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2020 DIGILAW 72 (TRI)

Sajal Sarkar v. State of Tripura

2020-06-15

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. The instant appeal assails the correctness of the judgment dated 2.3.2012, passed by the learned Sessions Judge, North Tripura, Kailashahar incase No. Sessions Trial convicting the appellant for the offence punishable under Sections 376(1) and 302 of IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 10,000/- for the offence under Section 302 of IPC and also sentencing him to suffer imprisonment for 10 (ten) years for commission of offence under Section 376(1) of IPC and to pay a fine of Rs. 10,000/- with default stipulation and it was directed that both the sentences shall run concurrently. 2. FIR No. 10 of 2011 dated 08.07.2011 was registered by the Officer-In-Charge of Nepaltilla Police Station on the basis of a complaint lodged by one Sankar Sinha, father of the deceased, inter alia, stating that on 8.7.2011, he along with his family members went to Jagannath Temple, and at that time none but his elder daughter was alone in the house. Someone raped her and killed her by strangulating her neck with synthetic napkin and left her on the bed in naked condition. 2.1. On the basis of the said information the investigation was proceeded. In course of investigation, the appellant was arrested. The police seized the wearing apparels of the deceased-daughter of the informant (PW1). The bed-sheet, the blanket, the napkin and other articles were also seized by the police. Inquest was prepared, post-mortem was conducted, the vaginal swab, saliva and all the seized articles, including the wearing apparels of the deceased, were sent to the State Forensic Science Laboratory (SFSL) for report. 2.2. After conclusion of investigation, the investigating officer, being satisfied with the evidence and materials on record submitted charge-sheet before the Court of learned Judicial Magistrate, 1st Class, who committed the case to the Court of learned Sessions Judge for the purpose of trial. 23. Being committed, the learned Sessions Judge framed charges against the appellant under Sections 448/376(1)/302 of IPC. The appellant pleaded not guilty and claimed to be tried. 2.4. To establish the charges, the prosecution examined 17 witnesses and introduced some documents, including the medical examination report of the victim-girl and the Forensic Laboratory test report. 2.5. 23. Being committed, the learned Sessions Judge framed charges against the appellant under Sections 448/376(1)/302 of IPC. The appellant pleaded not guilty and claimed to be tried. 2.4. To establish the charges, the prosecution examined 17 witnesses and introduced some documents, including the medical examination report of the victim-girl and the Forensic Laboratory test report. 2.5. After the conclusion of recording of evidence, the accused was examined under Section 313 of CrPC, where he was noticed in regard to all the incriminating evidence and materials revealed against him to which he claimed to be innocent However, he did not adduce any evidence in his defence. 2.6. Having heard the learned counsels and on perusal of the records, the learned Sessions Judge found the appellant guilty of committing offence under Sections 376(1) and 302 of IPC and sentenced the appellant as afore-stated. However, the appellant was acquitted from the charge under Section 448 of IPC. 2.7. Being aggrieved, the appellant has preferred the instant appeal before this Court. 3. We have heard Mr. Raju Datta, learned counsel appearing for the appellant as well as Mr. Sumit Debnath, learned Addl. P.P. appearing for the State respondent. 4. Mr. Datta, learned counsel for the appellant contended that the prosecution has failed to establish the case of rape and murder as levelled against the appellant He assiduously argued that from a bare reading of the prosecution evidence it would be revealed that the statements of the witnesses were unworthy and without any credence. There are lots of improvements in narrating the incident, involving the appellant in connection with the crime and many statements were made for the first time in course of adducing evidence before the trial Court. Learned counsel had urged to set aside the judgment of conviction passed by the learned Sessions Judge. 5. On the other hand, Mr. Debnath, learned Addl. P.P. contended that all the circumstances, as emerged from the evidence of the prosecution witnesses pointed towards the guilt of the appellant alone and none else. Re-lying upon the evidence of PWs 2, 4, 5 and 14, he contended that the appellant had no business to ask PWs 2 and 4, who would come to Jagannath Temple and who would stay in the home. Next, the learned Addl. Re-lying upon the evidence of PWs 2, 4, 5 and 14, he contended that the appellant had no business to ask PWs 2 and 4, who would come to Jagannath Temple and who would stay in the home. Next, the learned Addl. P.P. contended that PW5 in his examination-in-chief deposed that he had seen the accused running away from the house of the informant, the father of the deceased. PW14 deposed that at about 12.00 pm, he noticed the appellant to enter into the house of his brother, Sankar Sinha (PW1). Defending the judgment of the learned trial Judge, learned Addl. P.P. had urged to maintain the conviction and sentence, as imposed upon the appellant. 