the investigation as was admitted by the
investigating officer in his testimony which testimony was not challenged
during the cross-examination of the investigating officer. The Hif)l Court
failed to notice that the vague and indefinite infonnation given on the
telephone which made the investigating agency only to rush to the scene of E
occurrence could not be treated as a first information report under Section
154 of the Cr.P.C. The unchallenged statement of the investigating officer
that he commenced the investigation only after recording the statement of
PW3 unimistakably shows that it was that statement which alone could be
treated as the first information report. The High Court fell in error in
observing that the statement of PW3 was recorded "after the investigation F
bad already commenced." (50-D-F]

3. The transfer of the appellant on grounds of bis improper be-
haviour with the deceased was an aspersion on his character and that
appears to have provided him the immediate motive for committing the G
crime in retaliation and even may be to remove the evidence of committing
rape on the deceased. The prosecution has successfully established the
existence of motive on the part of the appellant to commit the crime. (53-E]

4. Though PW8 the lift operator who took the appellant to the third
ftoor (where the flat of the deceased was located) by the lift, turned hostile H
T
40 SUPREME COURT REPORTS (1994) 1 S.C.R.

A at the trial, he did not go back on the entire version as earlier given by
him. The testimony of PW8 need not, therefore, be ignored totally and the
court can scrutinise his testimony and accept that portion of the same
which receives corroboration from other evidence on record. The testimony
of a hostile witness is not liable to be rejected without even scrutipising it
although great care and caution is required to analyse the same before
B accepting any part 'there of if it is otherwise found reliable and consistent
with the prosecution case. (54-E-F]

5. PW8 does afford corroboration regarding the presence of the
appellant at the time of visit of PW6 ~e Supervisor to the Apartment and
C his coming down the stairs from the third floor on being called by PW7,
the security guard on duty. On the return of PW3 from the temple, PW8
the liftman told her that the appellant had gone to. her Oat to make a
telephone call. Despite lengthy cross-examination, the testimony of PW6
and PW7 on this aspect of the case has remained unshattered. Their
D credibility has not been impeached at all. The appellant could not have
gone to the third floor unnoticed. Even if it be assumed that PW7 was not
aware of the transfer order, the appellant's duty was already over and
without giving some explanation to PW7 the guard on duty, he could not
have gone to the Oat of the deceased. There was, therefore, nothing im-
probable for the appellant to have told the guard on duty that he was going
E to that particular Oat and to have coined a false excuse that he was going
there with a view to contact the office on telephone. (54-F-H, 55-A, CJ

6. The behaviour of the appellant on coming down from the third
Door was not normal because when PW6 the supervisor wanted to talk to
F the appellant, he side-tracked him and hurriedly went out of the main gate
of the apartment asking the supervisor to come outside to take to him.
This behaviour, to say the least is not normal because a supervisor would
not normally be treated in this manner by a subordinate security guard.
The testimony of PW6 and PW7 on this aspect of the case has again not
been discredited in any way and both of them are independent witnesses,
G who bed no reason to falsely depose against the appellant and so it is safe
to rely upon their testimony. The prosecution bas, thus, conclusively
establishea that at the· crucial time, the appellant bad gone to flat 3-A,
where the deceased was all alone, her mother PW3 having left the Oat for ~
. I
the temple earlier and that the deceased was found raped and murdered
H shortly thereafter. (55-E-G]

!
DHANANJOY v. STATEOFW.B. 41

7.1. From the prosecution evidence it stands established that during A
the investigation of the case, when the police searched the room where the
dead body of the deceased was lying, they recovered a broken chain and a
shirt button of cream colour with four holes from the bed room besides
the panty of the deceased from the living room which was tom and had
blood stains. [56·A, BJ
B
7.2. From the testimony of the senior Scientific Officer, it transpires
that the cream colour button, recovered from the place of occurrence was
from the shirt which had been recovered at the instance of the appellant
from his house after his arrest. He deposed that all the buttons stitched
on the shirt, except the third button from the top of the front verticle plate, C
were of light cream colour and stitched in the similar pattern with off·
white thread of three ply and z type twist, whereas the third button was of
white colour and stiched in a different pattern with milky white thread of
two ply and x type twist. The appellant appears to have stiched the third
button in lieu of the one which had fallen off probably during scume, at D
the site of occurrence. From the unchallenged testimony of PW27, it is
crystal clear that the third button stitched on the shirt examined by him
was different, distinct and separate from the other three buttons found on
the shirt and that the third button had been replaced and stitched in a
different manner. His examination also established that the button,
recovered from the place of occurrence and sent to him for examination E
tallied with and was identical to the remaining three buttons on the shirt
of the appellant. The evidence of the expert witness, therefore, clearly
points out to the conclusion that the button found from the place of
occurrence was the third button of the shirt of the appellant, which bad
failed off and was found on the scene of crime. This piece of circumstantial p
evidence is quite specific and is of a crucial nature and undoubtedly
connects the appellant with the crime. [56-H, 57-A·E]

8. The discovery of the broken chain from the place of occurrence
also connects the appellant with the crime. From the testimony of P.W.11
it appears that the broken chain recovered from the place of occurrence, G
bad been given by the witness to the appellant about a month prior to the
date of the incident. There was no cross-examination of this witness to
challenge this part of his testimony. Of course, the defence did suggest
during the cross-examination that such like chains are available in the
market but that suggestion cannot detract from the reliability of the H
T
42 ' SUPREME COURT REPORTS (1994) 1 S.C.R.

A prosecution evidence. The prosecution has successfully established that
PWll had given the neck chain, recovered from the place of occurrence on
5.3.1990 to the appellant about a month before the occurrence. This piece
of evidence establishes the presence of the appellant in the Oat of the
deceased on 5.3.1990. [57-EfGJ
B '
9. The circumstance ~f absconding was put to the appellant in his
statement under Section 3i3 Cr.P.C. but instead of giving a satisfactory
explanation, he came forwa~d with a plea of alibi. He stat~d that he left -
the Apartment to see a picture in a cinema hall after 2 p.m. and then
returned to Manorma Sch~ol and after collecting his belongings and -(
c purchasing some fruits left f~r his native place to participate in the sacred
thread ceremony of his broth~r. No evidence was produced by the appellant
'in support of the belated pl~ of alibi. There is no material on the record
to show that he went to any :cinema or participated in any sacred thread
ceremony of his brother or that even such a ceremony at all took place at
D his native village. Though it ~s not necessary for an accused to render an
explanation to prove his inno.cence and even if he renders a false explana-
tion, it cannot be used to support the prosecution case against him and
that the entire case must be p,roved by the prosecution itself but it is well
settled that a plea of alibi, if r~ised by an accused, is required to be proved
by him by cogent and satisfactory evidence so as to complet.ely exclude the
E possibility of the presence of the accused at the place of occurrence· at the
relevant time. The belated and vague plea of alibi of which there is no
whisper during the cross-exa111ination of any of the prosecution witnesses,
and which has not .been sought to be established by leading any evidence,
is only an after thought and '.a plea of despair. The abscondence of the
appellant is thus a material conclusively established by the prosecution
F
against him. [58-G-H, 59-A-D]

