Supreme Court of India
Santosh Kumar Singh vs State Th. Cbi on
6 October, 2010
Author: H S Bedi
Bench: Harjit Singh Bedi, Chandramauli
Kr. Prasad
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 87 OF 2007
Santosh Kumar Singh ....Appellant
Versus
State thr. CBI ...Respondent J U D G M
E N T
HARJIT SINGH BEDI,J.
This appeal arises out of the following
facts:
1. The deceased, Priyadarshini Mattoo,
was residing with her parents at B-10/7098, Vasant Kunj, New Delhi
and was a student of the LL.B. course at the University of Delhi
Campus Law Centre, and had at the relevant time completed the 5th
Semester and was in the final 6th Semester. The appellant, Santosh
Kumar Singh had also been a student in the same faculty and had
completed his LL.B. in December 1994. It appears that the appellant
had been attracted to the deceased and even though he had passed out
from the Law Centre in 1994, he had continued to visit the campus
even thereafter on his Bullet Motorcycle bearing Registration Number
DL-1S-E/1222.
- As per the prosecution story, the appellant harassed and intimidated the deceased and despite her requests and then her remonstrations, did not desist from doing so. The deceased thereupon made several complaints against the appellant in different Police Stations during the year 1995 on which he was summoned to the Police Station and was advised to behave properly and a Personal Security Officer, Head Constable Rajinder Singh PW-32, was also deputed for the security of the deceased. It appears that as a consequence of the complaints against him, the appellant too retaliated and made a report to the University on 30th October 1995 alleging that the deceased was pursuing two courses simultaneously which was in violation of the University Rules and when no action was taken he sent two reminders dated 4th December 1995 and 20th December 1995 to the University as well. A show cause notice was issued to the deceased and in response thereto she submitted her reply dated 1st December 1995 and during the pendency of these proceedings, the result of her LL.B. 5th Semester examination was withheld. On 23rd January 1996 PW Head Constable Rajinder Singh, the PSO, did not turn up at the residence of the deceased at the stipulated time on which she left for the University in her car along with her parents PW-1 Mr. C.L. Mattoo and PW-44 Mrs. Rageshwari Mattoo who had to visit the Tis Hazari Courts to attend to some civil proceedings. The parents were dropped off at Tis Hazari at 10.15 a.m. Head Constable Rajinder Singh, however, reached the Faculty of Law directly and saw the appellant present there. The deceased attended the class from 11.15 a.m. to noon and thereafter accompanied by the Head Constable left the faculty for Tis Hazari but finding that her parents had already left the court, she returned to her residence at about 1.45 p.m. and directed Head Constable Rajinder Singh to report again at 5.30 p.m. The deceased then had her lunch whereafter Virender Prasad, the domestic help, left the house at about 2.30 p.m. to meet his friend Vishnu Prasad @ Bishamber at the residence of PW-6 Lt.Col S.K.Dhar at Safdarjung Enclave and returned to Vasant Kunj at 4.55 p.m. He then took the dog for a walk in the colony. The appellant came to the residence of the deceased at about 4.50 p.m. carrying his helmet in his hand and was seen by PW-2 Kuppuswami. PW-3 Jaideep Singh Ahluwalia, Security Supervisor in the colony also saw the appellant at 5.30 p.m. near the residence of the deceased, PW-43 and O.P.Singh, Advocate also noticed the appellant riding out of the park area of B-10, Vasant Kunj at the same time. Head Constable Rajinder Singh PW reached the residence of the deceased at about 5.30 p.m., as directed, along with Constable Dev Kumar. The Head Constable pressed the call bell but eliciting no response from inside, he went to another door which opened onto the courtyard and knocked but again to no effect. As the door was slightly ajar the two entered the bedroom of the deceased and found her dead body lying under the double bed. The Head Constable immediately informed Police Station, Vasant Kunj about the incident on which SHO Inspector Surinder Sharma arrived at the site and a daily diary report (rojnamcha) to the above facts Ex.PW-18/A was also recorded at 5.45 p.m. Inspector Lalit Mohan, Additional SHO, Vasant Kunj was entrusted with the investigation on which he along with Sub-Inspector Sushil Kumar, Sub-Inspector Padam Singh, Head Constable Satish Chand and several other police officers too reached the residence of the deceased and found her dead body lying under the double bed with the cord of the electric heat convector tied around her neck. He also noticed blood stains around the body. A case under section 302 of the IPC was thereafter registered at Police Station, Vasant Kunj, on the complaint of the father of the deceased, in which the day's happenings were spelt out. It was further noted that after completing their work in the Tis Hazari Courts he and his wife had visited Safdarjung Enclave and from there he had gone on to attend an official meeting at Vikas Kuteer, ITO whereas his wife had visited the All India Institute of Medical Sciences and it was on returning to his residence at 7.30 p.m. that he found that his daughter had been murdered.