6. In view of the aforesaid submissions of the learned counsels appearing for the parties, we have perused the evidence and materials on record to bring home the charges levelled against the accused-appellant. 6.1. PW1 Sri. Sankar Sinha, the father of the deceased-victim, is the informant of the incident. He deposed that on 08.07.2011, he along with his wife and two daughters went to Jagannath Temple. His elder daughter, the deceased herein could not accompany them as she had been suffering from some ailments. They returned home at about 3.30 pm when he saw the door was closed from outside. He further deposed that he was hungry and after opening the door he saw his daughter was lying on the cot, but he did not notice her carefully. In the meanwhile, his second daughter had called the deceased by touching her body when she found that her body was tied with hard substance. She called PW1 and when he went there he saw the throat of the victim was bounded by a gamcha (nap-kin) tightly. He noticed bloodstains in her mouth and ears. He also noticed bloodstains on the bed and when he removed the blanket he saw her in a naked condition. He found her pachra was kept in another cot with bloodstain. Her panty was also seen by the side of her pachra. Next, he deposed that his daughter was raped and murdered as he had seen her. He also noticed bloodstains on the bed and when he removed the blanket he saw her in a naked condition. He found her pachra was kept in another cot with bloodstain. Her panty was also seen by the side of her pachra. Next, he deposed that his daughter was raped and murdered as he had seen her. He further deposed that on that fateful day, his brother Bimal Sinha (PW4) had called the appellant, Sajal Sarkar in their house to prepare firewood for puja purpose, when Sajal, the appellant herein, asked his wife who would stay in the room, and who would go to the puja. He further deposed that Sajal was seen by the witnesses while moving in the house and his departure. Thereafter, he wrote the ejahar and submitted the same to the Officer-In-Charge of the police station. He identified the ejahar and also identified the seized articles, like pachra, panty, bloodstained bed-sheet, napkin, etc. In his cross-examination, this witness was confronted in regard to his statement which he made in his examination-in-chief that the appellant had enquired in the morning who would stay in the house and who would go to the puja. When his attention was drawn to his 161 CrPC statement, no such statement was found. He admitted that he did not mention in the ejahar that his younger brother (PW4) had called the appellant for wood-cutting. 6.2. PW2, Smt. Emai Sinha is the mother of the victim who deposed that on 8.7.2011 she went with her husband to Jagannath Temple. The appellant came to her and asked her who would go to the temple and who would stay in the home. When she told him that her daughter would stay as she had been suffering from dysentery and they would go to the temple. She further deposed that at about 4.00 pm she returned home and saw the deadbody of her daughter-Manika. She further stated that her sister-in-law, Rekha Sinha had seen the appellant to enter into their house. She further deposed, on that day the appellant came to their house for wood-cutting as he was called by Bimal Sinha (PW4). Being confronted with cross-examination, she admitted that she did not tell darogababu that Rekha (PW14) had seen the appellant to enter into their house. She further deposed, on that day the appellant came to their house for wood-cutting as he was called by Bimal Sinha (PW4). Being confronted with cross-examination, she admitted that she did not tell darogababu that Rekha (PW14) had seen the appellant to enter into their house. She also admitted that she did not tell the Officer-In-Charge that Bimal Sinha (PW4) had called the appellant for wood-cutting. 6.3. PW3, Sri Rasaraj Singh a deposed that he had seen the dead body of the victim. 6.4. PW4, Sri Bimal Sinha, the younger brother of the informant deposed that he called the appellant to prepare firewood. He further deposed that the appellant asked him who would go to Jagannath Temple and who would stay at home. In his cross-examination, this witness admitted that he did not tell the investigating officer that the appellant asked him that who would go to the temple and who would stay in the house. 6.5. PW5, Sri Kishore Sinha deposed that on 08.07.2011 at 2-2.15 pm while he was going to market he saw the appellant running away from the gate of the informant. When he called him and asked why he was running from the house of the informant? He further deposed that in reply to his query the appellant told him that there was none in his house. 6.6. PW6, Sri Kajal Deb Roy is a witness in presence of whom the appellant had confessed his guilt on 17.7.2011 at about 12 noon. 6.7. PW7, Sri Mrinal Kanti Sinha is also a witness of the confessional statement. He deposed that on 15.07.2011 at about 10-11 am, the confessional statement was made by the appellant. 6.8. PW8, PW9 and PW10 are not the material witnesses in relation to the crime. 6.9. PW11, Sri Pranab pal is also a witness to the confessional statement. 6.10. PW12 is not a material witness. 