Judgment:
ORDER
Vishnu Sahai, J.
1. The appellant aggrieved by the judgment and order dated 17th May, 1991, passed by the 5th Additional Sessions Judge, Thane, in Sessions Case No. 360 of 1990, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence under section 302 I.P.C. has come up in appeal before us.
2. In short the prosecution case runs as under :--
At the time of incident the appellant was working as a Manager with one Zahid Sheth, who was selling tea, Vada and other eatables at Kalyan Railway Station. The appellant had the habit of drinking liquor; of assaulting and teasing girls; of taking away small boys from the Railway Platform; and of misbehaving with them.
The deceased Bablu was aged about 8 to 9 years and used to beg on theRailway platform.
On 25th January, 1990, at about 1.30 a.m. P. W. 3 Nanak Punjabi, who was supplying tea and other items to the hawkers working with Zahid Sheth was sitting on Platform No. 7. P.W. 4 Maruti Bhoir who was bearer of the running room at Kalyan Railway Station situated on Platform No. 7 was on duty at that time. P.W. 2 Ashok Patil, who was working as a Coolie on Kalyan Railway Station was sleeping at that time on Platform No. 7. The deceased Bablu used to also sleep on the said platform at a place which was at five minutes walking distance from the place where Ashok Patil used to sleep.
At about 1.30 a.m. on 25-1-1990 Ashok Patil and Nanak Punjabi saw appellant in a drunken condition. He woke-up Bablu and took him behind the back side of the running room. About that time Maruti Bhoir (P.W. 4) heard the cries of a small boy coming from the back side of the running room. He went and informed Ashok Patil about it. It appears that they did nothing that night.
Next day i.e. 26th January, 1990, at about 8 a.m. Arjun Sayaji Sav (P.W. 1) who was serving as a watchman at Kalyan Railway Stores Department saw a corpse of a small boy aged about 8 to 9 years lying behind the western side wall of the running room.
3. The evidence of Arjun Sayaji Sav (P.W. 1) is that on finding the corpsehe went to Kolsewadi Police Station and lodged his F.I.R. which was recorded-by P.S.I. Raja Hudyalkar, who on its basis registered an offence under section 302 I.P.C.
4. The investigation was done in the usual manner by P.S.I. Hudyalkar.
On 26th January, 1990, he prepared panchanama of scene of offence as also that of corpse of the deceased. The same day he recorded statements of some witnesses and arrested the appellant.
He took into possession the full shirt, trousers and the under-pant which the appellant was wearing, under a panchnama Exhibit 18. During the course of interrogation the appellant admitted that he would produce clothes. Consequently the next day i.e. 27-1-1990, P.S.I. Hudyalkar alongwith public panch Gurcharan Singh P.W. 5 led by the appellant proceeded to the place of the incident. From the bushes behind the boundary wall which was situated behind the boundary wall of the running room; on the pointing out of the appelant, a quilt Was recovered under a panchnama.
The said quilt alongwith the under-wear of the appellant and the cotton swab and paper pieces collected by the autopsy surgeon was sent to the Chemical Analyst. On quilt and under-wear the Chemical Analyst found human blood and semen bearing A group. On the cotton swab and pieces of paper neither any blood nor semen was found.
After completing the investigation P.S.I. Hudyalkar submitted the charge sheet against the appellant on 4-4-1990.
5. Going backwards the autopsy on the corpse of the deceased Bablu was conducted on 26-1-1990 by Dr. Arun Sable (P.W. 7), who found on it the following three (3) anti-mortem injuries:--
(1) Abrasion 11/2 x 1/2' right side of lower mandible region.
(2) Abrasion 1' x 1' on right side of forehead.
(3) Contusion on the right side infra scapular region 1' x 1' blackishin colour.
In the opinion of Dr. Sable, death was the result of asphyxia due to suffocation. As mentioned earlier, Dr. Sable had taken the pieces of paper from the mouth of the deceased and rectal swab. The latter with a view to find out whether there was any blood or semen in the rectum.
6. The case was committed to the Court of Sessions in the usual manner. During the trial the appellant was charged for offences punishable under sections 302, 377 and 201 of the Indian Penal Code. During the trial in all the prosecution examined eight (8) witnesses. We may straight way mention that there is no eye witness of the incident and the case rests on circumstantial evidence; the twin circumstances being;
i) on 25-1-90 at about 1.30 a.m. on Platform No. 7 Ashok Patil (P. W. 2) and Nanak Punjabi (P.W. 3) saw the appellant waking up the deceased Bablu and taking him behind the running room situated on the said platform and about the same time Maruti Bhoir (P.W. 4) hearing the cries of a small boy and informing the said fact to Ashok Patil (P.W. 2); and
ii) Pursuant to the arrest of the appellant on 26-1-1990, recovery of clothes including the under-wear which the appellant was putting on and on 27-1-1990 in the presence of public pancha Gurcharan Singh recovery of quilt on the pointing out of the appellant.