10. The recovery of the wrist watch has been established by the
prosecution through the evidence of PW29, PW24 and PW19. They have
given a consistent version and have deposed that after the arrest of the
G appellant, he made a disclosure statement during interrogation, which led
to the recovery of a ladies 'Richo' Wrist watch, with a golden metal band
from a rack in his house. The said watch, was seized by the police in the
presence of witnesses who have testified to the seizure and the sealing of the
wrist watch after its recovery at the spot. The prosecution has led evidence
H to show that the recovered watch had been sold to PW3 by HM W:itch
T
DHANANJOY v. STATE OF W.B. 43

Company on 21.2.1990 for Rs.350. The non-seizure of the cash memo by the A
investigating agency cannot discredit the testimony of PW18 or PW3 and
nothing has been brought on recol'd from which any doubt can be cast on
the testimony of PW18 regarding the sale of the watch to PW3. The tes-
I
timony of the prosecution witnesses relating to the disclosure statement of
the appellant and the seizure of the wrist watch pursuant thereto from his
house coupled with the testimony of PW18 and the identification of the
B
watch by its owner PW3 conclusively connects the appellant with the theft of
the watch on the date of occurrence from the flat where the ghastly occur-
rence took place. The absence of any explanation for possession of the writ
watch belonging to PW3 by the appellant is yet another circumstance which
goes against the appellant. [59-F-H, 60-A-E]
I
c
11. All the circumstances which have been conclusively established
are consistent only with the hypothesis of the guilt of the appellant and are
totally inconsistent with his innocence. Not only in the cross-examination of
various prosecution witnesses, but even during the arguments nothing has D
been pointed out as to why any of the witness for the prosecution should
have falsely implicated the appellant in such a heinous crime. None of the
witnesses had any motive to falsely implicate him. None had any enmity
with him. The witnesses produced by the prosecution have withstood the
test of cross-examination well and their c~dit-worthiness and reliability
has not been demolished in any manner. All the circumstances established E
by the prosecution, as discuss =d above are conclusive in nature and specific
in details. They are consistent only with the hypothesis of the guilt of the
appellant and totally inconsistent with his innocence. [60-G-ll, 61-A]

12. In recent years, the rising crime rate-particularly violent crime p
against women has made the criminal sentencing by the courts a subject
of concern. Today there are admitted disparities. Some criminals get very
harsh sentences while many receive grossly different sentence for a essen-
tially equivalent crime and a shockingly large number even go unpunished,
thereby encouraging the criminal and in the ultimate making justice suffer
by weakening the system's credibility. Of course, it is not possible to lay G
down any cut and dry formula relating to imposition of sentence but the
objed of sentencing should be to see that the crime does not go unpunished
and the victim of crime as also the society has the satisfaction that justice
has been done to it. In imposing sentences, in the absence of specific
legislation, Judges must consider variety of factors and after considering H
T
44 SUPREME COURT REPORTS [1994] 1 S.C.R.

A all those factors and taking an over-all view of the situation, impose
sentence which they consider to be an appropriate one. Aggravating factors
cannot be ignored and similarly mitigating circumstances have also to be
taken into consideration. [61-G-H, 62-A-B]

13. The measure of punishment in a given case must depend upon
B the atrocity of the crime; the condu«:t of the criminal and the defenceless
and unprotected state of the victim. Imposition of appropriate punishment
is the manner in which the courts respond to the society's cry for justice
against the criminals. Justice demands that courts should impose punish-
ment fitting to the crime so that the courts reflect public abhorrence of the
c crime.'The courts must not only keep in view the rights of the criminal but
also the rights of the victim of crime and the society at large while
considering imposition of appropriate punishment. [62-C-D]

Bachan Singh v. State of Punjab, 1980 Crl. Law Journal 636, referred
to.
D
14. In the instant case the savage nature of the crime has shocked our
judicial conscience. There are no extinuating or mitigating circumstances
whats over in the case. A real and abiding concern for the dignity of human
life is required to be kept in mind by the courts while considering the
E confirmation of the sentence of death but a cold blooded pre-planned brutal
murder, without any provocation, after committing rape on an innocent
and defenceless young girl of 18 years, by the security guard certainly makes
this case a "rare of the rareet" cases which calls for no punishment other
than the capital punishment. Accordingly the sentence of death imposed
upon the appellant for the offence under Section 302IPC is confirmed. The
F order of sentence imposed on appellant by the courts below for offences
under Sections 376 and 380 IPC are also confirmed alongwith the direc-
tions relating thereto as in the event of the execution of the appellant, those
sentences would only remain of academic interest. [62-G-H, 63-A-B]

G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
584of1992.

From the Judgment and Order dated 7.8.1992 of the Calcutta High
Court in Death Reference No. 3 of 1991.

H AK. Ganguli, S.C. Ghosh and AD. Sikri for the Appellant.
DHANANJOY v. STATEOFW.B. [DR.ANAND,J.) 45

~
D.N. Mukherjee, Dilip Sinha and J.R. Das for the Respondent. A
The Judgment of the Court was delivered by

' 1. DR. ANAND, J. Hetal Parekh a young 18 years old school-going
girl was raped and murdered on 5.3.1990 between 5.30 and 5.45 p.m. in her
flat No. 3-A, on the third floor of 'Anand Apartment'. The appellant was B
.. challanged and tried for rape and murder and also for an offence under
-Section 380 IPC, for committing theft of a wrist watch fr:om the saic! flat.
The learned Additional Sessions Judge found him guilty and convicted the
appellant, (i) for an offence under Section 302 IPC and sentenced him to
deatch, (ii) for an offence under Section 376 IPC and sentenced him to
imprisonment for life, and (iii) for the offence undeer Section 380 IPC, he c
w~s sentenced to undergo rigorous imprisonment for five years. The sub-
stantive sentences under Sections 376 and 380 IPC were ordered to run
concurrently but were to cease to have any effect, in case the sentence of
death for conviction of the appellant under Section 302 IPC was confirmed
by the High Court and the appellant was executed. Reference for confir- D
}- mation of the death sentence was accordingly made to the High Court. The
appellant also preferred an appeal against his conviction and sentence in
the I:Iigh Court. The criminal appeal filed by the appellant was dismissed
and the sentence of death was confirmed by the High Court. On special
leave being granted, the appellant, Dhananjoy Chatterjee @ Dhana, has
filed this appeal. E
2. According to the prosecution case, the appellant Dhananjoy was
one of the security guards deputed to guard the building 'Anand
Apartment' by MIS Security and Investigating Bureau of which Mr. Shyam
Karmakar PW21 was the proprietor. On 2.3.1990, Hetal deceased com-
plained to her mother Yashmoti Parekh PW3 that the appellant had been F
teasing her on her way to and back from the school and had proposed to
her on that day to accompany him to a cinema hall to watch a_ movie. She
had made complaints about the teasing by the appellant to her mother
previously also. Yashmoti PW3 told her husband Nagardas Parekh PW4
on 3.3.1990 about the behaviour of the appellant towards their daughter,
G
who in turn complained to Shyam Karmakar PW21 and requested him to
replace the appellant. At the asking of Shyam Karmakar PW21, who came
~ to meet Nagardas PW4 in his flat in that connection, PW4 gave a written
complaint also and the appellant was transferred and a transfer order
posting.' the appellant at 'Paras Apartment' was issued by PW21. Bijoy
:a
Thapa, security guard at Paras Apartment was posted in his place, at H
.,....,
(

46 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Anand Apartment. The transfer was to take effect from 5.3.1990.

