Holding

The conviction is set aside because the circumstantial evidence does not meet the requirement of being wholly inconsistent with the accused’s innocence.

Summary

KanHai Mishra was convicted by the trial court and the Patna High Court for the rape and murder of Rita Kumari, based solely on six alleged circumstantial facts. The Supreme Court examined whether those circumstances satisfied the legal test that circumstantial evidence must be wholly inconsistent with the accused's innocence and point exclusively to guilt. It found that only the first circumstance – the appellant’s visit to the victim’s house and his proposal to go to the orchard – was proved, and that this alone could not exclude the possibility of innocence. Other alleged facts, such as the appellant fleeing, absconding, and being seen with the victim, were either contradicted, not corroborated, or not put to the accused under Section 313 CrPC, and key witnesses were not examined. Consequently, the Court held that the prosecution failed to meet the stringent standard for conviction on circumstantial evidence and set aside the death sentence, acquitting the appellant. The appeal was allowed, and the conviction and sentence were vacated.

Issues considered

The adequacy of circumstantial evidence to sustain convictions under Sections 302 and 376 IPC.
Whether the six alleged circumstances proved against the appellant are wholly inconsistent with his innocence.
Whether evidence of the appellant’s alleged absconding and fleeing can be used when not put to him under Section 313 CrPC.
Effect of delay in recording the FIR and suppression of material on the reliability of the prosecution case.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 376

Subjects

circumstantial evidencebenefit of doubtrapemurderIPC 302IPC 376criminal jurisprudencedelay in FIRsuppression of evidencenon-examination of witness

Judgment

A KANHAI MISHRA @ KANHAIYA MISAR
v.
STATEOFBIHAR

FEBRUARY27, 2001

B [K.T. THOMAS, RP. SETHI AND B.N. AGRAWAL, JJ.]

Penal Code, Sections 302 and 376-Appellant allegedly raped and
murdered deceased after taking her to an orchard-Fard-beyan was recorded
after 5 hours-No direct ev.idence available-High Court upheld death sen-
c tence passed by Trial Court:-On appeal Held, circumstantial evidence should
be wholly inconsistent with the innocence of the accused and consistent with
his guilt to attract conviction-Court should endeavour to find out whether the
accused committed the crime and circumstances form a complete chain-
Inconsistencies, contradictions and suppression present in statements of 1.0.,
informant and other witnesses-Material lvitnesses who could have given
D direct evidence were not examined-Undue delay in lodging FI.R. gave
enough time for deliberation:-Only one circumstance that deceased and
appellant left together was proved, which cannot be said to be inconsistent
with his innocence-However, such a ghastly crime har to go unpunished
because of /aches on the part of prosecution in proving the circumstantial
E evidence-Conviction converted into acquittal.

The appellant allegedly had enticed the deceased and murder her
after committing rape. According to the prosecution case, he took the
deceased to an orchard and after about an hour some co-villagers in·
formed P.W. 3, her father, that she was lying dead over there. The police
F was informed and fard-beyan was recorded after five hours. 10 witnesses
were examined to prove the circumstances against the appellant as there
was no direct evidence. Trial Court and the High Court enumerated six
circumstances against the appellant (1) appellant had come to the house
of the deceased and taken her along with him (2) they both left together
G (3) they were seen going towards the orchard (4) they were seen plucking
flowers (5) appellant was seen fleeing away from the place of occurrence
(6) appellant was absconding for about a month. Both the courts below
convicted the appellant under Section 302 and 376 IPC and sentenced
him to death. Hence this appeal.

