G. C. GUPTA, J. ( 1 ) THE appellant, having been found guilty of offence punishable under section 354, P. P. C. and sentenced to two yearst R. I. , by judgment dated 26/9/1984, passed by Shri D. P. Pandey, Sessions Judge, Durg in Sessions Trial No. 81 of 1984, has preferred this appeal from jail challenging his aforesaid conviction and sentence. ( 2 ) THE appellant was put on trial for attempting to commit rape on Kumari Lalsa, a minor girl of about 5 years, on 19-4-1984, punishable under section. 376/511, I. P. C. It is alleged that Kumari Lalsa was the minor daughter of Chandradevsingh, the neighbour of the appellant. On the date of incident, Chandradevsingh had gone out of his house to sell fruits. The appellant persuaded Kumari Lalsa to come into his house by promising to give her some ice-cream. The appellant was admittedly engaged in selling ice-cream. When the girl went into the house, the appellant closed the door, took off his own underwear and also her underwear and made the girl to lie on his belly and started rubbing his penis on the vagina of the girl. The girl felt pain and started crying, on which she was allowed to go out. Kumari Lalsa went weeping to her mother and told her what the appellant had done with her. Her father Chandradevsingh was informed about the incident when he returned home in the evening. The report was lodged thereafter. Kumari Lalsa was sent for medical examination of Dr. (Mrs) Dipti Prakash (P. W. 1) and was examined by her next day at about 11. 30 A. M. The lady doctor found no injury of any type on the private part of the person of Kumari Lalsa. After investigation, the appellant was put on trial as aforesaid. ( 3 ) DURING the trial, Kumari Lalsa was examined as P. W. 4. The learned Judge found her to be of about 5 years of age and unable to understand anything. Inspite of it, she told the Court in the beginning that the appellant was her neighbour and sells ice-cream. She also told that she used to call him Bhaiya. Thereafter, she, however, stopped speaking and, hence, her evidence could not be recorded. The learned Judge, therefore, found that there was no eye-witness of the incident. Inspite of it, she told the Court in the beginning that the appellant was her neighbour and sells ice-cream. She also told that she used to call him Bhaiya. Thereafter, she, however, stopped speaking and, hence, her evidence could not be recorded. The learned Judge, therefore, found that there was no eye-witness of the incident. According to the learned Judge, the prosecution can be based on circumstantial evidence also. The learned Judge found that there were at least four circumstances which point to the guilt of the appellant, viz. , (i) appellant's effort to call girl inside his house on promise to give her ice-cream, (ii) Kumari Lalsas coming out of his house weeping; (iii) statement of Kumari Lalsa to her mother Gayatri (P. W. 5), father Chandradevsingh (P. W. 3) and Bhola Khan (P. W. 7); and (iv) admission of the appellant before Chandradevsingh (P. W. 3), Bhola Khan (P. W. 7) and Anandi Shah (P. W. 10 ). Relying however on the evidence of Dr. (Mrs) Prakash (P. W. 1), the learned Judge did not find and attempt on his part to commit rape, but found that he had undressed himself and put the girl on his belly and was rubbing his genital organ on the vagina of the girl. That is how the appellant has been found guilty of offence punishable under section 354, I. P. C. ( 4 ) SHRI Prashant Jaiswal, learned counsel for the appellant, submitted, by adopting a long-drawn process of reasoning touching the basics of our law of evidence and at times converting the Court room into a class room, that in the absence of any statement by Kumari Lalsa (P. W. 4) in the Court, her statement to other witnesses would be hearsay and inadmissible in evidence. According to the learned counsel, if the statement made by Kumari Lalsa to other witnesses is excluded, other circumstances would not be sufficient to warrant the appellant's conviction. The learned Deputy Government Advocate, however, submitted that her statement to other witnesses was admissible under section 8 of the Evidence Act and does not amount to hearsay evidence. ( 5 ) ONE of the fundamental concepts contained in our law of evidence is that all facts necessary to prove an offence must be proved by oral evidence, except where those facts relate to contents of a document and oral evidence must be direct. ( 5 ) ONE of the fundamental concepts contained in our law of evidence is that all facts necessary to prove an offence must be proved by oral evidence, except where those facts relate to contents of a document and oral evidence must be direct. As to what is meant by direct evidence, is one has to refer to section 60 of the Evidence Act. Direct evidence does not necessarily mean evidence of an eye-witness of the crime, though evidence of such a witness must always be treated to be direct. The crime can also be proved by circumstantial evidence by which it is meant that in the absence of evidence of a witness the guilt may be established by proving circumstances from which a legal inference that the crime has been committed, may be drawn. It may, however, be added that even the circumstances have to be proved by evidence which must be