3. As per their normal routine, Nagardas Parekh PW4 and his son
Bhawesh Parekh PW5, father and brother of the deceased respectively, left
for their place of business and college in the morning on 5.3.1990. Bhawesh
B PW5 returned to the flat at about 11.30 a.m. and after taking his meals, left
for his father's place of business as was his routine. The deceased returned
to her flat after taking her examination at about 1 p.m. Yashmoti PW3, the
mother of the deceased used to visit Laxmi Narayan Mandir between 5 and
5.30 p.m. daily. As usual, on the date of the occurrence also she left for
the Temple at about 5.20 p.m. Hetal, deceased was all alone in the flat at
C that time. The appellant, inspite of the order of transfer, did not report at
Paras Apartment'and instead performed his duties, as a security guard, at
Anand Apartment between 6 a.m. and 2 p.m. on 5.3.1990. Shortly after
Yashmoti PW3, the mother of the deceased left for the Temple, the
appellant met Dasarath Murmu PW7, another security guard who was at
D that time on duty at the building and told him that he was going to flat 3-A
for contacting his office over the telephone. The appellant used the lift to I

go to the sCJid flat. At about 5.45 p.m., Pratap Chandra Pali PW6, supervisor ---\
of the S~curity and Investigating Bureau, visited Anand Apartment and
enquired from PW7 whether Bijoy Thapa had performed his duty in place
of the appellant in the morning but was told by Dasarath PW7, that Bijoy
E Thapa had not come to that building and that the duties had been per-
formed by the appellant between 6 a.m. and 2 p.m. on that day. On enquiry
by the supervisor as to where the appellant was, PW7 told the supervisor
that at that particular time, the appellant had gone to flat No. 3-A with a
view to contact his office over the telephone. The supervisor Pratap
F Chandra PW6 as.ked Dasarath PW7 to call th appellant and since, he was
not able to contact him through the intercom, there being no response from
flat No. 3-A, he called out the name of the appellant, who appeared at the
balcony of fl~t No. 3~A and on being told that 'PW6, the supervisor had
come and wanted to see him, told him. that he would come down. The
appellant after a little while came down by the stairs and even though. the
G supervisor PW6 and Dasarath PW7 were waiting for him, he hurriedly went
passed them and on being asked,:by ;f>W6 that he wanted to talk to him,
told him to come outside the gate, and speak to him. The appellant on
inquiry by PW6 as to why he had not obeyed the transfer order told him
that due to some personal difficulty he could not report for duty at Paras
H Apartment. He was advised tO take charge at Paras Apartment without fail
DHANANJOY v. STATEOFW.B. [DR.ANAND,J.) 47

the next day. The appellant thereafter left. A

4. At about 6.05 p.m. Yashmoti PW3 returned from the Temple.
While going to her falt in the lift, she was told by Ramdhan Yadav PW8,
' the lift operator, that the appellant had gone to her flat in her absence to
make a telephone call to his office. She was annoyed on getting this B
information because of the complaint which the deceased had made to her
earlier. On reaching her flat, she rang the bell repeatedly but there was no
response and no body opened the door. She raised alarm which attracted
several of her neighbours. They also rang the bell and knocked at the door
but there was no response. Eventually, the lock of the door was broken
open by the neighbours, their servant and the liftman, and as she entered C
the flat along with some of her neighbours, she found the door of her bed
room open. Hetal deceased was lying on the floor. Her skirt and blouse
had been pulled up and her private parts and breasts were visible. There
were patches of blood near her head as well as on the floor. There were
blood stains on her hands and vagina also. Her wearing apparel was blood D
stained. There were some marks of violence and blood was found on her
face as well. There were blood marks on the 'Jhoola' lying in the room.
Her torn panty was found lying near the entrance of the door and the
deceased appeared to be unconscious at that time. Her mother, PW3, lifted
the deceased in her arms and rushed down through the lift with a view to
take her to the doctor. In the meantime, a doctor had been summoned by E
the neighbours who arrived and on examining the deceased in the lift itself,
where she was lying in the lap of her mother, pronounced her dead.
Information of the occurrence, was sent to the father of the deceased and
at about 7 p.m. Bhawesh PW5 returned. In the meantime, another doctor,
who had also been called, arrived and after examining the deceased cer- F
tified her as dead. The dead body of Hetal was taken back to the flat and
laid on her bed in her room and was covered by a sheet. At about 8.30
p.m. father of the deceased, Nagardas PW4 returned to the flat and on
being told of the murder of Hetal, he informed Bhawanipore Police Station
. at about 9.15 p.m. on the telephone. On receipt of the telephonic message, G
.. sub-inspector Gurupada Som PW28, the acting duty officer, rushed to the
place of occurrence along with some other police personnel and recorded
the FIR on the statement of Yashmoti Parekh PW3, the mother of the
deceased and commenced investigation. During the search of the room
where the deceased had been allegedly raped and murdered, blood stained
earth, a broken chain, a cream colour button, the torn panty of the H
48 SUPREME COURT REPORTS (1994) 1 S.C.R.

A deceased and some other articles were seized and sealed into a parcel aftet
preparing seizure memos. Statements of some witnesses were also
recorded.

5. Search was made for the appellant by the police at different places
•
during the night intervening 5th and 6th March 1990 but in vain. The
B appellant did not even visit his employers to collect his wages for the past
5 days. He did not report at 'Paras Apartment' either. Though he was also
doing night duty at another place, he did not report for duty there and did
--{
not collect his wages for four days service rendered with the other
employer either. He was not traceable. Some raids were conducted in the
C village of the appellant at Kuludihi, within the jurisdiction of Chatna Police
Station on different dates but ultimately it was only on 12.5.1990 that the
appellant came to be arrested. Pursuant to a disclosure statement made by
him under Section 27 of the Evidence Act, a 'Richo' wrist watch was
recovered. Appellant also led to the recovery of his' shirt and trouser
wrapped in a newspaper from his house pursuant to a disclosure statement.
D·
At the trial the appellant pleaded innocence and alleged false implication
'due to quarrel with PW4 over his transfer'. In his statement made at the
trial under Section 313 Cr.P.C., the appellant stated that after his duty
hours as the security guard at Anand Apartment on the date of the
occurrence he had gone to a cinema and then purchsed some fruits in
E connection with the sacred thread .ceremony of his younger brother and
left for his native place with the fruits to participate in the said ceremony.
He denied the recoveries allegedly made from him. He, however, led no
defence evidence.