H Allowing the appeal, the Court
160
+
KANHAI MISHRA v. STATB 161
HELD : 1. It is a well established rule in criminal jurisprudence that A
circumstantial evidence can be reasonably made the basis of an accused
person's conviction if it is of such a character that the same is wholly
inconsistent with innocence of the accused and is consistent only with his
guilt. The incriminating circumstances for being used against the accused
must be such as to lead only to a hypothesis of guilt and reasonably exclude
B
every possibility of innocence of the accused. In a case of circumstantial
evidence the whole endeavour and effort of the court should be to find out
whether the crime was committed by the accused and the circumstances
proved from themselves into a complete chain unerringly pointing to the
guilt of the accused. If the circumstances proved against the accused in a
case are consistent either with the innocence of the accused or with his guilt, c
he is entitled to the benefit of doubt. [163-G-H; 164-A]

M.G. Agarwal v. State of Maharashtra, AIR (1963) SC 200; Ronny
Alias Rona/ James Alwaris & Ors. v. Stale of Maharashtra, [1998] 3 SCC 625
and Joseph S/o. Wooveli Paulo v. Stale of Kera/a, [2000] 5 SCC 197, relied
on. D

2. The circumstance that after the alleged occurrence the appellant
absconded from his house, apart from not being proved by credible materi-
als cannot be used against him as from his statement recorded under Section
313 Cr.P.C., it would be amply clear that this circumstance was never put to
E
him and consequently the same cannot be used against him. [ 168-G)

Kehar Singh & Ors. v. State (Delhi Administration), [1988] 3 SCC 609,
relied on.

3. Only one circumstance has been proved against the appellant and
that cannot be said to be inconsistent with his innocence. However, it is sad F
that such a ghastly crime of first committing rape upon a teenager and
thereafter brutally murdering her is going unpunished because of !aches
on the part of the prosecution. The conviction is converted into acquittal,
as the solitary circumstance proved against him can not form the basis of
conviction. [169-D] G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 887
of 2000.

From the Judgment and Order dated 19.5.2000 of the fatna High Court
in D.R. No. 3 of 1999 with Crl.A. No. 234 of 1999 (D.B.). H
162 SUPREME COURT REPORTS [200i] 2 S.C.R.
A M. Qamaruddin, (A.C.) for the Appellant.

B.B. Singh and Kumar Rajesh Singh for the Respondent.

The Judgment of the Court was delivered by

B B.N. AGRAWAL, J. This appeal by special leave has been preferred
against the judgment of Patna High Court confinning that of the Sessions Court
whereby the appellant was convicted under Section 302 of the Indian Penal
Code and sentenced to death and to pay a fine of Rs. 50001- inasmuch
as further convicted under Section 376 of the Indian Penal Code and sen-
tenced to undergo simple imprisonment for life and to pay a fine of
c Rs. 5000/-.

The prosecution case in shon is that on the morning of 27th July, 1995
at about 5 O' clock the ·appellant, who was co-villager of Ram Sunder Jha
(PW.3), the infonnant, came to his house on the pretext of taking tobacco
from him. At that time, the appellant told Rita Kumari, daughter of the
D
infonnant, that there were plenty of flowers in the orchard of Shobha Kant
Mishra and asked her to go with him to the said orchard stating that he would
also help her in plucking flowers and in this way enticed Rita Kumari for
going to the said orchard. Thereafter, Rita Kumari went out of the house for
plucking flowers followed by the appellant. At 6 A.M., some of the co-
E villagers came to the house of the infonnant and intimated him that dead body
of his daughter, Rita Kumari, was lying in the jute field of Prabhu Mishra
whereupon he along with them and his family members went there and found
his daughter lying on the ground and her red undergarment removed from one
of her legs. It was also noticed that there were white spots resembling semen
F around her genital organ and black marks of scratches around both sides of
her neck. The flower basket with flowers was found scattered there and her
chappals were' seen at some distance. The infonnant and his companions
having felt that Rita Kumari was unconscious, lifted and brought her to a
nearby well belonging to one Jai Narain Mishra where water wa• poured on
her whereafter only it transpired that she was already dead as she did not
G regain consciousness. The dead body of Rita Kumari was brought by the
infonnant to his house. Stating the aforesaid facts, fard-beyan of the infonnant
was recorded at his house by the Officer-in-charge of Pratap Ganj Police
Station on the same day at II A.M. wherein it was also alleged that the
appellant enticed her daughter, committed rape upon her and killed her by
H pressing the neck.
KANHAI MISHRA v. STATE [B.N. AGRAWAL, J.] 163
During the trial the prosecution examined 10 witnesses in all to prove A
the circumstances against the appellant as undisputedly there is no direct
evidence to show his complicity with the crime. Upon the completion of trial,
the appellant having been convicted by the trial court, as stated above, and
the said conviction having been confirmed by the High Cour~ the present
appeal by special leave is before us.
B
The circumstances which weighed with the two courts below in con-
victing the appellant may be enumerated hereunder:-