direct and satisfy the provisions of section 60 of the Evidence Act. The distinction between direct and hearsay evidence is real and has to be kept in mind. While out criminal jurisprudence is allergic to here say it favours direct evidence. As far as hearsay evidence is concerned, the distinction drawn by the Privy Council in the case of Subramaniam v. Public Prosecutor,1 always be kept in view. Those observation are as under: Evidence of a statement made to a witness who is not himself called as a witness mayor may not be hearsay. It is hearsay inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made. The aforesaid observations must therefore, be kept in mind in order to distinguish hearsay evidence which is inadmissible and the evidence which is admissible. It may, therefore, be examined if the statements made by Kumari Lalsa (P. W. 4) are admissible in this regard Anandi Shah (P. W. 10), who had lodged the report (Ex. The aforesaid observations must therefore, be kept in mind in order to distinguish hearsay evidence which is inadmissible and the evidence which is admissible. It may, therefore, be examined if the statements made by Kumari Lalsa (P. W. 4) are admissible in this regard Anandi Shah (P. W. 10), who had lodged the report (Ex. P-8) has stated that he lodged that report in information given to him by Gayatribai, the mother of the girl. This is also clear from the report. Now, if evidence of Anandi Shah was to be used to establish the truth of the statement contained in the report, it would certainly be hearsay and inadmissible, but if his statement is to be read only to establish that the prosecutrix gave such a statement apart from the truth thereof, to her mother, it will. not be hearsay and would be admissible as a relevant fact. It is however, true that this would not be sufficient, to sustain the conviction. Gayatribai (P. W. 5) to whom the statement was given by Kumari Lalsa, has been examined in the Court. She had stated that the girl come out of the house of the appellant weeping and was asked as to what happened. On this, the girl had told her that the appellant had opened his underwear and also her underwear and had dishonoured her. The fact that such a statement wag made by the girl, would only be proved by evidence of Gayatribai and would be fully covered by section 60 of the Evidence Act, which permits proof of a fact which could be heard by the evidence of a witness who says he heard it. The fact that such a statement was made to Gayatribai and was heard by her, could be proved by her evidence alone. Her oral evidence in the Court is therefore not hearsay, but direct and clearly admissible. The learned counsel for the appellant has relied on Chikkarange Gowda v. Mysore State2 and Kanbi Vachli v. State3 to prove to the contrary. It is, however, difficult to agree with him. The Supreme Court does not lay down the law as stated by the learned counsel. The Gujarat case only applies the well established principles to the facts of the Particular case and concludes that evidence would be admissible if it is covered under section 60 of the Evidence Act and not otherwise. It is, however, difficult to agree with him. The Supreme Court does not lay down the law as stated by the learned counsel. The Gujarat case only applies the well established principles to the facts of the Particular case and concludes that evidence would be admissible if it is covered under section 60 of the Evidence Act and not otherwise. Under the circumstances, the statement made by the girl to the witnesses could be proved as a circumstance and the evidence adduced in the Court to prove that such a statement was made, shall be direct evidence and not hearsay. In this view of the matter, this Court has no hesitation in rejecting the submission that the statement so made cannot be excluded from consideration on the ground that it is hearsay and inadmissible. ( 6 ) INSPITE of it, it may be admitted that circumstantial evidence, which, in the context must mean a combination of facts creating a not without there being any tear, through which the accused can escape, must be such as would sufficiently establish the guilt of the accused person. On the negative side, it should exclude the possibility of any other conclusion. The leading case on the point is the decision of the Supreme Court in Hanumant v. State of M. P. 4. The following passage is the locus classicus of the decisions, which may be reproduced for ready reference: - The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved it must be such as to show that within all human probability the act must have been done by the accused. Recently the Supreme Court in Sharad v. State of Maharashtra5 has re-examined the law on the subject and has summarized the same into time broad propositions as under: - 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Bhivaji Sahebrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : (AIR! 973 SC 2622) where the following observations were made: Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and must bet is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilt of the accusation, that is to say, they should not be explainable on any other hypothesis except that he accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The