MADALA VENKATA NARSIMHA RAOversusSTATE OF A.P.

                   [2012] 11 S.C.R. 951


          MADALA VENKATA NARSIMHA RAO                         A
                             v.
                      STATE OF A.P.
            (Criminal Appeal No. 393 of 2009)
                  NOVEMBER 27, 2012
                                                              B
  [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

     Penal Code, 1860 - ss. 302 and 376 - Rape and Murder
- Circumstantial evidence - Three witnesses saw the accused
coming out of the house of the victim - Blood-stains on the C
clothes of the accused - Victim telling the witnesses that the
accused had assaulted her - In post-mortem, the doctor
opined that rape was committed on the accused - Trial court
acquitted the accused of both the charges - High Court
convicted the accused - On appeal, held: There was sufficient D
evidence to hold the appellant guilty of committing the murder
- But no cogent or admissible evidence regarding rape of the
victim - The only evidence as regards rape is the opinion of
the doctor who conducted post-mortem, which was not safe to
rely upon as the doctor was not examined as a witness.         E
     Appellant-accused was prosecuted for having raped
and murdered a girl. The prosecution case was that when
the victim/deceased was alone at home, her brother had
sent the appellant-accused to the house for some work.
PWs 3, 4 and 5 were standing near the house of the victim. F
When they heard the cry from the house of the victim, and
when they went to the house, they saw the accused
running out of the house in blood-stained clothes and he
ran away from there pushing them away. The accused
was also seen on the streets with blood-stained clothes G
by PW-7. The victim told PWs 3, 4 and 5 that the appellant
hit her with chutney grinder, as she had slapped him on
his holding her hand. PW-8 (doctor) administered her first-

                           951                                H
    952      SUPREME COURT REPORTS            [2012] 11 S.C.R.

A aid. She died on her way to the hospital. In post-mortem
  report (Exbt. P-9), the doctor opined that the deceased
  was also raped.

        Trial Court acquitted the accused of all the charges.
    High Court reversing the acquittal, convicted the accused
8
    u/ss. 302 and 376 IPC. Hence the present appeal.

          Partly allowing the appeal, the Court

          HELD: 1.1 To secure a conviction on circumstantial
c evidence, the prosecution must prove its case by cogent,
    reliable and admissible evidence. Each relevant
    circumstance must be proved like any other fact and
    upon a composite reading thereof, it must lead to a ;1igh
    degree of probability that it is only the accused and none
0   other who has committed the alleged offence. [Para 21)
    [960-C-D]
        Munna Kumar Upadhyay v. State of A.P. (2012) 6 SCC
    174 - relied on.
E      1.2. In the present case, the presence of the appellant
  at the scene of the crime, moments after it was
  discovered, is not in dispute. In fact, he was running away
  from inside the house where the crime was committed.
  While doing so, he pushed the persons who were
F entering the house on hearing the cries of the deceased.
  This is proved by the consistent testimony of each one
  of them. There is nothing in the cross-examination of
  these witnesses to suggest that they had cooked up a
  story to implicate the appellant. There is no explanation
G for this strange conduct whatsoever. The appellant had
  also blood-stains on his clothes at that time and he was
  also seen running on the street in that condition
  independently by PW7 who reached the scene of crime
  soon thereafter when the deceased was being taken
H away for administration of first-aid. The eye-witness
 MADALA VENKATA NARSIMHA RAO v. STATE OF 953
                  A.P.
account, moments after the discovery of the crime is so         A
overwhelming, coupled with the conduct of the appellant,
that only one conclusion is possible which is that the
murder of the deceased was committed by the appellant.
[Paras 22, 23, 24 and 25] [960-E-H; 961-A-C]
                                                                B
     1.3. Even the deceased gave virtually a dying
declaration in which she narrated the sequence of events
including the fact that the appellant had hit her with a
chutney grinder on her head and other parts of her body.
There is no reason at all why the deceased should falsely       C
implicate the appellant of such a heinous crime. Her
statement on this aspect may be contrasted with her
statement on the issue of rape, in which she did not say
a word to implicate the appellant. There is, therefore, more
than a ring of truth in the statement made by her,
moments before her death to PWs 3, 4 and 5. In this view        D
of the matter, on an overall consideration of all the facts
of the case, there is no doubt that the appellant alone
caused the murder. [Paras 26 and 27] [961-C-F]
     1.4. It cannot be accepted that since there were a         E
large number of discrepancies in the testimonies of
various witnesses, as pointed out by the Trial Judge, the
benefit thereof must go to the appellant. The
discrepancies noted by the Trial Judge, such as the time
of recording of the first information report, the time of       F
commencement of investigations by the police, the
absence of any clear evidence to suggest who informed
PW1 and PW2, does not take away the substratum of the
case of the prosecution. If, an overall picture of the events
is taken into consideration, it will be clear that the          G
discrepancies pointed out pale into insignificance and do
not affect the substratum of the case for the prosecution.
[Paras 33, 34 and 35] [962-F-H; 963-C]
     Syed Ahmed v. State of Kamataka (2012) 8 SCC 527 -
relied on.                                                      H
     954     SUPREME COURT REPORTS             [2012] 11 S.C.R.