!. The appellant came to the house of the informant on the date of the
occurrence at 5 O'clock in the morning on the pretext of taking tobacco from
him, met him and his daughter, Rita Kumari, enticed her to go to the orchard c
of Shobha Kant Mishra for plucking flowers on Madhu Srawani day for being
used by elder daughter of the informan~ who was newly married, for perform-
ing puja.

II. The appellant left the house of the informant along with Rita Kumari
for the orchard.
D

III. The appellant and the deceased-Rita Kumari were seen going
toward~ the orchard.

IV. The appellant and the deceased were seen in the field of Shobha
Kant Mishra plucking flowers. E

V. The appellant was seen fleeing away in the vicinity of the jute field
immediately after the alleged occurrence.

VI. Immediately after the alleged occurrence, the appellant absconded
from his house and surrendered in court only after about a month of the F
alleged occurrence.

It is a well established rule in criminal jurisprudence that circumstantial
evidence can be reasonably made the basis of an accused person's conviction
if it is of such a character that the same is wholly inconsistent with innocence
of the accused and is consistent only with his guilt. The incriminating circum- G
stances for being used against the accused must bo such as to lead only to a
hypothesis of guilt and reasonably exclude every possibility of innooence of
the accused. In a case of circumstantial evidence the whole endeavour and
effort of the court should be to find out whether the crime was committed by
the accused and the circumstances proved form themselves into a complete H
164 SUPREME COURT REPORTS [2001] 2 S.C.R.
A chain unerringly pointing to the guilt of the accused. If the circwnstances
proved against the accused iu a case are consistent either with the innocence
of the accused or with his guilt, he is e.ntitled to the benefit of doubt.
Reference in this connection may be made to a Constitution Bench judgment
of this Court in the case of M.G. Agarwal v. State of Maharashtra, AIR 1963
SC 200, and recent decisions of this Court in the cases of Ronny Alias Ronald
B
James Alwaris & Ors. v. State of Maharashtra, [1998] 3 SCC 625 and Joseph
Sia Kooveli Paulo v. State of Kera/a, [2000] 5 SCC 197.

Keeping in mind the aforesaid position of law, the evidence, adduced
to prove the circwnstances used against the appellant which weighed with the
c courts below, has to be considered, but before considering the same, we feel
it would be expedient to refer to certain important aspects which would make
the prosecution case, showing complicity of the appellant with the crime,
highly doubtful.

Firstly, the informant - Ram Sunder Jha (PW.3) stated in his evidence
D in court unequivocally that he along with Indra Mohan Jha (PW. 7) went to
the Pratap Ganj Police Station and narrated the occurrence before the Officer-
in-charge of the Police Station and thereafter they returned with him to the
village where in the house of the informant the Sub-Inspector of Police -
Chitta Ranjan Shit (PW.IO), who was Officer-in-charge of the Police Station,
recorded his fard-beyan at 11 O'clock. During the cross-examination, the
E
witness stated that he arrived at the police station on that day at about 9
O'clock, stayed there for 10 to 20 minutes and thereafter retwned to the
village. This witness has nowhere stated that he disclosed the name of the
appellant before the Officer-in-charge at the police station, which was the first
version of the occurrence unfolded by him. When the witness had gone to the
F police station, we do not find any reason as to why fard-beyan was not
recorded there at 9 O'clock bnt recorded at the house of the informant after
two hours at 11 O'clock which goes to show that there was inordinate delay
in recording the fard-beyan. This further shows that by the time informant was
at the police station he did not suspect complicity of the appellant with the
crime and subsequently after due deliberations, fard-beyan was given by the
G
informant at his house alleging therein that the appellant had complicity with
the crime. Thus the evidence of this witness makes the prosecution caee
showing complicity of the appellant with the crime doubtful.