3. During the course of the inquest
proceedings initiated by Inspector Lalit Mohan the crime scene was
photographed and some hair found on the dead body, broken pieces of
glass and blood stains near the dead body were recovered. The
electric cord of the heat convector which had been used for the
strangulation was also taken into possession. The statements of PW-6
Lt. Col. S.K. Dhar, PW-1 Mr. C.L. Mattoo, the complainant, and PW-44
Mrs. Rageshwari Mattoo, mother of the deceased, and several others
were recorded by Inspector Lalit Mohan and the dead body was then
sent to the Safdarjung Hospital. In her statement, Mrs. Rageshwari
Mattoo raised the suspicion that the appellant was the culprit and he
was joined in the investigation during the night intervening 23rd and
24th January 1996. He was also brought before Inspector Lalit Mohan
and he noticed tenderness on his right hand and an injury which was
not bandaged or plastered. He was also sent for a medical examination
and PW-23 Dr. R.K. Wadhwa of the Safdarjung Hospital examined him at
3.45 a.m. and found two injuries on his person - one a swelling on
the right hand dorsum lateral aspect, tenderness with crepitus and
the second, scar marks old and healed multiple both lower limbs and
on the chest. The Doctor also advised an X-ray of the right hand.
Nail scrapings and hair samples of the appellant were also taken and
handed over to Sub-Inspector Shamsher Singh and after the X-ray, a
fracture of the 5th metacarpal bone of the right hand was detected
and as per Dr. Wadhwa's opinion the injury was grievous in nature and
caused by a blunt weapon. The appellant was thereafter allowed to go
home and was directed to visit the Police Station at 9 a.m. on the
25th January 1996. The dead body was also subjected to a post-mortem
on 25th January 1995 at the Safdarjung Hospital by a Board of Doctors
consisting of Dr. Chander Kant, Dr. Arvind Thergaonkar and PW- 33 Dr.
A.K. Sharma who in their report Ex.PW33/B found 19 injuries on the
dead body and also observed that the private parts showed black,
curly non-matted pubic hair, the hymen intact with no tearing present
and admitting only one finger. The Doctors also took two vaginal
swabs and slides were duly sealed, the swabs and slides in a glass
bottle as well as samples of the blood and hair. The clothes of the
deceased were also taken into possession and sealed. The Board also
opined that the death was a result of strangulation by ligature and
that the injuries on the dead body were sufficient to cause death in
the ordinary course of nature.
4. On the 25th January 1996 itself,
after the completion of the post-mortem proceedings, Inspector Lalit
Mohan searched the house of the deceased and picked up a greeting
card Ex.PW 29/B said to be written by the appellant from her room.
The Inspector also seized a helmet with the visor missing and
indicating that it had broken and the Bullet motorcycle belonging to
the appellant. The specimens of his handwriting Exs.PW48/E1, E2 and
E3 were also taken by the Inspector.
5. It appears that as the murder had
taken place in very sordid circumstances and the fact that the
appellant was the son of very senior police officer serving in the
State of Jammu & Kashmir and was on the verge of a posting as
Additional Commissioner of Police, Delhi, led to a hue and cry which
was endorsed by the parents of the deceased as they apprehended that
they would not get a fair deal from the Delhi Police. Faced with this
situation, the Delhi Government itself requested the Central Bureau
of Investigation vide letter dated January 24, 1996 that the
investigation be taken over by that agency. As per the prosecution,
this decision was taken by the Government on the specific request of
the Commissioner of Delhi Police to the Lt. Governor who referred the
same to the Delhi Government.
6. Inspector Lalit Mohan thereupon
produced the appellant before PW-50 DSP Shri A.K.Ohri of the CBI and
the subsequent investigation was made by the DSP with the assistance
of several other officers from the CBI. The underwear of the
appellant was also seized by the CBI as he represented that he had
been wearing the same underwear for the last couple of days. DSP Ohri
also visited the crime scene on the 26th January 1996 but did not
find Mr. C.L.Mattoo, the father of the deceased, present. On the next
day, he recorded the statement of Virender Parshad, the domestic
servant and also directed Shri D.P.Singh, DSP to conduct the house
search of the appellant. On the 28th January 1996, a request
Ex.PW34/A was made by Mr. S.K.Bhatnagar Additional Director of the
CBI to Dr.A.K.Gupta, Medical Superintendent, Dr.R.M.L. Hospital for
procuring the blood samples of the appellant. DSP Ohri along with the
other staff took the appellant to the hospital and met PW-34 Dr.
N.S.Kalra, Head of the Biochemistry Department and two blood samples
of 10 ml. each were taken by Ms. Godavari Mangai, Lab Assistant and
were handed over to Dr. Kalra. These samples as well as the other
case property collected by DSP Ohri or entrusted to him by Inspector
Lalit Mohan were deposited with the Moharrir Malkhana on the 29th
January 1996 and preparations were made to refer the matter for a DNA
test. Specimen hand writings Ex.PW24/A1 to A21 of the appellant were
also obtained once again this time by the CBI. On 30th January 1996
Shri M.L.Sharma, Joint Director, CBI addressed a letter to the
Director, CCMB, Hyderabad requesting for DNA profiling. Several
articles were accordingly entrusted to PW-39 Sub-Inspector
R.S.Shekhawat on 31st January 1996, they being:
1. One sealed parcel containing clothes
of the deceased such as T-shirt, brassiere, jeans and underwear.
2. One sealed packet containing
underwear of the accused Santosh Kumar Singh.
3. One sealed jar containing vaginal
swabs/vaginal slides of the deceased and
4. The blood samples of the appellant
taken in the Dr.R.M.L.Hospital.