·A     1.5. The primary duty of the Trial Judge is to
  determine the facts and then test the theory put forward
  by the prosecution. In this regard, the Trial Judge has
  failed in this duty. The Trial Court has not considered the
  events in totality but has disjointedly read the statements
B of the witnesses and has picked up minor discrepancies
  and highlighted them. The result of this approach is that
  the Trial Court has cast doubt on almost every aspect of
  the case. [Para 14) [958-A-C)

       2.1. On the issue of the appellant having raped the
C deceased, there is virtually no evidence except the final
  opinion of the doctor who had conducted the post-
  mortem Exhibit P-9. The deceased did not inform PWs 3,
  4 and 5 that she was raped or attempted to be raped by
  the appeHant. All that she said was that the appellant
D caught hold of her hand. Thereupon, she slapped the
  appellant which led him to pick up the chutney grinder
  and hit her on the head and other parts of her body. There
  does not seem to be anything in the testimony of PWs 3,
  4 and 5 to suggest that the deceased was raped or an
E attempt was made to rape her. The evidence of the doctor
  who administered first-aid to the deceased also does not
  give any indication of her having been violated. Even the
  complaint made by PW3 to the police does not mention
  anything about the deceased having been raped. The
F only evidence in this regard is the final opinion of the
  doctor. However, in the absence of the doctor having
  entered the witness box, it would not be safe to rely on
  the medical opinion that the deceased was raped. [Paras
  28, 29 and 30) [961-G-H; 962-A-D]
G
         2.2. Merely because some semen was collected from
     the person of the deceased or the trousers of the
     appellant, does not ipso facto lead to the conclusion that
     he had raped her. On the basis of the facts on record,
H
 MADALA VENKATA NARSIMHA RAO v. STATE OF 955
                  A.P.
there is no evidence to suggest that the appellant had A
raped the deceased. [Paras 31 and 32] [962-E-F]
                      Case Law Reference
    c2012) s sec 114             Relied on             Para 21
                                                                  B
    c2012) a sec 527             Relied on             Para 34
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 393 of 2009.

    From the Judgment & Order dated 14.2.2008 of the High         c
Court of Judicature Andhra Pradesh at Hyderabad in Criminal
Appeal No. 42 of 2006.

    Vikas Upadhyay (for B.S. Banthia) for the Appellant.

      Shishir Pinaki, Suchitra Hranghwal (for D. Mahesh Babu) D
for the Respondent.

    The Judgment of the Court was delivered by

     MADAN B. LOKUR, J. 1. The question for consideration
is whether the High Court was right in setting aside the acquittal E
of the appellant for the murder of Lalitha and whether she was
raped before her murder. In our opinion, there is sufficient
evidence to hold the appellant guilty of committing the murder
of Lalitha, but no cogent or admissible evidence of her having
been raped.                                                        F

The facts:

      2. On 4th December, 1998 PW-1 Srimannarayana and his
wife had gone to village Jangareddygudem at about 6.00 a.m. G
for the purpose of fixing a matrimonial alliance for their daughter,
Lalitha. Later that day, at about 7/7.30 a.m. PW-2
Subrahmanyam son of Srimannarayana and brother of Lalitha
opened their kirana shop. He then instructed the appellant who
had been working with the family for the last about 10 years to
get some tiffin from a hotel, deliver it to him and then deliver to H
    956      SUPREME COURT REPORTS                  [2012] 11 S.C.R.

A   his sister, Lalitha, who was at their residence.

       3. According to Subrahmanyam, the appellant did not turn
  up for some time and at about 8.15 a.m. his uncle, PW-3
  Lakshmi Narayana came to the kirana shop and informed him
  that his sister, Lalitha, was lying badly injured at their residence.
8
  Both of them then rushed to the residence where they picked
  up Lalitha and took her to a local doctor PW-8 Kasi
  Viswanadham who administered first-aid. However, considering
  Lalitha's serious condition, she was advised to be shifted to
C Rajamundry. Transport was arranged to take her to Rajamundry
  but she died en route. Her body was then brought back and
  kept in the front courtyard of the house.