Secondly, from the aforesaid statement of PW.3 it is clear that he went
H to the police station, narrated the occurrence to the Officer-in-charge (PW.10),
KANHAI MISHRA v. STATE [B.N. AGRAWAL. J.] 165
who thereafter left for the village, but it appears that the Investigating Officer A
(PW.10) has suppressed this fact as in his evidence he has come out with a case
that he received confidential information at the Police Station at 8.30 A.M. on
the date of occurrence that someone had been murdered in the village of
occurrence on the basis of which Sanaha entry No. 368 dated 27.7.1995 was
entered at the Police Station and he proceeded to the village to verify the
B
information and this shows that the prosecution case is suffering from the vice
of suppressio veri on material point.

Thirdly, according to the evidence of the informant (PW.3) he learnt for
the first time between 6 A.M. to 6.30 A.M. on the date of occurrence at his
house from Pala! Jha that the appellant had murdered his daughter, Rita C
Kumari, in the jute field by strangulation and her dead body was lying there.
Manjula Devi (PW.9), wife of the informant, has stated that Palat Jha came
to their house and informed that their daughter has been murdered after
committing rape upon her and the dead body was lying in the jute field. PW.3
stated during the cross-examination that on the date of occurrence he returned
from the police station along with PW.7 and Palat Jha which goes to show D
that Palat Jha also accompanied the informant to the police station. The First
Information Report shows that fard-beyan was attested by two persons, namely,
Indra Mohan Jha (PW.7) and Madhyanond Jha and PW.3 admitted that
Madhyanand Jha is also known as Palat Jha. There is absolutely no evidence
to show as to how Pala! Jha came to know that the deceased was raped and E
murdered by the appellant by strangulation and her dead body was lying in
the jute field. If Palat Jha was an eye-witness to the occurrence, he was the
most material witness for the prosecution. Palat Jha has not been examined.
There is no material to show that he was interrogated by the police. The
prosecution has failed to furnish any explanation whatsoever for non-exami-
F
nation of Palat Jha, who was the most material witness to unfold the truth.

Thus the aforesaid circumstances go to show that the prosecution case
showing complicity of the appellant with the crime intrinsically becomes
unworthy of credence.
G
In the light of aforementioned facts, we now proceed 10 consider the
circumstances enumerated by the two courts below against the appellant for
convicting him.

The first circumstance used against the appellant has been proved by the
informant (PW.3) who stated in the First Information Report and in his sub- H
166 SUPREME COURT REPORTS [2001] 2 S.C.R.
A sequent statement made before the police as well as in his evidence before the
court that on the date of occurrence the appellant came to his house in the
morning on the pretext of taking tobacco, met him and his daughter and enticed
her to go to the orchard of Shobha Kant Mishra for plucking flowers. The
aforesaid statement made by the informant has been supported by his wife,
Manjula Devi, (PW.9), who was also present at the time the appellant visited
B
their house in the morning. The statements of PWs. 3 and 9 have \leen corrobo-
rated by Afil.ar Nath Thakur (PW.6) who stated that at the place of occurren~e
when he arrived, PW.3 narrated him that in the morning the appellant came to
his house and gave a proposal to his daughter, Rita kumari, for going to the
orchard for plucking flowers. Similar statement has been made by Indra Mohan
C Jha (PW.7). We do not find any ground to reject the evidence of these witnesses
on this circumstance.
·So far as second circumstance that the appellant along with Rita Kumari
left her house for the jute field is concerned, it may be stated that there is
variance in the prosecution case disclosed in the First Information Report and
D the statement of witnesses. According to First Information Report, Rita Kumari
first left her house and the appellant went behind her, but the informant
(PW.3) in his statement in court stated that the appellant first left the house
of the informant and went ahead whereafter Rita Kumari also left her house
for the ·orchard. PW. 9, wife of the informant, in her statement stated that Rita
E Kumari left the house first, she went ahead and was followed by the appellant.
PWs. 6 and 7 have stated that informant told them that Rita Kumari and the
appellant left his house together for plucking flowers.