The Sub-Inspector thereafter flew to
Hyderabad on 31st January 1996 and deposited the aforementioned
articles in the Office of Dr. Lalji Singh, Officer on special duty at
the CCMB, Hyderabad on the next morning and an acknowledgement
Ex.PW49/A relating to the following articles was obtained:
1. One sealed parcel containing clothes
supposed to be of the deceased, namely, T-Shirt, brassiere, jeans and
underwear.
2. Vaginal swabs/vaginal slides
supposed to be of the deceased.
3. One thermocole box containing 4
vials marked as S-1,S-2,S-3 and S-4 supposed to be blood of the
accused.
The underwear of the appellant was,
however, returned by Dr. Lalji Singh as it was not relevant for the
DNA finger printing test. On the 1st February, 1996 DSP Ohri
re-visited the house of the deceased and recorded the statement of
Mrs. Rageshwari Mattoo and Hemant Mattoo, the brother of the deceased
who told the investigating officer that the appellant had been
noticed by PW-2 Shri Kuppuswami standing near their house shortly
before the time of the murder. The DSP then went to the house of Shri
Kuppuswami but he was away. He, however, recorded his statement on
the 4th February 1996. During the course of the investigation, the
appellant disclosed that he had received the injury on the metacarpal
bone in an accident on the 14th January 1996 and had been treated at
the Nirmay Diagnostic Centre and Hindu Rao Hospital. Inspector Terial
was thereupon sent to the Centre to collect his medical records. They
were duly collected on the 9th February 1996 and 16th February 1996
and deposited in the malkhana of the CBI. On 20th February 1996 a
letter Ex.PW27/A was addressed to the Medical Superintendent,
Safdarjung Hospital seeking an opinion about the injury suffered by
the appellant on his hand. An opinion was rendered by PW-28 Dr. Mukul
Sinha and PW-27 Dr. G.K.Choubey on the 22nd February 1996 that the
injury seemed to be fresh as there was no evidence of any callus
formation. On the completion of the investigation, the appellant was
charged for offences punishable under Sections 376/302 of the IPC. He
pleaded not guilty and claimed trial.
7. As there was no eye witness to the
incident, the prosecution placed reliance only on circumstantial and
documentary evidence. After 51 witnesses had been examined by the
prosecution and final arguments were being heard, the trial court
decided that it would be in the interest of justice to call Dr.
G.V.Rao of the CCMB as a court witness as he, in consultation with
PW-48 Dr. Lalji Singh, had conducted the DNA test. His statement was
recorded as CW -1.
In the course of a rather verbose
judgment, the trial court noted that there were 13 circumstances
against the appellant. We quote herein below from the judgment:
“1.The accused had been continuously harassing the deceased right
from the end of 1994 to January 1996, a few days before her death.
2. The accused had more than once given
an undertaking that the accused would not harass the deceased in
future while admitting that the accused had been doing so earlier.
3. The motive of the accused was to
have the deceased or to break her.
4. On the day of occurrence, the
accused was seen in the premises of Faculty of Law, University of
Delhi in the forenoon, where the deceased had gone to attend LL.B.
class. While the accused was no more a student of Faculty of Law at
that time.
5. At the crucial time before murder,
i.e. about 5 p.m. on 23.1.96, the accused was seen outside the door
of the flat of the deceased, i.e. B-10/7098 with helmet in his hand
which had a visor.
6. On the day of occurrence after
murder, the accused had reached late to attend class at Indian Law
Institute, Bhagwan Dass Road, where the accused was a student too.
7. Immediately after the murder, the
mother of the deceased had raised suspicion that the accused had a
hand in the murder of her daughter.
8. When the accused joined
investigation on the night between 23/24.1.96, the accused had an
injury
on his right hand. There was swelling
and fracture on 5th metacarpal of right hand. There was no plaster or
bandage on his hand. That injury was fresh, having been caused 24 to
38 hours. The blood pressure of the accused at that time was high
which showed anxiety.
9. DNA Finger Printing Test
conclusively establishes the guilt of the accused.
10. On 25.1.96, the helmet Ex.P.3 of
the accused which was taken into possession had broken visor. On
23.1.96 before murder, it was found by PW2 Shri Kuppuswami, PW
Personal Security Officer Rajinder Singh that the helmet of the
accused had a visor. Violence was detected on both sides of visor.
Helmet was besmeared with a spec of blood. At the spot pieces of
visor were found near the body of the deceased besmeared with her
blood.
11. The deceased had 19 injuries on her
person besides three broken ribs. These injuries were suggestive of
force used for rape. A tear mark over the area of left breast region
on the T-shirt of the deceased suggested that the force was used for
molestation.
12. The accused took a false defence
that fracture on the hand of the accused was sustained by the accused
on 14.1.96 and it was not a fresh injury. The accused also gave false
replies against proved facts.
13. The influence of the father of the
accused resulting in deliberate spoiling of the case.”
The Trial Court rendered its opinion on
the circumstances 1 to 3 as under:-
(i) “ The accused in January,
February 1995 tortured the deceased by following her upto the
residence at Safdarjung Enclave at the place of Colonel SK Dhar and
also by telephoning at All India Institute of Medical Sciences and at
her residence.
(ii) On 25.2.95 the accused followed
the deceased and tried to stop the car of the deceased by shouting at
her which was the cause of lodging the report Exh. PW6/A. The accused
submitted the apologies Exh.PW6/B and Exh.PW6/DB.