aforesaid five principles have been termed as five golden principles or the panchsheel of the proof of a case based on circumstantial evidence by the Supreme Court, It may, therefore, be examined if the circumstances established by direct evidence in this case, justify the conviction. ( 7 ) THE circumstances appearing from the evidence on record are (1) appellant calling prosecutrix Kumari Lalsa into his house on a promise to give her ice- cream (proved by evidence of P. W. 5 - Gayatribai), (2) the fact that Kumari Lalsa came out of appellants house weeping, (3) statement made by Kumari Lalsa to her mother P. W. 5 Gayatribai, father P. W. 3 Chandradevsingh and Bholakhan (P. W. 7) and (4) admission made by the appellant before P. W. 3 Chandradevsingh, P. W. 5 Gayatribai and P. W. 7 Bholakhan. These facts have to be appreciated in the context of the fact that the appellant and Chandradevsingh are close neighbours-having no ill-will. The prosecutrix had been going to the appellant's house earlier, indicating absence of enmity. The question for consideration, therefore, is: whether the five golden principles mentioned above remain satisfied? The aforesaid circumstances are established from evidence of witnesses and, therefore, the first principle is fully satisfied. The next question is whether these facts are consistent with the hypothesis of the guilt of the appellant. In the context of the fact that the accused is the neighbour of P. W. 3 Chandradevsingh having no previous history of enmity between them, it is unthinkable that any false statement would be made against him. The girl being innocent-having been taken info the house for giving ice-cream, could not have come out of the house weeping, A child would return filled with joy if she had been given ice-cream as promised. These circumstances are, therefore, consistent with the hypothesis of the guilt of the appellant. It may, therefore, be examined if the circumstances are of a conclusive nature and exclude every possible hypothesis except the one to be proved. It may not be difficult to agree with the learned counsel that each of the four circumstances taken by itself in isolation with others would not be of a conclusive nature, but the cumulative effect of the four would be to conclusively establish the guilt. There is no other explanation as to why the girl, who had gone into the appellants house, would come out weeping and make the statement to the mother as she had done. There is also no explanation as to why the appellant, when asked would admit the incident. Under the circumstances, the only thing which remains to be seen is whether these circumstances establish a complete chain of evidence as to satisfy the fifth golden principle. The first three circumstances, if considered in the context of medical evidence on record, might not have made the chain complete, but the fourth circumstance, i. e. , the admission of the appellant, complete the chain without any doubt. P. W. 3 Chandradevsingh, in para 3 of his statement had deposed that he had asked the appellant as to why he had done so and he admitted to having done. This witness was not cross-examined on this point. P. W. 3 Chandradevsingh, in para 3 of his statement had deposed that he had asked the appellant as to why he had done so and he admitted to having done. This witness was not cross-examined on this point. P. W. 7 Bholakhan, who is an independent witness, had also made the enquiry from him and the appellant admitted the incident (para 3) and had stated that it was a mistake (para 5 ). A similar statement was, made to P. W. 10 Anandi Shah (see Para-2 ). Anandi Shah was also not cross-examined on this point. It is therefore, clear that the conduct of the appellant after the incident, is a circumstance providing the necessary link in the chain and making it complete. Under the circumstances, the evidence on record establishes all links of the chain of events and fully justifies the conclusion reached by the learned Judge. In this context, it must be remembered that the appellant has been convicted for an offence under section 354 I. P. C. only and not under section 376/511, I. P. C. Evidence of Gayatribai (P. W. 5) in the Court appears to be exaggerated Fortunately for the prosecution the truth has come from other witnesses, and, therefore, there is no hesitation in accepting the ultimate conclusion recorded by the learned Sessions Judge. Consequently the conclusion that the appellant has committed the offence punishable under section 354, I. P. C. must be upheld. ( 8 ) THE next and important question is about the sentence to be awarded? The learned Judge has awarded a sentence of two years R. I. The appellant is a young boy and has apparently committed the crime in the heat of passion. He has been in jail from the date of incident and would be completing his two years sentence in about a months time. ( 9 ) CONSIDERING all facts and circumstances, and particularly the youth of the appellant, the sentence already undergone would serve the cause of justice. ( 10 ) THE appeal, consequently, fails and is dismissed. The appellant is found guilty of offence punishable under section 354, I. P. C. and sentenced to imprisonment already undergone. Let him be released from Jail forthwith. .