F 6. There is no eye-witness of this occurrence. The entire case rests
OIJ. circumstantial evidence. Hetal Parekh, the unfortunate young school-
going girl of about 18 years of age,,had been subjected to rape before her
death and that the death was homicidal in nature stands amply established
'
by the testimony of Dr. Dipankar Guba PW20, who conducted the post-
mortem examination on the dead body. As many as 21 injuries were noticed •
G by Dr. Dipankar Guha on the deceased and since both the trial court and
the High Court have reproduced the injuries in extenso, we need not repeat
the same. The medical witness found that the hymen of the deceased >-
showed fresh tear at 4, 5, and 7 O'clock position with evidence of fresh
blood in the margins. He also found presence of blood stains on the vagina
H and matted pubic hair of the deceased. Blood was also noticed at nostril
DHANANJOY v. STATE OF W.B. [DR. ANAND, J:] 49

and face of the deceased. The hair from the scalp were also found ma,tted A
with blood. There was "fracture and dislocation of hyoid bone on its greater
cornu of left side" (Injury No. 21). In the opinion of the doctor, the
deceased had been subjected to rape before murder and that the death
was due to the fact of smoothering with strangulation and injuries were
anti-mortem and homicidal. Injury No. 21, as noticed above, was found B
sufficient to cause the death of the victim in the ordinary course of nature.
According to the report of the Senior Scientific Officer-cum-Assistant
Chemical Examiner, Forensic Science Laboratory, Government of West
Bengal, Ex. 36 semen was detected on the panty (under garment) and the
pubic hair of the deceased. The presence of blood stains, marks of violence
on the face of the deceased and the state of her clothes indicated that the C
victim had offered resistence but was helpless. There thus, remains no
doubt that the deceased had been subjected to rape before her murder.
Medical evidence is clear and cogent and Mr. Ganguli, the learned Senior
Advocate, appearing for the appellant, did not questio,i the same either.
We therefore, have to address ourselves to determine whether or not the D
,~ ~ appellant was the assailant who had raped and murdered the defenceless
young girl.

7. It is settled law that in a case based on circumstantial evidence,
the circumstances from which the conclusion of guilt is to be drawn have
not only to be fully established but also that all the circumstances so E
established but also that ~ the circumstances so established should be of
a conclusive nature and consistent only with the hypothesis of the guilt of
the accused. Those circumstances should not be capable of being explained
by any other hypothesis, except the guilt of the accused and the chain of
the evidence must be so complete as not to leave any reasonable ground F
for the belief consistent with the innocence of the accused. It needs no
reminder that legally established circumstances and not merely indignition
of the court can form the basis of conviction and the more serious the
crime, the greater should be the care taken to scrutinise the evidence lest
suspicion takes the place of proof. Since, the instant case is based on
circumstantial evidence and the sentence awarded by the trial court and G
confirmed by the High Court is that of death, we have to consider the
circumstances carefully bearing the principles noticed above in mind.

8. Before, we proceed to consider various circumstances, we would
like to deal with one finding of the High Court relating to the first H
50 SUPREME COURT REPORTS (1994) 1 S.C.R.

A information report. The High Court found that after the telephonic mes-
sage had been sent to the Police Station, and the investigating officer after
making an entry in the G.D. rushed to the scene of occurrence to record
the statement of Yashmoti PW3, that statement of PW3 could not be
treated as a first information report and that the "telephonic message as
B recorded in the G.D." was the first information report and the statement.
of PW3 was only a statement recorded during the investigation of the case
and not the FIR. In the words of the High Court : f

"We are therefore, of the opinion that the statement of
PW3 recorded by the Police after the investigation had
c already commenced could not be treated as the· first
information report."

9. We are unable to agree with the opinion of the High Court. The
CI) ptic telephonic message received at the Police Station from Nagardas
D PW4 had only made the police agency to rush to the place of occurrence
. and record the statement of Yashmoti PW3 and thereafter commence the
investigation as was admitted by the investigating officer in his testimony
which testimony was not challenged during the cross-examination of the
investigating officer. The High Court failed to notice that the vague and
indefinite information given on the telephone which made the investigating
E agency only to rush to the scene of occurrence could not be treated as a
first information report under Section 154 of the Cr.P.C. The unchallenged.
statement of the investigating officer that he commenced the investigation
only after recording the statement of PW3 Yashmoti unmistakably shows
that it was that statement which !ilone could be treated as the first infor- .
F mation report. The High Court fell in error in observing that the statement
of PW3 Yashmoti was recorded "after the investigation had already com-
menced". There is no material on the record for the above opinion of the .
High Court. The cryptic telephonic message given to the police by Nagar-
das PW4 was only with the object of informing the police so that it could
reach the spot. The investigation in the case only started after the statement
G of PW3 Yashmoti was recorded. Though initially Mr. Ganguli did try to
support the finding of the High Court but in the face. of the evidence on
the record and more particlllarly in the absence_ of any challenge to the
testimony of the investigating officer, in fairness:to. Mr. Ganguli, we must
record that he rightly did not pursue that ai'.gatnent any further. We,
H therefore, find ourselves unable t~ ~~e · with the opinion of the High
;~ ~: ...
DHANANJOY v.STAIBOFW.B.[DR.ANAND,J.) 51

Court and hold that the statement of Y ashm.oti PW3, recorded by the A
investigating officer PW28, was rightly treated as FIR in this case by the
prosecution and the trial court.

10. We shall now deal with and consider various circumstances relied
upon by the prosecution.which have.been accepted as conclusively estab-
lished both by the trial court and the High Court to connect the appellant B
with the crime.