(iii) The accused took the false plea
that the accused was going to IIT on the said date. The accused also
took a false stand that there was no friendship between the accused
and the deceased. The plea of the accused that such report was result
of refusal of accused to allow the deceased to sing in the Cultural
Festival of the University has not been substantiated. The plea is
false to knowledge of the accused. (iv) The subordinate staff of
Delhi Police attempted to assist the accused during investigation and
during trial. Sh. Lalit Mohan Inspector was instrumental in creating
false evidence and false defence of the accused. The witness of
police including Rajendra Kumar Sub Inspector deposed falsely with
respect to role assigned as an agent of law in the matter of
complaints in writing preferred by the deceased. The subordinate
staff of Delhi Police has not discharged the agency of law in
accordance with basic principles of fair play in action. Had
Rajinder Kumar SI and the SHO of Police Station RK Puram, SHO Vasant
Kunj, ACP Satinder and Parbhati Lal acted in accordance with law
vis-`-vis accused, as they act towards an ordinary citizen whose
father is not a senior officer in police department perhaps the
incident would not have occurred.
(v) The accused went to the house of
the deceased at B-10, Vasant Kunj, New Delhi and banged the door of
the house of the accused when the deceased was alone at home.
(vi) On 6.11.95, the accused tortured
the deceased in the Campus Center of Law which resulted in lodging of
FIR at police station, Maurice Nagar, Delhi.
(vii) The accused even mentally
tortured the deceased in December, 1995.
(viii) The accused preferred petition
against the deceased to the University against her appearing in both
examinations of M.Com and LLB in order to pressurize the deceased to
succumb to the ulterior design and motive of the accused.
(ix) The accused had the intention to
have the deceased and to convert the said intention in reality and if
it is not possible on account of attitude of the deceased not allow
the deceased to be of anybody else. The facts proved and the acts of
the accused lead to inference that the accused had the motive to have
the deceased at all event and failing to not to allow her to be of
anybody else. The state has established the motive.”
8. The court observed that the
continuous stalking of the deceased by the appellant despite
complaints to the police showed his utter disregard of the rule of
law and in conclusion held that “circumstances No.1, 2 and 3 are
thus held to have been proved beyond any shadow of doubt by the
prosecution.” The court then examined circumstances Nos.4, 5 and 10
cumulatively and held that the appellant had indeed been seen in the
University Campus Law Centre on the 23rd January 1996 riding his
motorcycle wearing a helmet with an intact visor and that on the same
day in the afternoon he had been seen by PW2 Sh. Kuppuswami at the
gate of the house of the deceased carrying a helmet with a visor. The
court further opined that when the helmet had been seized on the 25th
January 1996 it was seen to be in a badly damaged condition and that
the broken pieces of the visor which had been recovered from the site
of the crime besmeared with the blood of deceased conclusively proved
that the visor had been broken during the commission of the murder as
it had been used to bludgeon the deceased into submission.
9. The court, accordingly, held that
these circumstances showed that the appellant had been seen around
the house of the deceased at 4.50 pm. The High Court also
supplemented these findings by pointing out that as the appellant was
no longer a student of the Law Faculty of the University of Delhi he
had a duty to explain as to why he had visited the University on the
23rd January 1996. The trial court nevertheless did not find any
conclusive evidence against the appellant with respect to
circumstance No.6 observing that in view of the uncertain traffic in
the National Capital Territory of Delhi the timing factor could not
be taken as a conclusive one. The High Court, however, differed with
trial court on this aspect as well and held that the appellant had
attended his classes in the Indian Law Institute on 23rd January 1996
and had been late for the class and this circumstance showed that
this had happened as he had been involved in committing the rape and
murder. While dealing with circumstance No.8, the trial court
observed that DSP Ohri had not taken into account the defence story
that the appellant had suffered an injury on the metacarpal about 10
days prior to the murder and had thereby not given an opportunity to
the court to review the evidence on this aspect and had, thus, not
acted in a fair manner. The court then went on to say that “the
accused too has not assisted the court in discharging the onus which
was upon him to justify the defence taken by him in the matter of
alleged injury. Consequently, on the face of an injury, on
5th me tacarpal on the date of crime of murder, with
swelling and tenderness, the court is of the view that the injury
possibly is fresh but on account of lack of fair play on the part of
the CBI, it cannot say that the defence of the accused is not
plausible.” This finding too has been reversed by the High Court in
appeal on the plea that the onus to prove
his defence lay on the appellant and he had admittedly not
led any evidence to support his plea. The High Court, accordingly,
held that the finding of the trial court was perverse on this aspect.
The trial court then went on to circumstance No.9 and evolved its own
theories and after a huge discussion, rejected the DNA report given
by the CCMB, Hyderabad as also the evidence of Dr. Lalji Singh and
Dr. G.V. Rao. This finding has also been reversed by the High Court
by observing that though there appeared to be no physical evidence of
rape on the body but the DNA test conducted on the vaginal swabs and
slides and the underwear of the deceased and the blood sample of the
appellant, it was clear that rape had been committed, and that too by
him. The High Court held that it would be a
dangerous doctrine for the court to discard the evidence of an expert
witness by referring to certain texts and books without putting those
texts to the expert and taking his opinion thereon. The
High Court also reversed the finding of the trial court that the
vaginal swabs and slides and the blood samples of the appellant had
been tampered with. The trial court and the High Court both held
circumstance No.11 in favour of the prosecution and it was observed
that the deceased was alone at the time of incident and that she had
been brutally attacked with the helmet which had been used with great
force to cause as many as 19 injuries, including three broken ribs.