6.11. PW13, Sri Sukhomoy Sarkar deposed that on 08.07.2011 at about 2-2.30 pm while he was going to his land for grazing of cattle, he saw the appellant going towards Laljuri road very fast Being asked, the appellant told him that he was going to search cattle. He further deposed that he found suspicious movement of the appellant. 6.12. PW14, Mst. Rekha Sinha is the younger sister of the informant, Sankar Sinha. He further deposed that he found suspicious movement of the appellant. 6.12. PW14, Mst. Rekha Sinha is the younger sister of the informant, Sankar Sinha. She deposed that on 08.07.2011 she was working at the hospital where from the house of her brother was visible. She further deposed that at about 12.00 pm she noticed that the appellant was entering into the house of her brother, but, she did not take it other-wise as the appellant was their neighbour. Proceeding further, she deposed that while re-turning to home she saw the door of the house of her brother was closed as they all went to Jagannath temple. Further, she deposed that she noticed a pair of chappal belonging to the appellant. In her cross-examination she denied that chappal was not left by the appellant or that she did not see the chappal out side. She further revealed in her cross-examination that the investigating officer recorded her statement after 4/5 days of the occurrence. 6.13. PW15 is the police witness. 6.14. PW16, Sri Ratan Debbarma is the investigating officer of the case. He deposed that after receipt of the information he went to the place of occurrence, seized the wearing apparels by preparing seizure list along with blanket, bed-sheet prepared site-map and recorded the statements of one witness, namely Rangsaibati Reang. He arranged for postmortem of the body of the deceased, arrested the accused person and also arranged potency test of the accused. He also seized the wearing apparels of the accused (Exbt. 2 series). He further deposed that during police custody the accused had confessed his guilt and he recorded the confessional statement in presence of the witnesses. PW16 also recorded the statements of the witnesses of the confessional statement. He further deposed that he sent the vaginal swab, the sample of saliva and bloodstained articles to the SFSL. He also sent the samples of semen/spermatozoa of the accused to the SFSL. He received the reports thereafter. 6.15. PW17, Dr. Subhankar Bhattacharjee, the Medical Officer who conducted the postmortem examination over the dead body of the victim. He found several injury marks on the person of the deceased. He opined that before death, sexual intercourse was done forcibly. As PW18 he further deposed that one Dr. P.N. Darlong had examined the accused, who was found to be capable for sexual intercourse. 7. He found several injury marks on the person of the deceased. He opined that before death, sexual intercourse was done forcibly. As PW18 he further deposed that one Dr. P.N. Darlong had examined the accused, who was found to be capable for sexual intercourse. 7. We have carefully examined the reports of the SFSL where the vaginal swab of the deceased and other seized articles of the deceased were scientifically examined It would be relevant to reproduce the details of the report: “Details of parcel(s) and exhibits(s) received: Parcel No. Description of Exhibit(s) 01 One sealed wooden parcel put into a pitch board box covered with cloth contained the following exhibits: 1 Exhibit- E7 One white paper envelope contained a stick wrapped with cotton said to contain saliva of deceased, Manika Sinha 2 Exhibit- E8 One white paper envelope contained a small piece of hard structure said to be the nail of deceased, Manika Sinha 3 Exhibit-E9 One white paper envelope contained some black strands said to be the hair of deceased, Manika Sinha 4 Exhibit- E10 One white paper envelope contained a stick wrapped with cotton said to be the vaginal swap of deceased, Manika Sinha 5 Exhibit-A One sealed plastic container contained a small piece of gauze cloth having dark brown stain said to be the blood sample of accused person, Sajal Sarkar. 6 Exhibit-B One sealed plastic container contained a small piece of gauze cloth said to contain semen sample of the accused person, Sajal Sarkar. 7 Exhibit-C One sealed plastic container contained three pieces of black strands said to be the public hair of accused person, Sajal Sarkar. 8 Exhibit-D One sealed plastic container contained some black strands said to be the plucked public hair of accused person, Sajal Sarkar. 9 Exhibit- F1 One red color top (ganjee) said to be the wearing apparel of the deceased, Manika Sinha. 10 Exhibit- F2 One black-white-red color (check) gamchha said to be seized from the place of occurrence. 11 Exhibit- F3 One blue color blanket with floral prints (yellow-orange-red-white) said to be seized from the place of occurrence. 12 Exhibit- F4 One red-black floral printed light brown color bed cover said to contain blood stain. 13 Exhibit- F5 One violet color Manipuri Pachhra said to be seized from the place of occurrence. 11 Exhibit- F3 One blue color blanket with floral prints (yellow-orange-red-white) said to be seized from the place of occurrence. 12 Exhibit- F4 One red-black floral printed light brown color bed cover said to contain blood stain. 