The learned trial Judge believed the circumstantial evidence adduced by the prosecution and convicted and sentenced the appellant for the offence under section 302 I.P.C. He however, acquitted him for offences punishable under sections 201 and 377 I.P.C.
Hence this appeal .
7. We have heard Ms. Kiran Gupta for the appellant and Mr. I.S. Thakur, Addl. Public Prosecutor for the respondent. We have also perused the entire material on record and are implicitly satisfied that there is merit in this appeal and it deserves to be allowed.
8. As mentioned above, the twin circumstances on which the conviction of the appellant is founded are:
i) On 25-1-90 at 1.30a.m. on Platform No. 7, Ashok Patil (P.W. 2) and Nanak Punjabi (P.W. 3) saw the appellant waking up the deceased Bablu and taking him behind the running room situated on the said platform and about the same time Maruti Bhoir (P.W. 4) hearing the cries of a small boy and informing the said fact to Ashok Patil (P.W. 2); and
ii) pursuant to the arrest of the appellant on 26-1-90, recovery of clothes including the under-wear which the appellant was putting on and on 27-1-90 in the presence of public panch Gurcharan Singh recovery of quilt on the pointing out of the appellant.
We make no bones in observing that circumstance No. 2 does not inspire any confidence. It is true that on the under-wear of the appellant the Chemical Analyst found blood and semen stains of A group and he also found blood and semen stains of said group on the quilt recovered on the pointing out of the appellant. In our view in the absence of evidence regarding the group of blood and semen stains of the appellant and the deceased, this circumstance would not be incriminating.
In our view the recovery of quilt on the pointing out of the appellant on 27th January, 1990, does not appear to be above suspicion. We feel, had the quilt been lying in bushes behind the boundary wall of the running room it would have been recovered by the Investigating Officer on 26-1-1990, itself, on which date from within its immediate proximity the corpse of the deceased was recovered by him. Apart from it, the recovery panchanama shows that the said recovery was from an open place and in that view of the matter in view of the decision of the Supreme Court reported in : AIR1954SC39 Trimbak v. The State of Madhya Pradesh, no benefit would accrue to the prosecution on account of the said recovery.
9. So far as the presence of semen stains on the underwear of the appellant is concerned it would be pertinent to refer to paragraph 25 of the decision of the Supreme Court in the case of Rahim Beg v. State of U.P., reported in : 1972CriLJ1260 , wherein the Supreme Court has said that Semen stains on clothes of an underwear of a young man can exist for a variety of reasons and would necessarily not constitute incriminating evidence.
It would be pertinent to mention that the insinuation of the prosecution that the appellant tried to commit sodomy on Bablu does not inspire belief because on the cotton swab taken from the rectum of the deceased (it was taken by the autopsy surgeon with the object of finding out whether there was any blood or semen in the rectum of the deceased) the Chemical Analyst found no blood or semen stains. Had he found semen stains of A group it could have been an incriminating circumstance.
The Chemical Analyst also found no blood on the paper pieces which were taken from the mouth of the deceased.
10. If circumstance (ii) is eliminated then only one circumstance namely the appellant was last seen alongwith the deceased about 61/2 hours prior to the discovery of the corpse by the informant Arjun Sayaji Sav would remain. This circumstance at the highest may show that the prosecution case 'may be true'. But as Gajendragadkar, J., as he then was, in the oft, quoted decision of the Supreme Court reported in : 1957CriLJ1014 Sarwan Singh Rattan Singh v. State of Punjab, in paragraph 11 observed:--
'Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal reliable and unimpeachable evidence.'
To our regret that long distance between 'may be true' and 'must be true' has not been covered in the instant case by the prosecution.
That being the position the necessary imperative would be to extend benefit of doubt to the appellant.
Before parting with the judgment we would like to point out that circumstantial evidence can only be made a basis for conviction of an accused if: (i) the circumstances are firmly established against the accused; (ii) are wholly compatible with the inference of the guilt of accused; (iii) are wholly incompatible with his innocence; and (iv) are incapable of being explained on any other reasonable hypothesis excepting the guilt of the accused.
The said quantum of proof has not been discharged by the prosecutionin the instant case. At the highest what can be said in its favour is that itscase may be true. But that, as held in : 1957CriLJ1014 , supra is notenough.
11. In the result we give the benefit of doubt to the appellant; set aside his conviction and sentence for the offence under section 302 I.P.C. and acquit him on that count. The appellant is in jail and shall be released forthwith unless wanted in some other case.
12. Appeal allowed.