On circumstance No.12, the trial court gave a finding that there was
no conclusive evidence to show that the injury on the metacarpal had
been suffered by the appellant in the incident on the 14th January
1996 as the evidence of Dr. Ashok Charan, the Radiologist was not
entirely credible. The High Court has, however, reversed this
finding. The Trial Court then examined circumstance No.13 and found
that though there was nothing on record to show the direct
interference of the father of the appellant in the investigation but
as he was likely to be posted as a senior police officer in the Delhi
Police, the possibility that the lower investigating staff were
influenced by his status was a factor which could not be ruled out.
The trial court also held that Inspector Lalit Mohan, the first
investigating officer and a member of the Delhi Police had done no
credit to himself but lauded the Commissioner of Police, Delhi for
suggesting that the matter be handed over to the CBI, to obviate any
suspicion of an unfair investigation.
10. A perusal of the above discussion
would reveal that the trial court had itself held circumstances 1 to
5, 7 and 10 to 13 in favour of the
prosecution, circumstance No.8 has been held in a manner which could
fall both ways whereas circumstance No.6 has been held to be of no
consequence. The High Court has, however, held all 13 circumstances
as having been proved in favour of the prosecution. The trial court,
accordingly, on the basis of findings recorded particularly
circumstance No.9, held that the case against the appellant could not
be proved and acquitted him. The matter was taken in appeal to the
High Court and the High Court has reversed the judgment of the trial
court, as already indicated above and awarded a death sentence. It is
in this background that this matter is before us. We have dealt with
the arguments in the sequence in which they have been projected by
Mr. Sushil Kumar, the learned senior counsel for the appellant.
11. Mr. Sushil Kumar has first and
foremost submitted that circumstances 8 and 12 with regard to the
defence story projected by the accused were first required to be
considered and in the light of the fact that the trial court had, in
a manner, rejected these circumstances as supporting the prosecution,
it could not be said that the injury suffered by the appellant on his
right hand fixed his presence at the spot. He has referred us to the
document D-61 an opinion dated 24th January 1996 of PW-23 Dr. Ranjan
Wadhwa which revealed a swelling on the right hand on the dorsal and
lateral aspect, tenderness plus crepitus of the 5th metacarpal and
had suggested an X-ray of the right hand. He has also taken us to the
evidence of the Doctor to argue that the X-ray had, indeed, been done
and the film had been examined by Dr. A.Charan, PW-28 Dr. Mukul Sinha
and PW-27 Dr. G.K.Chobe. He has referred to the statement of Dr.
Mukul Sinha to point out that the X-ray performed on the 14th January
1996 at Nirmay Diagnostic Center and the other one at the Safdarjung
Hospital on 24th January 1996 could not be said to be of the same
person as the picture had been taken from different angles. Mr.
Sushil Kumar has, further, brought to our specific notice that as the
callus formation had set in, the injury could not be of the 24th
January 1996 and would have been sustained much earlier. He has also
referred us to the statement of Dr. Chobe who had examined the X-rays
of the appellant taken on 14th January 1996 and 24th January 1996 and
pointed out that even this Doctor could not give a categoric opinion
as the instructions given by him to the investigating agency to probe
the matter further in a particular direction, had not been complied
with. It has, accordingly, been submitted that in the face of no
other evidence produced by the prosecution, there was nothing to
suggest that the fracture of the metacarpal had happened on the 24th
January 1996 and the evidence on the contrary indicated that this
fracture had been suffered during an accident on the 14th January
1996.
12. Mr. P.P. Malhotra, the learned ASG
has, however, controverted the plea raised on behalf of the
appellant. It has been pointed out that the evidence of Dr. Wadhwa,
Dr. Mukul Sinha and Dr. G.K.Chobe, when read cumulatively, proved
that the injury had been suffered by the appellant on the 24th
January 1996 and was, therefore, fresh at the time when the Doctors
had examined him on that day.
13. We now examine the evidence on
these two circumstances. As already mentioned above, the medical
report dated 24th January 1996 recorded by Dr. Wadhwa refers to a
swelling on the right hand at the 5th metacarpal. In the very next
line in the same report there is a reference to a scar mark old
healed multiple lower ribs. It is apparent therefore, that the Doctor
himself noticed that the scar mark was an old and healed injury,
whereas the swelling on the right hand revealed tenderness and
presence of the crepitus. When this Doctor came into the witness box
as PW23, an attempt was made to show that the condition of the injury
indicated that it was about 10 or 15 days old. This plea was
specifically denied by the Doctor. Dr. Mukul Sinha was, however, more
categoric when he stated that the presence of swelling on the right
hand was symptomatic of a recent injury and that after the
inflammation slowly subsided the soft provisional callus would start
forming from the third to the fourteenth day and due to the absence
of any callus formation on the 24th January 1996, it appeared that
the injury could not have been sustained on the 14th January 1996.