From the aforesaid evidence, it becomes clear that according to the
statement of PW.3 as disclosed by him before PWs. 6 and 7 the appellant and
F Rita Kumari left the house together whereas according to the First Informa-
tion Report as well as the statement of PW.9, Rita Kumari went ahead and _,_
thereafter the appellant left for the orchard. None of the witnesses examined
has stated that they had seen the appellant and Rita Kumari going together
towards the orchard, rather PW.2 has stated that he had seen the appellant
a'lone going towards the orchard. PW.6 stated that Shobha Kant, who has not
G been examined told him that he had seen Rita going alone towards the orchard
for plucking flowers. The discrepancy in the evidence whether Rita Kumari
went ahead and appellant left the house of the informant thereafter and whether
they had not left the house of the informant together, on the facts and circum-
stances of the case, is very material, especially in view of the fact that nobody
H had seen both of them going together towards the orchard and plucking flowers
KANHAI MISHRA v. S1f\TE [B.N. AGRAWAL, J.J 167
there more so when Palat Jha, who, according to tl1e informant, was the tirst
' A
r ' '

person who infonned him that his daughter had been done to death by the
appellant by strnngulating her and the dead body was lying in the jute field,
has not been examined. Thus, in view of the naturo of evidence, as stated
above, it is not safe to use this circumstance against the appellant.

So far as the third circumstance that the appellant and the deceased Rita B
Kumari were seen going together towards the orchard is concerned, the
prosecution has made an attempt in vain to prove the same by the evideqce
of PWs. 2, 6 and 7. Out of these three witnesses, PWs. 6 and 7 do not claim
that they had seen the appellant and Rita Kumari going towards the orchard,
but stated that tl1ey learnt from Lachhman Sada (PW.2) at the place of c
occmrenee that he bad seen Rita Kumari and the appellant going together upto
the Bamboo Clamp. The statement of these two witnesses on this point has

. been contradicted by PW.2 who stated that he had seen the appellant alone
going upto tl1e Bamboo Clamp. In the light of the afon:said infirmities in tl1e
evidence of the aforesaid witnesses, \Ve are of the view that the prosecution
• has failed to prove this circumstance. D

The fourth circu1nstance that the appellant and Rita Ku1nari were seen
in the field of Shobha Kant Mishra plucking flowers has been proved by PW.'/
alone who ·does not claim lo have himself seen them plucking the flowers,
but stal.ed that one Mahenclra Mishra told him that he had seen Rita Kumari
E
and tl1e appellant plucking flowers, but, for the reasons best known to the
proseclllion, Mahendra Mishra, who alone conld have proved this circum-
stance, has been withheld by the prosecution and no explanation is forthcom-
ing for his non-examination. Therefore, we have no option but to hold that
there is no reliable evidence in support of this circwnstant:e.
F
The fifth circumstance which has been used against the appellant is that
be was seen fleeing away in the vicinity of the jme field immediately after
the alleged occmTence which the prosecution has attempted to prove by the
evidence of PWs. 2, 6 and 7. Out of these three '"itne'8es, PW.2 stated that
immediately after the alleged occmrence he had seen tlic appellant fleeing
away in suspicious circumstances in the vicinity of the jute field. He also G