13 Exhibit- F5 One violet color Manipuri Pachhra said to be seized from the place of occurrence. 14 Exhibit- F6 One ash color pant said to be the wearing apparel of the deceased, Manika Sinha. 15 Exhibit- F7 One long navy blue jeans pant said to be the wearing apparel of the accused person, Sajal Sarkar 16 Exhibit- F8 One black and white full sleeve ganjee said to be the wearing apparel of the accused person, Sajal Sarker. 11. Report No. SFSL. No. 254/11, BIO/SERO No. 103/11 Date 29.08.2011. The exhibits marked E10, B, F1, F3, F4, F5, F6, F7 and F8 were examined by visual examination under different light sources, Acid phosphates test and Microscopic examination for detection of semen/seminal stain/spermatozoa of human origin. The exhibit marked E7 was examined by Starch-Iodine test for detection of saliva. The exhibits marked E7 and B were further examined by absorption inhibition test for detection of blood group from saliva stain and semen stain respectively. The exhibits marked E8, A, F1, F2, F3, F4, F5, F6, F7 and F8 were examined by Tetramethyl Benzidine(TMB) test, Phenolphthalein test and Takayama test for detection of blood. The exhibits marked A, F1, F2, F3, F4 and F6 were further examined by Gel diffusion test and Absorption elution test for origin and grouping of blood respectively. The exhibits marked E9, C, D, F2, F3, F4, F5 and F6 were examined by visual examination and Microscopic examination for detection and analysis of hairs. Based on the examination, the results obtained are given below: 1. Seman/seminal stain/spermatozoa of human origin could not be detected in the exhibits marked E10, F1, F3, F4, F5, F6, F7 and F8. 2. Spermatozoa of human origin could be detected in the exhibit marked B. 3. Blood group of the exhibit marked B could not be determined. 4. Blood stain of human origin could be detected in the exhibits marked A, F1, F2, F3, F4 and F6. 5. Blood stain could not be detected in he exhibits marked E8, F5 and F7. 6. Blood group of exhibit marked A could be determined as O group. 7. Blood group of the exhibit marked B could not be determined. 4. Blood stain of human origin could be detected in the exhibits marked A, F1, F2, F3, F4 and F6. 5. Blood stain could not be detected in he exhibits marked E8, F5 and F7. 6. Blood group of exhibit marked A could be determined as O group. 7. Blood group of exhibits marked F1, F2, F3, F4 and F6 could be determined as A group. 8. No hair could not be detected in the exhibits marked F2, F3, F4, F5 and F6. 9. Human public hair could be detected in the exhibits marked C and D. 10. Human hair could be detected in the exhibit marked E9. 11. Saliva could be detected in the exhibit marked E7. 12. Blood group of the exhibit marked E7 could not be determined." 8. On close scrutiny of the evidence and materials and having heard the learned counsels appearing for the parties to the lis, it has become apparent that in the present case there is no direct evidence to connect the accused with the commission of offence and the prosecution case entirely rests on circumstantial evidence. The Apex Court as well as this Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: " (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should forma chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [(Reference Gambhir v. State of Maharashtra[ (1982) 2 SCC 351 : AIR 1982 SC 1157 ], Rama Nand v. State of H.P.[ (1981) 1 SCC 511 : AIR 1981 SC 738 ], Prem Thakur v. State of Punjab [ (1982)3 SCC 462 : AIR 1983 SC 61 ], Earabhadrappa v. State of Karnataka[ (1983) 2 SCC 330 : AIR 1983 SC 446 ], Gian Singh v. State of Punjab[1986 Supp SCC 676: AIR 1987 SC 1921 ] and Balwinder Singh v. State of Punjab[ (1987) 1 SCC 1 : AIR 1987 SC 350 ]." 9. Looking back to the case of Hanumant Govind Nargundkar Vs. State of M.P., AIR 1952 SC 343 we may profitably take into ac-count the following observations of the Supreme Court: (AIR pp. 345-46, para 10) "10. ....It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, 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. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 10. Again, we may gainfully take note of the celebrated decision of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 , where in the Supreme Court while dealing with circumstantial evidence held that the on us was or the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The Supreme Court in that case had laid down the following conditions which must be fully established before convicting a person relating to a case based on circumstantial evidence: (SCC p. 185, para 153) "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Supreme Court in that case had laid down the following conditions which must be fully established before convicting a person relating to a case based on circumstantial evidence: (SCC p. 185, para 153) "(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must or should" and not 'may be" established; (ii) 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 guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) 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." 11. A reference may also be made to a decision of the Apex Court in C. Chenga Reddy Vs. State of A.P., (1996) 10 SCC 193 , wherein it was observed thus: (SCC pp. 206-07, para 21). "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 12. In. Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Apex Court held asunder: (SCC p. 689, para 12) "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. In. Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Apex Court held asunder: (SCC p. 689, para 12) "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The same principles were reiterated in Sunil Clifford Daniel v. State of Punjab, [ (2012) 11 SCC 205 ], Sampath Kumar v. Inspector of Police, [ (2012) 4 SCC 124 ], and Mohd. Arif v. State (NCT of Delhi, (2011) 13 SCC 621 )] and a number of other decisions." 13. In Kali Ram Vs. State of H.R., (1973) 2 SCC 808 , the Supreme Court observed thus: (SCC p. 820, para 25) "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence." 14. It would be apposite to again refer the judgment of the Apex Court in Sharad Birdhichand Sarda(supra) wherein the Supreme Court observed thus: (SCC pp. 127-28) "Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence." 15. Thus, in view of the aforesaid principles laid down by the Apex Court we may un-hesitantly hold that before convicting an accused the Court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances there in are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. 16. Now, keeping in mind the above settled propositions of law, let us re-examine the evidence of the prosecution witnesses. While convicting the appellant, the learned Sessions Judge had arrived at the following findings:. "On scrutiny and evaluation of the evidence on record some circumstances come out for implicating the accused. The first circumstance is the presence of the accused in the house of the deceased; The second circumstance is the entry of the accused in the house of the deceased in the noon time and departure from that house; The third circumstance is the suspicious movement of the accused seen by the witnesses; and The fourth circumstance is the absconsion of the accused just after the occurrence. Apart from this there is evidence of giving confessional statement by the accused but that confession though relevant is not admissible as given before the Police. Further the circumstance that comes out from the evidence on record it is transpired that none the else except the accused was responsible for commission of rape and murder on the victim." 17. In view of the aforesaid findings returned by the learned trial Judge, firstly, we are to examine whether the presence of the accused in the house of the deceased or his entry in the house has been established by cogent evidence. In view of the aforesaid findings returned by the learned trial Judge, firstly, we are to examine whether the presence of the accused in the house of the deceased or his entry in the house has been established by cogent evidence. The statement of PW2 that being called by Bimal Sinha (PW4) the appellant came to their house for wood-cutting and that the statement of PW2 that her sister-in-law, Rekha Sinha (PW14) had seen the appellant to enter into her house appears to be the first time statement made by her before the trial Judge. Being confronted with cross-examination she admitted that these statements are not found in her statements recorded under Section 161 of CrPC. 17.1. Similarly, the deposition of PW4 that the appellant wanted to know from him that who would go to the temple and who would stay in the house is also found to be the first time statement made by this witness in course of trial. 17.2. The statement of PW5 that while he was going to market he had seen the accused running away and on being asked the accused replied that he was running from the house of the informant as there was none in the house is also found to be the first time statement made before the trial Judge in course of trial. When his attention was drawn to his statement recorded under Section 161 of CrPC it was found to be absent. 18. In our considered view, the prosecution witnesses as stated above have made major improvements in their statements in course of trial, which they did not state in course of their examination under Section 161 of CrPC. As such, the presence of the accused in the house of the deceased and the second circumstance that the accused had entered into the house of the deceased in the noontime and his departure from that house have not been established beyond reasonable doubt. 19. The evidence of PW13 deposing that he asked the accused where he was going and at that time, according to him, his movement was suspicious. According to us, on the basis of this statement with out something more, one person can-not be held to be guilty of commission of such offence, like rape and murder. We are of the opinion, that it was his own perception when He perceived the movement of the accused as suspicious. According to us, on the basis of this statement with out something more, one person can-not be held to be guilty of commission of such offence, like rape and murder. We are of the opinion, that it was his own perception when He perceived the movement of the accused as suspicious. 