Dr. G.K.Chobe was still more emphatic. After reviewing the medical
report dated 24th January 1996 he put the maximum duration of the
injury between 48 to 72 hours and further deposed that a fracture of
the 5th metacarpal was generally produced by direct violence, the
most common factor being the striking of the hand against an opponent
during an altercation. He further clarified that in the case of a
fracture of the metacarpal the swelling would not remain for more
than 3 to 4 days and that the callus formation had not yet started as
the clicking sound which was known as crepitus was still noticeable
and which always remained till the callus was formed. Dr. Chobe also
made another significant statement. He pointed out that had the
incident happened on 14th January 1996 a plaster or bandage would
have been applied to the fracture but there was no indication as to
whether this line of treatment had been adopted. A perusal of this
evidence would reveal two striking facts, one, it confirms the
deposition of the other two doctors that because the injury was
recent the swelling on the fracture had not settled down, and two,
the callus formation had not yet started as the crepitus was still
present.
14. We see that the positive stand of
the appellant was that he had sustained the injuries on the 14th of
January 1996 in the course of a road
accident in which the visor of his helmet had also been broken.
Inspector Terial of the CBI accordingly collected certain documents
from the Nirmay Diagnostic Centre and the Bara Hindurao Hospital
where the appellant had allegedly been treated for the injuries
suffered by him. Statements of several doctors were also recorded.
These documents were deposited in the CBI Malkhana on the 9th
February 1996 and 16th February 1996. In the course of his evidence
PW DSP Ohri gave the above facts and further clarified that the
appellant's father had produced an X-ray film before him on the 20th
February 1996 and that he had also issued a notice to him to produce
the treatment record of the appellant within two days. We see that
the documents seized by Inspector Terial have been exhibited as
defence documents. We further see that a reading of these documents
does indicate that an X-ray was taken on the 14th January 1996.
Significantly however no Doctor of the Nirmay Diagnostic Centre or
Bara Hindurao Hospital had been summoned as a witness. The trial
court has held that the omission to produce the defence evidence in
Court was unbecoming of the investigating agency but that the
appellant himself was also guilty of not producing any evidence in
his defence and by some curious reasoning has opined that :
“The accused too has not assisted the
court in discharging the onus which was upon him to justify the
defence taken by him in the matter of alleged injury. Consequently,
on the face of an injury, on 5th
metacarpal on the date of crime of
murder, with swelling and tenderness, the court is of the view that
the injury possibly is fresh but on account of lack of fair play on
the part of the CBI, it cannot say that the defence of the accused is
not plausible. Therefore this circumstance will have to be considered
in both ways in the cumulative effect of various circumstances to
consider if the case is proved beyond reasonable doubt.”
15. We are
indeed astonished at these remarkably confusing and contradictory
observations, as the CBI was not called upon to prove the
defence of the appellant. The CBI had fairly secured the documents
which could prove the appellant's case and they were put on record
and it was for the defence to use them to its advantage. No such
effort was made. Moreover, we are unable to see as to how these
documents could have been exhibited as no one has come forward to
prove them. It has to be kept in mind that the appellant was a lawyer
and his father a very senior Police Officer, and we are unable to
understand as to why no evidence in defence to prove the documents or
to test their veracity, had been produced. In this
background, we find that the medical evidence clearly supports the
version that the injury had been sustained by the appellant on the
24th of January 1996 during the course of the rape and murder. This
finding raises yet another issue. It has been held time and again
that a false plea taken by an accused in a
case of circumstantial evidence is another link in the chain.
In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10) SCC 681
it has been held : “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.
and again “If an offence takes place
inside the privacy of a house and in such circumstances, where the
assailants have all the opportunity to plan and commit the offence at
the time and in circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to establish the guilt
of the accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the courts. A
judge does not preside over a criminal trial merely to see that no
innocent man
is punished. A
judge also presides to see that a guilty man does not escape. Both
are public duties. The law does not enjoin a duty on the prosecution
to lead evidence of such character which is almost impossible to be
led or at any rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable of leading,
having regard to the facts and circumstances of the case.
Here it is necessary to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him.”
16. We, accordingly, endorse the
opinion of the High Court on circumstances 8 and 12. The onus to
prove his defence and the circumstances relating to his injury and
treatment were within the special knowledge of the appellant. He
could, therefore, not keep silent and say that the obligation rested
on the prosecution to prove its case.
17. Mr. Sushil Kumar has then argued
with emphasis, that the case rested primarily on the factum of rape
and if it was found that there was no evidence of rape, the case of
murder would also fall through. He has, accordingly, taken us to
circumstance No.9 which the trial court noted as under:
“DNA finger printing test
conclusively established the guilt of the accused.” He has first
pointed out that the post-mortem did not reveal any evidence of rape.
Reference has been made to the statement of PW33 Dr.A.K.Sharma, who
along with a Board of two other Doctors had performed the post-mortem
on the dead body on the 25th January 1996 at the Safdarjung Hospital
and it was observed that the deceased was wearing a full sleeved high
neck pinkish T-shirt with a small tear on the breast, blue coloured
jeans, one brassiere and underwear and woolen socks and though there
were a large number of injuries on the dead body and the local
examination of the private parts showed black, curly non matted pubic
hair, and an intact hymen, with no tearing. The Doctor was also
questioned as to whether the hymen would always be torn and ruptured
during the first sexual encounter and he explained that though this
would be the normal case but it was not always so and that the hymen
could remain unruptured even after repeated sexual intercourse for
certain reasons which he then spelt out. It has, accordingly, been
submitted that there was absolutely no evidence of rape detected
during the course of the examination. He has also pointed out that as
there were no semen stains on the dead body of the deceased or her
clothes and as the underwear of the appellant sent to the CCMB,
Hyderabad had been returned without examination and had been examined
thereafter in the Central Forensic Science Laboratory, Delhi and the
semen's stains found were of group A which was not the blood group of
the appellant, there were no evidence suggesting rape.