11. Motive : In a case based on circumstantial evidence, the existence
of motive assumes significance though the absence of motive docs not
necessarily discredit the prosecution case, if the case stands otherwise C
established by other conclusive cireumstanees and the chain~ circumstan-
tial evidence is so complete f1d is consistent only with the h)ipothesis of
the guilt of the accused and inconsistent with the hypothesis of his in-
nocence. In this case, there is ample evidence on the record to show that
the appellant had a motive to commit the alleged crime and we are unable D
to agree with Mr. Ganguli that the motive for the appellant to commit the
murder of the deceased has not been established.

llA. The deceased was being teased by the appellant when she used
to go to or caine back from the schooi. She had brought it to the notice of
her mother PW3 on a number of occasions, the latest in the series being E
on 2.3.199(). Yashm.oti PW3 informed her husband Nagardas PW4 about
the complaints. From the testimony of Nagardas PW4, it transpires that
after he came to know about the misbehaviour of the appellant from his
wife PW3 on 2.3.1990, he called some other dwellers of the Apartment to
apprise them of the same. Mahendra Chauhatia PW13 and Barish Vak-
haria PW14 have deposed that they had been called by Nagardas PW4 who F
reported to them'that the appellant had been teasing his daughter and that
PW4 had suggested that the appellant should be replaced by another
security guard. They (PW13 and PW14) both agreed. The testimony of
PW13 and PW14 has remained totally unchallenged in cross-examination.
After consulting PW13 and PW14, Nagardas PW4 asked Shyamal Kar- G
makar PW21, the employer of the appellant, to meet him and according to
the statement of PW21 Karmakar he came to the flat of Nagardas PW4 on
.. 3.3.1990, where he Was informed about the teasing of the daughter of PW4
by the appellant. PW21 deposed that Nagardas PW4 told him to replace
the appellant by antother security guard and even handed over a written
complaint Ex.4 to him. The defence has not challenged this part of the H
52 SUPREME COURT REPORTS (1994] 1 S.C.R.

A testimony of PW21 during his cross-examination at all. PW21 after receiv-
ing the complaint Ex.4 against the appellant from PW4, made an order of
transfer of the appellant from 'Anand Apartment' to 'Paras Apartment'
and deputed Bijoy Thapa another security guard in place of the appellant-
with effect from 5.3.1990. The order of transfer was handed over to Riazul
Haq PW9, who delivered it to the appellant. The copy of the transfer order
B . Ex.23 was handed over by Riazul Haq PW9 to the appellant on 4.3.1990 •
while the appellant was on. duty at the 'Anand Apartment'. This part of the -·'
testimony of PW9 has not been assailed during his cross-examination. From
the prosecution evidence, the teasing of the deceased by the appellant, his
invitation to her to accompany him to watch a movie on 2.3.1990 and the
C order or his transfer from 'Anand Apartment' made by PW21 on the
complaint of the deceased, through her father PW4, stand amply estab-
lished on the record. It is pertinent to note that there has been no challenge
worth the name to this part of the case of the prosecution during the
cross-examination of various witnesses produced by the prosecution in its
support. Mr. Ganguli however, submitted before us that the delay in the
D · seizure of complaint Ex. 4 and the transfer order, on 29.6.1990 were
indicative of the fact that both the .documents had come into existence
subsequently as an after thought. We do not find any force in this submis-
sion. PW4 who gave a written complaint to PW21 and PW9 who delivered
the transfer order issued by PW21 to the appellant were not challenged in
E the cross-examination about the same. Even the investigating officer was
not asked for an explanation as to why the documents had been seized so
late. In any event the seizure of the. documents on 29.6.1990, after the
appellant had been arrested only a couple of weeks earlier, would not go
to show that the documents were either fabricated or were an after thought.
In this connection, it is also relevant to notice that a positive suggestion
F was made by the defence to PW4 during his cross-examination that the
appellant had quarelled with him 'over his transfer from Aqand Apartment'
and on account of that quarrel, the appellant had been "falsely implicated".
Of course, PW4 denied the suggestion but defence suggestion does not
militate against the prosecution case regarding the annoyance of the ap-
G pellant on that score. We also find corroboration available from the state-
ment of Pratap Chandra Pali PW6, the supervisor of Security and
Investigating Bureau, who had visited 'Anand Apartment' at about 5.45
p.m. on 5.3.1990 and enquired from the guard on duty as to how the
appellant had reported for duty at Anand Apartment, when he stood
transferred to Par~~· Apartment. Moreover, when PW6 demanded an ex-
H pla~atiqn from<the.appellant on 5.3.1990 as to why he had not reported for
DHANANJOY v. STATE OF W.B. (DR. ANAND, J.] 53

duty at Paras Apartment, the appellant is alleged to have told him that it A
was on account of 'certain personal inconvenience' that he could not so
join on that date. PW6 was not challenged with regard to his testimony as
regards the transfer of the appellant. We also fuid no substance in the
submission of Mr. Ganguli that in a private organisation, written transfer
orders are not given and that the written transfer order in this case is a
created piece of evidence. There is no hard and fast rule regading giving B
of oral or written transfer orders in private organisations and in any event
neither PW21 nor PW9 or PW6 were questioned on this aspect. Once
service of the transfer order by PW9 is not assailed during the cross-ex-
amination of the witness, the above argument of Mr. Ganguli hardly
deserves any serious consideration. The evidence on the record has, thus, C
clearly and cogently established the improper attitude of the appellant
towards the young girl. Hetal, and his teasing her often and seeking her
company to go to a movie. The appellant, therefore, had certainly improper
designs so far as the deceased is concerned. His transfer from 'Anand
Apartment' on the allegation that he had teased the deceased, therefore,
provided sufficient motive for him not only to satisfy his lust and teach a D
lesson to the deceased girl for spunning his offer but also as a measure of
retaliation for being reported to his employer and being transferred from
Anand Apartment to Paras Apartment on the basis of the said complaint.
The transfer of the appellant on grounds of his improper behaviour with
the deceased ·was an aspersion0"?n his character and that appears to have
provided him the immediate mOtive for committing the crime in retaliation E
and even may be to remove the evidence of committing rape on the
deceased. We are, therefore, of the opinion that the prosecution has
successfully established the existence of motive on the part of the appellant
to commit the crime.
F
12. Evidence relating to the appellant's visit to Flat 3-A: According
to the prosecution case PW3 Yashmoti, the mother of the unfortunate
deceased, left for the Temple on 5.3.1990 at about 5.20 p.m. This was her
daily routine and the appellant, who was a security guard at the apartment
must be deemed to be aware of this routine practice of the mother and
since the deceased had returned to her flat at about 1.00 p.m. after taking G
the examination, when the appellant on his own admission, besides the
testimony of PW7, was on duty, he knew that after the departure of PW3,
the deceased would be alone in her flat, her father and brother having left
earlier. He therefore utilised that opportunity to go to Flat No. 3-A, during
the absence of PW3 to commit the crime. The liftman Ramdhan Y adav H
54 SUPREME COURT REPORTS [1994) 1 $;C.R.