       4. In the meanwhile, Srimannarayan was informed about
  the incident by another daughter and he rushed back to his
D residence at about 9.30 a.m. by which time Lalitha had died.

       5. After conducting necessary investigations, on the basis
  of a first information report lodged by Lakshmi Narayana, a
  challan was filed by the police in which it was alleged that the
E appellant had raped Lalitha and had murdered her.

       6. According to the prosecution, Lakshmi Narayana, the
  uncle of Subrahmanyam and elder brother of Srimannarayana
  was asked by Srimannarayana to look after his residence in
  his absence. In this connection, Lakshmi Narayana went to their
F residential house at about 8 a.m. or so. There he found some
  neighbors PW-4 Purnachandra Rao and PW-5 Venkateswara
  Rao chitchatting and he joined them in the conversation.
  Suddenly, they heard some cries emanating from inside the
  house of Srimannarayana and while they were entering the
G house in response to the cries, the appellant came running out
  of the house with blood-stained clothes, pushed them and ran
  away.
      7. When Lakshmi Narayana, Purnachandra Rao and
H Venkateswara Rao entered the house they found Lalitha lying
  MADALA VENKATA NARSIMHA RAO v. STATE OF 957
          A.P. [MADAN B. LOKUR, J.]
in a pool of blood and she infonned them that the appellant had     A
got hold of her hand whereupon she slapped him. He then
picked up a chutney grinder and hit her on the head and other
parts of the body and stabbed her with a knife. She asked these
persons for medical assistance and was then taken to the local
d~~                                                                 B
     8. After her death, a post-mortem examination was
conducted on Lalitha by Dr. K. Shymala Devi who gave the final
opinion Exhibit P-9 that Lalitha was raped. However, this doctor
did not enter the witness box.
                                                                    c
     9. It may be mentioned that after the appellant ran out of
the house, he was seen running on the street with blood-stained
clothes by PW-7 N. Visweswara Rao who was returning from
a temple. While N. Visweswara Rao was passing the house
of Srimannarayana, he found some people gathered over there D
and saw Lalitha in a pool of blood and Lakshmi Narayana,
Purnachandra Rao and Venkateswara Rao preparing to
remove her.
    10. The defence put up by the appellant was that in fact        E
he had not committed the crime but had discovered it.
     11. On these broad facts, the Trial Court by its order dated
18th June 2004 passed in Sessions Case No.163/99 found the
evidence insufficient to convict the appellant of the charge of
rape or murder. This view was reversed in appeal by the High        F
Court by its judgment and order dated 14th February 2008
passed in Criminal Appeal No.42 of 2006. The High Court
convicted the appellant of the crime of rape and murder and
sentenced him to imprisonment for life.
                                                                    G
    12. It is under these circumstances.that the matter is now
before us.
Decision of the Trial Court:
     13, The analysis of the evidence and the decision of the       H
    958     SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A Trial Court leave much to be desired. The Trial Judge has not
  determined any facts, but has only found loop-holes in the oral
  evidence. The primary duty of the Trial Judge is to determine
  the facts and then test the theory put forward by the prosecution.
  In this regard, the Trial Judge has unfortunately failed in this
B duty.

       14. The Trial Court has not considered the events in totality
  but has disjointedly read the statements of the witnesses and
  has picked up minor discrepancies and highlighted them. The
C result of this approach is that the Trial Court has cast doubt on
  almost every aspect of the case. It has cast doubt on the
  lodging of the first information report; it has doubted the arrest
  of the appellant; the presence of Lakshmi Narayana,
  Purnachandra Rao and Venkateswara Rao at the scene of the
D crime; the testimony of Srimannarayana and Subrahmanyam
  as well as N. Venkateswara Rao. In other words, the Trial Court
  did not believe any of the material witnesses and concluded
  that the entire story was cooked up to implicate the appellant.
  On this basis, the appellant was acquitted.