- It has, finally, been submitted that the observation of the High Court that the DNA test conclusively proved the involvement of the appellant in the rape was not tenable as it appeared that the vaginal swabs and slides which were allegedly taken from the dead body at the time of the post-mortem examination and the blood samples of the appellant taken under the supervision of PW Dr. N.S.Kalra had been tampered with. It has been argued that as per the findings of the trial court the record of the Malkhana with respect to the vaginal swabs and slides had been fudged and though these items had been handed over to the CBI officers on the 25th January 1996 they had been deposited in the Malkhana on the 29th January 1996 and no explanation was forthcoming as to how and why this delay had happened. It has also been submitted that as per the evidence of Dr. N.S.Kalra a request had been made to him by the CBI to take 2 samples of blood of 10 ml. each from the appellant but 2 samples of 10 ml. had been taken and transferred to 4 vials and when the vials had been opened at the CCMB, only 12 ml. of blood had been found, and this too cast a doubt on the prosecution case. It has finally been submitted that the tests conducted by the CCMB, Hyderabad were faulty and could not be relied upon.
19. The learned Additional Solicitor
General has, however, controverted the above submissions and has
pleaded that they were based on the supposition of a bias against the
appellant and that all those involved including the officials of the
CBI, the Doctors who had conducted the post-mortem examination, those
who had taken the blood samples and the Scientists of the CCMB were
in league to implicate him in a false case. He has further argued
that there was no evidence of tampering with the vaginal swabs and
slides which had been sealed by the Doctors and handed over to the
police and had been collected from the Malkhana by PW-39 Inspector
Shekhawat and taken to the CCMB, whereas the blood samples, on the
contrary, had been retained in the office of Dr. N.S. Kalra in the
RML Hospital and that Inspector Shekhawat had taken them from there
and gone straight on to Hyderabad and delivered them to the CCMB with
seals intact.
20. At the very outset, we must dispel
Mr. Sushil Kumar's rather broad argument that the primary allegations
were of rape whereas murder was a secondary issue in the facts of the
case and that the proof of murder would depend on proof of rape. We
see from the record that there is very substantial evidence with
regard to the allegations of murder simpliciter and have been dealt
with under circumstance No.11. We first see that right from the year
1994 to January 1996, that is a few days before the murder, the
appellant had been continuously harassing the deceased and that this
allegation has been proved by ocular and documentary evidence. We
also see that the appellant had been seen in the Faculty of Law,
University of Delhi on the morning of the incident and had no
business to be present at that place as he had passed out in the year
1994. He was also seen by PW- 2 Shri Kuppaswami outside the house of
the deceased at about 5 p.m. and was carrying a helmet with an intact
fixed visor, and was seen moving out of the Vasant Kunj Colony by two
witnesses soon after 5 p.m.
(though these witnesses ultimately
turned hostile). The only argument against PW-2 is that his statement
under Section 161 of the Code of Criminal Procedure had been recorded
after three days. We find nothing adverse in this matter as there was
utter confusion in the investigation at the initial stage. Moreover,
PW-2 was a next neighbour and a perfectly respectable witness with no
bias against the appellant. In addition, the recovery of the helmet
with a broken visor and the recovery of glass pieces apparently of
the visor from near the dead body and the fact that the appellant
himself sustained injuries while mercilessly beating the deceased
with his helmet (as per the F.S.L. Report Ex.PW50/H4) and causing 19
injuries including three fractured ribs, are other circumstances with
regard to the murder. Assuming, therefore, for a moment, that there
was some uncertainty about the rape, the culpability of the appellant
for the murder is nevertheless writ large and
we are indeed surprised at the decision of the Trial Judge in
ordering an outright acquittal. With this
background, we now examine the evidence leading to the charge of
rape.
21. It is the primary submission of Mr.
Sushil Kumar that the vaginal swabs and slides taken from the dead
body at the time of the post-mortem examination had been tampered
with and as there was some suspicion with regard to the blood samples
taken by Dr. N.S.Kalra on the 25th January, the DNA report too could
not be relied upon. This is a rather far
fetched plea as it would mean that not only the investigating agency,
that is the senior officers of the CBI and DSP Ohri in particular,
the doctors who had taken the vaginal swabs and slides, the doctors
and other staff who had drawn the blood samples, and the scientists
in Hyderabad had all been in a conspiracy to harm the appellant. To
our mind, this premise is unacceptable. We see from the
post mortem report Ex.PW33/B dated 25th January 1996 and the
endorsement thereon that one bundle containing a full sleeved high
neck pinkish violet colour T-shirt having a cut mark over the area of
the left breast region, one blue coloured jeans, one pair of woolen
socks, one white coloured brassiere and one blue coloured underwear
had been sealed and handed over to the investigating officer,
Inspector Lalit Mohan. It also finds mention that these items along
with two vaginal swabs and two slides had also been handed over to
the I.O. It has been submitted by Mr. Sushil Kumar that these items
had been retained by Inspector Lalit Mohan till the 25th of January
1996 and then handed over to PW-38 Inspector Sunit Kumar of the CBI.