A PW8 and Dasarath PW7, the other security guard on duty have testified
about Yashmoti PW3 leaving the apartment at about 5.20 p.m. on 5.3.1990
for the Temple. Further according to the testimony of PW7, after the
departure _of PW3, the appellant -went to Flat No. 3-A and had told
Dasarath PW7 that he was going to the said flat for contacting his office
B over the telephone and thereafter the appellant went upstairs by the lift.
At about 5.45 p.m., PW6 the supervisor on reaching 'Anand Apartment'
was told by PW7, on his enquiry that the appellant had gone to Flat No.
3-A to contact the office over the telephone and that he had not obeyed
the transfer order. At the direction of PW6, the guard on duty PW7 tried
C to contact the appellant through the intercom but since there was no
response from Flat 3-A, he called out the name of the appellant, who
appeared at the balcony in front of Flat 3-A and on being informed that
PW6 wanted to meet him, told PW7 that he was coming down. He then
c<l!De down through the stairs. On reaching the ground floor he attemp~ed
to side track both PW6 and PW7 and hurriedly went past them. When
D PW6, the supervisor, demanded an explanation from the appellant as to
why he had not joined duty at Paras Apartment and why he was still at
Anand Apartment, the appellant told him that on account of some personal
inconvenience he had not been able to comply with the transfer order.
Though, Ramdhan PW8 who took the appellant to the third floor by the
E lift, tilrned hostile at the trial, we find that he did not go back-on the entire
version as earlier given by him. The testimony of PW8 need not, therefore,
be ignored totally and the court can scrutinise his testimony and accept
that portion of the same which receives corroboration from other evidence
on record. The testimony of a hostile witness is not liable to be rejected
without even scrutinising it, although great care and caution is required to
F
analyse the same before accepting any part of it as is othei-wise found
reliable and consistent with the prosecution case. We have carefully con-
sidered the statement of PW8 and fmd that he does afford corroboration
regarding the presence of the· appellant at the time of visit of PW6 to
Anand Apartment and his coming down the stairs from the third floor on
G being called by PW7, the security guard on duty. On the return of Yashmoti
PW3, from the Temple, PW8 the liftman told her that the appellant had
gone to her flat to make a telephone call. Despite lengthy cross- examina-
tion, the testimony of PW6 the supervisor and PW7 on this aspect of the
case has remained unshattered. Their ·credibility has not been impeached
H at all. The submission of Mr. Ganguli that there was no need for the
DHANANJOY v. STATE OFW.B. [DR. ANAND, J.) 55

appellant to have disclosed to PW7 that he was going to flat 3-A, if the A
appellant was going to commit a crime, has not impressed us because in
the face of the order of tansfer of the appellant from Anand Apartment to
Paras Apartment, he had to give some explanation to the guard on duty
for going to the third floor of the building. He could not have gone to the
third floor unnoticed. Even if it be assumed that PW7 was not aware of
the transfer order, the appellant's duty was already over and without giving B
some explanation to PW7, the. guard on duty, he could not have gone to
flat 3-A of Anand Apartment. There was, therefore, nothing improbable
~ for the appellant to have told the guard on duty that he was going to flat
3-A and to have coined a false excuse that he was going to do so with a
view to contact the office on telephone. Moreover, we cannot lose sight of C
the fact that human conduct varies from person to person and different
people may react to a situation differently. Mr. Ganguli also argued that
since there were no visible sign of preturbedness on the appellant when he
came down from the third floor and met PW6, it would show that in all
probabilities the appellant had nothing to do with the crime. The argument D
is a mere surmise. Not only no question was asked of any witness as to
what was the state of mind or facial expression or behaviour of the
appellant when he came down from the third floor, the appellant would
have in any case taken pains to conceal his real expressions, lest any
suspicion should arise that the appellant ha<l ·done something wrong,
because none at that point of time, had the knowledge about the commis- E
sion of crime. The behaviour of the appellant on coming down from the
third floor was not normal because when PW6, the supe~or wanted to
talk to the appellant, he side-tracked him and hurriedly went out of the ·
main gate of the apartment asking the supervisor to come outside to talk
to him. This behaviour, to say the least is not normal because a supervisor F
would not nonn.ally be treated in this manner by a subordinate security
guard. The testimony of PW6 and PW7 on this aspect of the case has again
not been discredited in any way and both of them are independent wit-
nesses, who had no reason to falsely depose against the appellant and we
find it safe to rely upon their testimony. The prosecution has, thus, con-
clusively established that at the crucial time, the appellant had gone to flat G
3-A, where the deceased was all alone, her mother PW3 having left the flat
--<. for the Temple earlier and that the deceased was found raped and mur-
dered shortly thereafter.

13. Recovery of a cream colour button and chain from flat 3-A on H
56 SUPREME COURT REPORTS (1994) 1 S.C.R.

A 5.3.1990 and shirt and pant of the appellant from his house on 12.5.1990:
From the prosecution evidence it stands established that durmg the inves-
tigation of the case, when the police searched the room where the dead
body of Hetal was lying, they recovered a broken chain and a shirt button
of cream colour with four holes from the bed room of PW3 and .PW4
besides the panty of the deceased from the living room which was tom and
B had blood stains. PW28, the investigation officer besides Bhawesh Parekh
PW5 and Rajiv Bokharia PWlO have deposed to the seizure of these
[
articles from the place of occurrence on 5.3.1990. All the articles were
· secured in a parcel and sealed. According to PW7, the appellant was
wearing a cream coloured shirt and grey trousers when he went to flat
c No.3-A on the date of occurrence. The appellant, as already noticed, was
arrested on 12.5.1990. Pursuant to a disclosure statement made by him, he
brought out a packet, wrapped in a newspaper, containing one shirt and a
pant which were seized vide seizure list Ex. 16. The recovery of the wearing
apparel on the disclosure statement of the appellant has been established
D by the testimony of Pranab Chatterjee and Debulal Mukherjee, who have
corroborated the evidence of the investigating officer fully. Though, the
entire statement made by the appellant before the police is inadmissible in
evidence being hit hy sections 25 and 26 of the Evidence Act but that part
of his statement which led to the discovery of the shirt and the pant is
clearly admissible under Section 27 of the Evidence Act. We disregard the
E inadmissible part of the statement and take note only of that part of his
statement which distinctly relates to the discovery of the articles pursuant
to the disclos.ure statement made by the appellant as it is only so much of
the statement made by a person accused of an offence while in custody of
a police officer. Whether it is confessional or not, as relates distinctly to
F the fact discovered which is capable of being proved and admitted into
evidence. The discovery of the fact in this connection includes the discovery
of an object found, the place from which it is produced and the knowledge
of the accused as to its existence.

13.A The cream colour button recovered from the place of occur-
G rence along with the shirt seized on the disclosure statement of .the appel-
iant and seized from his house on 12.5.1990 alongwith the other seized
articles were sent by the investigating agency to the Forensic Science
Laboratory. From the testimony of Pratha Sinha PW27, the senior Scien-
)-
tific Officer, attached to the Physics Division of the Forensic Science
H
DHANANJOY v. STATE OF W.B. [DR. ANAND, J.) 57

Laboratory, Government of West Bengal, it transpires that the cream A
colour button, recovered from the place of occurrence, was from the shirt
which had been recovered at the instance of the appellant from his house
after his arrest. PW27 deposed that all the buttons stitched on the shirt,
except the third button from the top of the front verticle plate, were of
light cream colour and stitched in the similar pattern with off - white thread B
of three ply and Z type twist, whereas the third button was of white colour
and stitched in a different pattern with milky white thread of two ply and
X type twist. The appellant appears to have stitched the third button in
lieu of the one which had fallen off probably during scuffle, at the site of
occurrence. From the unchallenged testimony of PW27, it is crystal clear C
that the third button stitched on the shirt eumined by him was different,
distinct and separate from the other three buttons found on the shirt and
that the third button had been replaced and stitched in a different manner.
His examination also established that the button, recovered from the place
of occurrence and sent to him for examination, tallied with and was
identical to the remaining, three buttons on the shirt of the appellant. The D
evidence of the expert witness, therefore, clearly points out to the con-
clusion that the button found from the place of occurrence was the third
button of the shirt of the appellant, which had fallen off and was found on
the scene of crime. This piece of circumstantial evidence is quite specific
and is of a crucial nature and undoubtedly connects the appellant with the E
crime.