E       15. However, the Trial Court did not err in its conclusion
  on the allegation of the prosecution that Lalitha was raped. In
  this regard, the Trial Court noted that Lalitha did not say that
  she was raped and only stated that the appellant caught hold
  of her hand. But, the Trial Court erroneously proceeded on the
F basis that rape can be committed only behind closed doors
  and since there was no evidence that the doors of the house
  were closed, Lalitha could not have been raped. The Trial Court
  noted that the complaint lodged by Lakshmi Narayana did not
  mention that Lalitha was raped. It also noted that even the local
G doctor Kasi Viswanadham who administered first aid did not
  notice any evidence of rape. The Trial Court failed to note that
  the final medical opinion given by Dr. K. Shymala Devi could
  not be accepted since the doctor did not enter the witness box
  to support the post-mortem report. Be that as it may, the Trial
H Court concluded that Lalitha was not raped.
  MADALA VENKATA NARSIMHA RAO v. STATE OF 959
          A.P. [MADAN B. LOKUR, J.]

Decision of the High Court:                                        A

     16. The High Court disagreed with the Trial Court on every
aspect of the case. It was found that the evidence of Lakshmi
Narayana, Purnachandra Rao and Venkateswara Rao was
consistent on material issues. They had seen the appellant in      B
blood-stained clothes pushing them and running away from the
scene of the crime. In fact, the appellant was also seen running
with blood stained clothes on the street by N. Venkateswara
Rao.

     17. The High Court noted that appellant admitted his          C
presence at the scene of the crime since he claimed to have
reached there soon after the crime was committed. The High
Court found that under these circumstances there was no
explanation for his conduct of running away from the scene of
the crime if in fact he had not committed any offence.             D

      18. The High Court also took into consideration the fact
that Lalitha, while gasping for life, clearly stated that the
appellant had hit her with a chutney grinder and all these facts
put together clearly indicated that the appellant had murdered     E
Lalitha.

     19. On the issue whether Lalitha had been raped, the High
Court found that the post mortem report Exhibit P-9 established
that Lalitha was raped and on this basis, the conclusion arrived
at by the Trial Judge was reversed and the appellant convicted     F
for having raped Lalitha.

Submissions:

     20. The principal contention of learned counsel for the       G
appellant was that the case is one of circumstantial evidence
and however strong the suspicion may be, it cannot take place
of proof. There were no eye witnesses to the crime and,
therefore, it cannot be conclusively said that the appellant had
murdered Lalitha. It was also contended that there was no
                                                                   H
     960    SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A evidence that Lalitha had been raped and even in this regard
  the conclusion of the High Court was faulty. It was finally
  submitted by learned counsel for the appellant that there were
  far too many discrepancies in the evidence of the witnesses,
  as brought out by the Trial Judge, and they could not be ignored.
B The cumulative effect of all these discrepancies casts a doubt
  on the case of the prosecution and the benefit of this must go
  to the appellant.

     Discussion:

'C     21. The law on appreciation of circumstantial evidence is
  now too well settled to bear any repetition. Suffice it to say that
  to secure a conviction on circumstantial evidence, the
  prosecution must prove its case by cogent, reliable and
  admissible evidence. Each relevant circumstance must be
D proved like any other fact and upon a composite reading
  thereof it must lead to a high degree of probability that it is only
  the accused and none other who has committed the alleged
  offence. In this regard, reference may be made to Munna
  Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174
E (authored by one of us, Swatanter Kumar, J).

       22. In our case, the presence of the appellant at the scene
  of the crime moments after it was discovered is not in dispute.
  In fact, he was running away from inside the house where the
  crime was committed. While doing so, he pushed Lakshmi
F Narayana, Purnachandra Rao and Venkateswara Rao who
  were entering the house on hearing the cries of Lalitha. This is
  proved by the consistent testimony of each one of them. There
  is nothing in the cross-examination of these witnesses to
  suggest that they had cooked up a story to implicate the
G appellant.

       23. The presence of the appellant having been conclusively
  established, there should be some reason why he ran away
  from the scene of the crime if in fact he was the one who had
H discovered it and not the one who had committed it. There is
  MADALA VENKATA NARSIMHA RAO v. STATE OF                         961
          A.P. [MADAN B. LOKUR, J.]

no explanation for this strange conduct whatsoever. To say that           A.
the appellant is a rustic villager is neither here nor there.
      24. In this context, it is not possible to overlook the fact that
 the appellant had blood-stains on his clothes at that time and
 he was also seen running on the street in that condition                 8
 independently by N. Venkateswara Rao, who reached the
 scene of crime soon thereafter when Lalitha was being taken
.away for administration of first-aid.

     25. The eye witness account, moments after the discovery
of the crime is so overwhelming, coupled with the conduct of C
the appellant, that only one conclusion is possible which is that
the murder of Lalitha was committed by the appellant.