-
\ stated that he told this fact to the villagers. PWs. 6 and 7 have supported him
by saying that he stated this fact before tl1em. Therefore, the question rests
upon veracity of the evidence of PW.2. A suggestion was given to tl1is witness
that he was inimical to the accused which he had denied. It is not safe to place
reliance on tl1e evidence of this witness on this question, especially in view H
168 SUPREME COURT REPORTS [2001] 2 S.C.R.
A of the fact that Palat Jha has been withheld from the witness box and the
prosecution has failed to prove that the appellant and Rita Kumari were seen
going towards the orchard inasmuch as it might be possible that by the time
the appellant arrived the orchard, the crime had been committed by somebody
else and seeing the dead body lying there, out of fear, the appellant might have
been seen fleeing by PW.2.
B
The last circumstance which has been used against the appellant is that
after the alleged occurrence he absconded from his house and surrendered in
court only after about a month from the date of alleged occurrence. The only
evidence on this circumstance is of the Investigating Officer (J.'W.10) who has
c stated that during the course of investigation he received secret information
to the effect that the appellant was seen fleeing away wearing only undergar-
ments and in order to verify the same, he left the police station along with
the armed forces in search of the accused, went to the house of one Mithlesh
lha (husband of appellant's sister) at Village Murli where he was informed
that Chandra Mohan Mishra, father of the appellant, had gone there in search
D of him and he having not found him there, went to the place of other relatives
for searching him. This witness has nowhere stated from whom he received
the secret informalion inasmuch as such information cannot be made a basis
to prove this circumstance for being used against the appellant. The other
portion of the evidence of this witness that he learnt at the place of appellant's
E brother-in-law, Mithlesh Jha, that his father, Chandra Mohan Mishra had
come to the house of Mithlesh Jha and gone to the places of other relatives
in search of the appellant could have been proved by examining Mithlesh Jha
and .Chandra Mohan Mishra who could have been the best per<ons to prove
this fact, but, for the reasons best known to the prosecution, they have been
withheld. It may be stated that the Investigating Officer has nowhere stated
F that he ever visited the house of th$! appellant oor any other witness stated
that the appellant was not present -in his house after tloe occurrence. Thus, we
find there is no credible material to prove this circumstance. In any view of
the matter, this circumstance cannot be used against the appellant as from his
statement recorded under Section 313 of the Code of Criminal Procedure, it
G would be amply clear that this circumstance was never put to him and
consequently the same cannot be used. Reference in this connection may be I
made to a decision of this Court in die case of Kehar Singh & Ors. v. State
(Del/>i AdministraJion), [1988] 3 SCC 609.
In view of the foregoing discussions: we have no option but to hold that ·
H the only circumstance which the prosecution has proved against the appellant
KANHAI MISHRA v. STATE [B.N. AGRAWAL, J.] 169
is circumstance No. 1, i.e., that on the date of occurrence U1e appellant came A
to the house of the infonpant in the rooming and gave a proposal to his
daughter, Rita Kurnari, for going to the orchard of Shobha Kant Mishra for
plucking flowers which cannot be said to be inconsistent with innocence of
the appellant, especially in view of the fact that Ute fard-beyan was not
recorded at the police station when the infomtant had gone there, but at his
B
house after two hours from the time the info1mant visited the police station,
the Investigating Ollicer suppressed the fact Utat the in.fo1mant went to the
police station and na1Tated the incident to him at the police station, rather the
Investigating Ollicer (PW.IO) stated that he received confidential information
that some murder had taken place in the village of occurrence and further the
non-examination of Pala! nia, who was the most material witness to unfold C
the truth.

We are unhappy to note that such a ghastly crime of first connnitting
rape upon a teenager and thereafter brutally murdering her is going unpun-
ished because of laches on the pa11 of the prosecuting agency in conducting
the investigation and trial, and have no option but to painfully convert D
conviction of the appellant who was a condemned prisoner into acquittal as
the solitary circumstance proved against him can not fotm the basis of
conviction.

Accordingly, the appeal is allowed and the conviction and sentence
awarded against the appellant are set aside.
E

A.Q. Appeal allowed.