13B. The discovery of the broken chain from the place of occurrence
also connects the appellant with the crime. From the testimony of Gauran-
ga Chandra PWll, it appears that the broken chain recovered from the
place of occurrence, had been given by the witness to the appellant about F
a month prior to the date of the incident. There was no cross-examination
of this witness to challenge this part of his testimony. Of course, the
defence did suggest during the cross-examination that such like chains are
available in the market but that suggestion cannot detract from the
reliability of the prosecution evidence. We agree with the finding of the G
High Court that the prosecution has successfully established that Gauranga
PWll had given the neck chain, recovered from the place of occurrence
on 5.3.1990, to the appellant about a month before the occurrence. This
piece of evidence establishes the presence of the appellant in flat 3-A on
H
-y

58 SUPREME COURT REPORTS (1994] 1 S.C.R.

A 5.3.1990.

14. Abscondig: We are conscious of the fact that abscondence by
itseH is not a circumstance .which may lead to the only conclusion consi.>tent
with the guilt of the accussed because it is not unknown that innocent
B . persons, on being falsel~ implicated, may abscond to save themselves but
abscondence of an accused after the occurrence is certainly a circumstance
which warrants consideration and careful scrutiny. The evidence of PW6,
the supervisor, and of the security guard PW7 establishes beyond a
reasonable doubt that the appellant had left Anand Apartment at about 6
C p.m. and was not seen t,hereafter. The evidence on the record shows (see
the evidence of PWs 3, 4, 6 and 7) that the appellant used to live in the
generator room at 'Anand Apartment'. In the transfer order he had been
asked to remove his belongings from the generator room. The investigating
. officer PW28, has clearly deposed that he searched for the appellant but
could not trace him during the night of 5.3.1990 and 6.3.1990. From the
D testimony of PW21, the employer of the appellant it transpires that the
appellant did not report for duty at 'Paras Apartment' or at 'Anand
. Apartment' after he left the 'Anand· Apartment' at about 6 p.m. on
5.3.1990. The appellant did not apply for any leave nor did he send .any
letter of resignation. AniI Kumar sub-inspector PW25, had made search
E for the appellant under orders of the Assistant Commissioner of the
Detective Department but could not trace him. Raids were even made in
the village of the appellant to apprehend the appellant but in vain till
12.5.1990. The evidence of PW25, PW28 and PW29 has not been a~ailed
during the cross-examination. Their testimony is corroborated by
F documentary evidence including Ex. 29 and we have no hesitation in relying
upon their restimony the appellant absconded soon after the occurence.
No body had admittedly by named him as an accused at 6 p.m. on 5.3.1990,
because even the FIR came to be recorded much .later at about 9.15 p.m.
Why did the appellant disappear? The appellant has offered no explana- ·
tion. No challenge has been· made. to the testimony of the investigating
G officers either when they testified that they unsuccessfully searched· for the.
appellant from 5th to 8th March 1990 at different places or conducted raids
at his village to apprehend him. The circumstance of absconding was put
to the appellant~•. his statement under Section 313 Cr.P.C. but instead of >-
giving a satisfactory explanation, he came forward with a plea of alibi. He
H stated that he left Anand Apartment to see a picture in a cinema hall after
2 p.m. and then returned to Manorma School and after collecting his
DHANANJOY v. STATE OF W.B. [DR. ANAND, J.) 59

belongings and purchasing some fruits left for his native place to par- A
ticipate in the sacred thread ceremony of his brother. No evidence was
produced by the appellant in support of this belated plea of alibi. There is
no material on the record to show that he went to any cinema or par-
ticipated in any sacred thread ceremony of his brother or that even such a
ceremony at all took place at his native village. Though it is not necessary B
for an accused to render an explanation to prove his innocence and even
if he renders a false explanation, it cannot be used to support the prosecu-
tion case against him and that the entire case must be proved by the
prosecution itself but it is well settled that a plea of alib~ if raised, by an
accused is required to be proved by him by cogent and satisfactory
evidence so as to completely exclude th~ possibility of the presence of the C
accused at the place of occurrence at the relevant time. The belated and
vague plea of alibi of which we find no whisper during the cross-examina-
tion of any of the prosecution witnesses, and which has not been sought to
be established by leading any evidence either is only an after thought and
a plea of despair. The abscondence of the appellant is thus a material D
circumstance which has been satisfactorily and conclusively established by
t the prosecution against the appellant.

15. Recovery of the wrist watch Ex. 18 from the house of the appellant:
According to the prosecution case, the appellant led to the recovery of a
'Richo' wrist watch pursuant to a disclosure statement made by him under E
Section 27 of the Evidence Act soon after he was arrested on 12.5.1990
during his interrogation in presence of the witnesses. Wrist watch
recovered from the house of the appellant pursuant. to his disclosure
statement, according to the prosecution, had been stolen from flat 3-A on
the date of the occurrence and belonged to PW3, the mother of the F
deceased. The recovery of the wrist watch has been established by the
prosecution, through the evidence of PW29, PW24 and PW19. They have
given a consistent version and have deposed that after the appellant was
found hiding behind a stock of straw in his uncle's house and was arrested,
he made a disclosure statement, during interrogation, and led to the
recovery of a ladies 'Richo' wrist watch, with a golden metal band from a G
rack in his house. The said watch, marked material Ex. 18, was seized by
the police vide seizure memo Ex. 16 in presence of the witnesses who have
testified to the seizure and the sealing of the wrist watch after its recovery
at the spot. The prosecution has led evidence to show that the recovered
watch Ex. 18 had been sold to PW3 by HM Watch Company on 21.2.1990 H
T
60 SUPREME COURT REPORTS [1994] 1 S.C.R.