     26. In addition, it must be appreciated that even Lalitha
gave virtually a dying declaration in which she narrated the              o
sequence of events including the fact that the appellant had hit
her with a chutney grinder on her head and other parts of her
body. There is no reason at all why Lalitha should falsely
implicate the appellant of such a heinous crime. Lalitha's
statement on this aspect may be contrasted with her statement             E
on the issue of rape, in which she did not say a word to
implicate the appellant. There is, therefore, more than a ring of
truth in the statement made by Lalitha moments before her
death to Lakshmi Narayana, Purnachandra Rao and
Venkateswara Rao.
                                                                          F
      27. In this view of the matter, on an overall consideration
of all the facts of the case, we have no doubt that the appellant
alone caused the murder of Lalitha.
      28. On the issue of the appellant having raped Lalitha, we          G
find that there is virtually no evidence to this effect except the
final opinion Exhibit P-9. As noted above, Lalitha did not inform
Lakshmi Narayana, Purnachandra Rao or Venkateswara Rao
that she was raped or attempted to be raped by the appellant.
All that she said was that the appellant caught hold of her hand.         H
    962     SUPREME COURT REPORTS                 [2012) 11 S.C.R.

A Thereupon, Lalitha slapped the appellant which led him to pick
  up the chutney grinder and hit her on the head and other parts
  of her body. There does not seem to be anything in the
  testimony of Lakshmi Narayana, Purnachandra Rao and
  Venkateswara Rao to suggest that Lalitha was raped or an
B attempt was made to rape her.

       29. The evidence of the doctor Kasi Viswanadham who
  administered first-aid to Lalitha also does not give any
  indication of Lalitha having been violated. Even the complaint
C made by Lakshmi Narayana to the police does not mention
  anything about Lalitha having been raped.

       30. As mentioned above, the only evidence in this regard
  is the final opinion of Dr. K. Shymala Devi which is Exhibit P-
  9. However, in the absence of the doctor having entered the
D witness box, it would not be safe to rely on the medical opinion
  that Lalitha was raped.

       31. We are also of the opinion that merely because some
  semen was collected from the person of Lalitha or the trousers
E of the appellant does not ipso facto lead to the conclusion that
  he had raped her.

         32. On the basis of the facts on record, we hold that there
    is no evidence to suggest that the appellant had raped Lalitha.

F        33. We are not inclined to accept the contention of learned
    counsel for the appellant that since there were a large number
    of discrepancies in the testimonies of various witnesses, as
    pointed out by the Trial Judge, the benefit thereof must go to
    the appellant. ·
G       34. The discrepancies noted by the Trial Judge, such as
  the time of recording of the first information report, the time of
  commencement of investigations by the police, the absence of
  any clear evidence to suggest who informed Srimannarayana
  or Subrahmanyam does not take away the substratum of the
H case of the prosecution. What are minor discrepancies and
             -                                                    -
 MADALA VENKATA NARSIMHA RAO v. STATE OF 963
         A.P. [MADAN B. LOKUR, J.]
their impact has been dealt with in Syed Ahmed v. State of A
Kamataka, (2012) 8 SCC 527 (authored by one of us Lokur,
J) and we need not repeat the view taken.

     35. The substantive case of the prosecution is that Lalitha
was murdered in her house. There is no doubt about this, nor B
is there any doubt that almost immediately thereafter (on
hearing her cries) Lakshmi Narayana, Purnachandra Rao and
Venkateswara Rao saw the appellant running away from the
house in blood-stained clothes. There is also no doubt that
these persons were informed by Lalitha that the appellant hit
her with a chutney grinder. If, on these basic facts, an overall C
picture of the events is taken into consideration, it will be clear ·
that the discrepancies pointed out pale into insignificance and
do not affect the substrat:.im of the case for the prosecution.

      36. As we have noted above, the Trial Judge has not           D
thought it fit to determine facts but only thought it appropriate
to find out the smallest inconsistency or disagreement in the
testimony of the witnesses so as to discredit them. This is not
the correct approach for the Trial Court to adopt and, in fact,
the High Court has characterized this as perverse. We say           E
nothing on this and leave it at that.

Conclusion:

     37. Under these circumstances, we have no hesitation in
upholding the view of the High Court that the appellant is guilty   F
of committing the murder of Lalitha. However, we are of the
opinion that there is no evidence that the appellant had raped
Lalitha.

    38. The appeal is accordingly allowed in part and the           G
conviction and sentence awarded to the appellant for an offence
punishable under Section 302 of the IPC is confirmed.

K.K.T.                                   Appeal partly allowed.