20. The fourth circumstance as relied upon by the learned Sessions Judge is that of the absconsion of the accused just after the occurrence. This is no more res-integra that mere absconsion of a person from the site of offence after the incident is not enough to hold that person guilty of committing offence in absence of other circumstantial corroborating evidence, linking with the other circumstances prior to the incident and subsequent to the incident. This aspect came for consideration before the Apex Court in the case of Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406 as relied upon by Mr. Datta, learned counsel for the appellant. At para 22, the Supreme Court held thus: (SCC p. 415, para 22) "22. Whether the abscondence of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kumar Mondal v. State of W.B.[ (2010) 12 SCC 91 ] wherein the Court observed: (SCC pp. 98-99, paras 27-28) "27. In Matru v. State of U.P.[ (1971) 2 SCC 75 ] this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under: (SCC p. 84, para 19) "19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence." xxxxxxxx 28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience." While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru [ (1971) 2 SCC 75 ] and State of M.P. v. Paltan Mallah[ (2005) 3 SCC 169 ]." Having held so, the Supreme Court in Sujit Biswas (supra) further observed thus: (SCC p. 416, para 23) "23. Thus, in a case of this nature, the mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See Paramjeet Singh v. State of Uttarakhand [ (2010) 10 SCC 439 : AIR 2011 SC 200 ] and S.K. Yusuf v. State of W.B.[ (2011) 11 SCC 754 : AIR 2011 SC 2283 ]" Further, the absconsion of an accused cannot form the sole basis of conviction to an accused. 21. In the instant case what has transpired that the investigating officer has recorded the statement of PW14 after five days of the incident. The prosecution has failed to provide any satisfactory explanation as to why her statement was recorded after five days of the incident, when according to her she had seen the accused entering into the house of the deceased. She could divulge the said fact immediately after the incident when the investigating officer had visited the place of offence at the house of the informant (PW1). 21.1. From the deposition of PW14, it is revealed that she came to the house of her brother-informant(PW1) and saw the dead body of the victim. We have noticed her further statement that she told all of her relatives present there that the crime was committed by none else than the appellant According to us, this statement made by PW14 should not be believed for the reason that if she would have made such statement at that instance, then, there was no reason to lodge the FIR against the unknown assailants. It could be revealed in the complaint itself. In view of this, this statement of PW14 lacks credence. The delay of recording her statement, in our opinion had opened enough space to concoct and fabricate the story. Moreso, if PW14 would have made this statement, then, PWs 1, 2 and 4 must have divulged this fact to the investigating officer while their statements were recorded under Section 161 of CrPC. 21.2. More importantly, the striking feature of the instant case is that from the postmortem and medical examination of the victim-girl, it is abundantly substantiated that before murder, the victim was forcibly raped. There are so many injuries found on the person of the victim. 21.2. More importantly, the striking feature of the instant case is that from the postmortem and medical examination of the victim-girl, it is abundantly substantiated that before murder, the victim was forcibly raped. There are so many injuries found on the person of the victim. Her hymen along with labia major a and minor a were found to be ruptured and there were multiple tears found on the vaginal mucosa and other parts in and around the vagina. It is revealed that substantial bleeding was seen on the vagina. There are biting marks found in her breasts. 22. As we said earlier that the investigating officer had seized all wearing apparels of the victim just after the commission of offence. He also seized the bloodstained bed-sheet and blanket, and also arranged for collection of sample of vaginal swab and saliva of the victim for forensic test. The sample of semen/spermatozoa also was collected by the investigating officer. But, during scientific examination, the doctor did not find the semen/spermatozoa of the appellant mixed with the vaginal swab of the victim. Further, the blood sample taken out from the appellant did not match the bloodstains found in the wearing apparels of the victim as well as the bed-sheet and blanket which were seized from the cot where the body of the victim was lying. 23. In our independent analysis of the evidence on record, according to us, the circumstances as projected by the prosecution to establish the charges against the appellant, if taken cumulatively, are found to be deficient to draw an inference towards the guilt of the accused beyond reasonable doubt, and in other words, the circumstances are found to be inconsistent to draw the exclusive hypothesis of guilt of the accused-appellant. 24. Accordingly, the judgment of conviction and sentence as afore-stated, passed by the learned Sessions Judge cannot sustain and the same are hereby set aside. 25. In the result, the instant appeal stands allowed and the appellant is acquitted from the charges Jevelled against him and he be set at liberty forthwith. Issue release order accordingly. Send down the LCRs.