A for Rs. 350. Mohd. Fakruddin PW18, the sales man of the watch company
proved the guarantee card Ex. 15 relating to the said wrist watch and stated
that the wrist watch Ex. 18 had been sold from their shop. The factum of
the theft of the watch from the almiraha had come to the notice of PW3
during search on 6.3.1990 after the occurrence and the police was imme-
r
diately apprised of the 1>ame in writing. Even though the communication to
B the police may be inadmissible in evidence, being hit by Section 162
Cr.P.C., there was no challenge to the testimony of PW3 that her 'Richo'
wrist watch had been stolen on the date of the occurrence and that material
object Ex. 18 was the same stolen wrist watch which had been recovered

c
at the instance of the appellant from his house. We do not find any
substance in the criticism levelled by Mr. Ganguli, to the effect that the
1
absence of a cash memo or the cash register rendered the evidence of
Fakruddin PW18 or PW3 doubtful. We have carefully perused the tes-
timony of PW18 and do not find any blemish in the same. The non-seizure
of the cash memo by the investigating agency cannot discredit the testimony
of PW18 or PW3 and nothing has been brought to our notice from which
D
any doubt can be cast on the testimony of PW18 regarding the sale of the
watch to PW3. The testimony of the prosecution witnesses relating to the
disclosure statement of the appellant and the seizure of the wrist watch
-\
pursuant thereto from his house coupled with the testimony of PW18 0
Faruddin and the identification of the watch by PW3 conclusively connects 4,.~"
E the appellant with the theft of the watch on the date of occurrence from
the flat where the ghastly occurrence took place. The absence of any
explanation, for possession of the wrist watch belongi~g to PW3, by the
appellant is the circumstance which goes against the appeHant.

16. All the circumstances referred to above and relied upon by the ·~
F
prosecution have been conclusively established by the prosecution. They
are specific and of a clinching nature and all of them irresistibly lead to
conclusion that the appellant alone was guilty of committing rape of Hetal
and s11bsequently murdering her. All the circumstances which have been
conclusively established are consistent only with the hypothesis of the guilt
G of the appellant and are totally inconsistent with. his innocence. Not only
in the cross-examination of various prosecution witnesses, but even during
the arguments, nothing has been pointed. out as to why any of the witness
for the prosecution should have falsely implicated the appellant in such a ?-
heinous crime. None of the witnesses had any motive to falsely implicate
H 'him. None had any enmity with him. The witnesses produced by the
,-
DHANANJOY v. STATE OFW.B. (DR. ANAND, J.) 61

prosecution have withstood the test of cross-examination well and their A
creditworthiness and reliability has not been demolished in any manner.

- All the circumstances established by the prosecution, as discussed above,
are conclusive. in nature and specific in details. They' are consistent only
with the hypothesis of the guilt of the appellant and totally inconsistent with
his innocence. We are, therefore, in complete agreement with the trial B
court and the High Court that the prosecution had established the guilt of
the appellant beyond a reasonable doubt and we, therefore, uphold his
conviction for the offences under Sections 302. 376 and 380 IPC.

17. This now brings us to the question of sentence. The trial court
awarded the sentence of death and the High Court confirmed the imposi- C
tion of capital punishment for the offence under Section 302 IPC for the
murder of Hetal Parekh. Learned counsel submitted that appellant was a
married man of 27 years of age and there were no special reasons to award
the sentence of death on him. Learned counsel submitted that keeping in
view the legislative policy discernable from Section 235 (2) read with D
Section 354(3) Cr.P.C., the Court may make the choice of not imposing the
extreme penalty of death on the appellant and give him a chance to bec0me
a reformed member of the society in keeping with the concern for the
dignity of human life. Learned counsel for the State has on the other hand
canvassed for confirmation of the sentence of death so that it serves as a
deterrent to similar depraved minds. According to the learned State coun- E
sel there were no mitigating circumstances, and the case was undoubtedly
'rarest of the rare' cases where the sentence of death alone would meet the
ends of justice.

18. We have given our anxious consideration to the question of F
sentence, keeping in view the changed legislative policy which is patent
from Section 334(3) Cr.P.C. We have also considered the observations of
this Court in Bachan Singh's case. 1980 Crl. Law Journal 636.

19. In recent years, the rising crime rate-particularly violent crime
against women has made the criminal sentencing by the courts a subject of G
concern. Today there are admitted disparities. Some criminals get very
harsh sentences while many receive grossly different sentence for an essen-
tially equivalent crime and a shockingly large number even go unpunished,
thereby encouraging the criminal and in the ultimate making justice suffer
by weakening the system's credibility. Of course, it is not possible to lay H
62 SUPREME COURT REPORTS [1994] 1 S.C.R.

A down any cut and dry formula relating to imposition of sentence but the
object of sentencing should be to see that the crime does not go un-
punished and the victim of crime as also the society has the satisfaction
that justice has been done to it. In imposing sentences, in the absence of
specific legislation. Judges must consider variety of factors and after con-
sidering all those factors and talcing an over-all view of the situation,
B impose sentence which they consider to be an appropriate one. Aggravat-
ing factors cannot be ignored and similarly mitigating circumstances have
also to be talcen into consideration.

20. In our opinion, the measure of punishment in a given case must
C depend upon the atrocity of the crime; the conduct of the criminal and the
defenceless and unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to the society's cry
for justice against .the criminals. Justice demands that courts should impose
punishment fitting to the crime so that the courts reflect public abhorrence
D of the crime. The courts must not only keep in view the rights of the
criminal but also the rights of the victim of crime and the society at large
while considering imposition of appropriate punishment.

21. The sordid episode of the security guard, whose sacred duty was
to ensure the protection and welfare of the inhabitants of the flats in the
E apartments, should have subjected the deceased a resident of one of the
flats, to gratify his lust and murder her in retaliation for his transfer on her
complaint, malces the crime even more heinous. Keeping in view the
medical evidence and the state in which the body of the deceased was
found, it is obvious that a most heinous type or barbaric type and murder
F was committed on a helpless and defenceless school-going girl of 18 years.
If the security guards behave in this manner, who will guard the guards?
The faith of the society by such a barbaric act of the guard, gets totally
shaken and its cry for justice becomes loud and clear. The offence was not
only inhuman, and barbaric but it was a totally ruthless crime of rape
followed by cold blooded murder and an affront to the human dignity of
G the society. The savage nature of the crime has shocked our judicial
conscience. There are no extenuating or mitigating circumstances what-
soever in the case. We agree that a real and abiding concern for the dignity
of human life is required to be kept in mind by the courts while considering
the confirmation of the sentence of death but a cold blooded pre-planned
H brutal murder, without any provocation, after committing rape on an
DHANANJOY v. STATE OF W.B. [DR. ANAND, J.] 63

innocent and defenceless young girl of 18 years, by the security guard A
--c
I
certainly makes this case a "rare of the rarest" cases which calls for no
punishment other then the capital punishment and we accordingly confirm
the sentence of death imposed upon the appellant for the offence under
Section 302 IPC. The order of sentence imposed on the appellant by the
courts below for offences under Sections 376 and 380 JPC are also con-
firmed alongwith the directions relating thereto as in ·the event of the B
execution of the appellant, those sentences would only remain of academic
interest. This appeal fails and is hereby dismissed.

G.N. Appeal failed.