Inspector Sunit Kumar, however, deposed that on the 29th January
1996, and on the direction of DSP Ohri, he had gone to the department
of Forensic Medicine, Safdarjung Hospital, and taken the bundle of
clothes and one jar containing vaginal swabs and slides duly sealed
and several other items as well and that a specimen of the seal had
also been obtained by him. It is, therefore, obvious that till 29th
of January 1996 the aforesaid articles remained in the custody of the
Safdarjung Hospital and that they were deposited in the malkhana on
the 29th January 1996.
22. We notice from the
cross-examination of Inspector Sunit Kumar that not a single question
had been put to him in the cross-examination doubting the receipt of
the aforesaid items from the hospital on the 29th January 1996. DSP
Ohri confirmed the evidence of Inspector Sunit Kumar Sharma that he
had received the case property from the hospital and it had been
deposited in the malkhana the same day. We have also examined the
photocopy of the Ex.PW47/A, which is the malkhana register. It first
refers to the various items taken by Inspector Sunit Kumar from the
hospital earlier that day including the clothes and there is some
overwriting with respect to the vaginal swabs and slides. Mr. Sushil
Kumar has thus raised a suspicion that the entry with regard to the
vaginal swabs and slides was an interpolation with no sanctity
attached to the semen samples. We are unable to accept this
submission for the simple reason that the post-mortem clearly refers
to the aforesaid samples along with several other items which had
been taken from the dead body on the 25th January 1996 and which had
been retained at the Safdarjung Hospital till 29th January 1996 when
they had been handed over to Inspector Sunit Kumar who had handed
them over further to PW Ohri who had deposited them in the malkhana.
Furthermore, a perusal of the post-mortem report Ex.P33/B bears an
endorsement that three items that is a copy of the report, the
inquest proceedings and the dead body had been handed over to the
Constable at 6 p.m. on 25th January 1996 but all the other items had
been taken by the CBI on the 29th January. Significantly we find an
acknowledgement at the top right hand corner of the post-mortem
report which reads as under:
“issued against authority letter
No.399/3/1(S)/SIV V SIC-II dated 29.1.96 from CBI - authorizing Shri
Sunit Sharma Insp. CBI.”
Inspector Sunit Kumar had also
acknowledged the receipt of the articles on the 29th at Point X. It
is thus clear that the three first mentioned items had been handed
over to the Constable on the 25th January at 6 p.m. but the other
items had been handed over to the Inspector on the 29th. It bears
notice that the 26th to 28th January 1996 were holidays which was
perhaps the cause as to why some of the items including the semen
swabs and stains and the clothes of the deceased remained in the
custody of the hospital authorities till the 29th. We have also
perused the evidence of PW47 Constable Rajinder Singh of the CBI who
was the In-charge of the malkhana on the day in question. He admitted
that there was no mention that the swabs and slides were contained in
a glass jar, but the fact that the entries had been interpolated has
been emphatically denied. It is also significant that these items had
been taken by Inspector Shekhawat from the malkhana on the 31st
January 1996 in a sealed condition and in a glass jar and handed over
to the CCMB Hyderabad in an identical condition. In this connection,
we have gone through the evidence of PW49 Dr.Lalji Singh who deposed
on oath that all the aforesaid items along with several others,
(which we will deal with later) had been received in a sealed
condition as his organization did not accept any item which was
without a seal. He further stated that along with samples he had
received the sample seals which had been affixed on the bundle of
clothes and the bottle carrying vaginal swabs and slides. It is also
of significance that the vaginal swabs and slides find mention on the
third page of the post-mortem report whereas the other items taken
from the dead body are on internal page one. This raises the
possibility that the Head Constable had, at the initial stage, missed
the articles on page 3 and thereafter rectified the mistake. No
adverse inference against the prosecution can, thus, be drawn with
regard to the retention of the items in the malkhana. It is also
pertinent that no suggestion was put either to the Doctors or to DSP
Ohri or to Sub-Inspector Shekhawat that the seals of the aforesaid
articles had been tampered with.
23. We now come to the suspicion with
regard to the taking and storage of the blood samples of the
appellant. PW Dr. N.S.Kalra who was the Head of the Bio-Chemistry
Department of Ram Manohar Lohia Hospital at the relevant time deposed
that by letter Ex.34/A a request had been made to the hospital to
take blood samples of the appellant in two vials totalling 20 ml. Ms.
Godawari, a Laboratory
Assistant, was accordingly directed to
take the blood samples in two 10 ml. syringes whereafter the blood
was transferred to 4 vials each containing 5 ml. which were duly
sealed and tape applied over them which was signed by Dr. Kalra, Dr.
S.K.Gupta and DSP Ohri and a memo Ex.PW34/B to that effect was
prepared. He further deposed that the said vials had been kept in a
refrigerator under his supervision and were taken by the CBI officers
on January 31, 1996 from him and that while the vials remained in his
custody, they were not tampered with in any manner. He also testified
that whenever blood was kept in a refrigerator, as in the present
case, there was little possibility of evaporation if the rubber cork
was air tight and in cross-examination he deposed that the watery
constituent of blood would not evaporate in the cool atmosphere of a
refrigerator. Mr. Sushil Kumar has accordingly argued that though the
CBI had requested for two samples of 10 ml. each yet the 20 ml. blood
had been divided into four vials, and that when the samples had been
opened in the Laboratory at Hyderabad, only 12 ml. blood in all had
been recovered from the four vials. We, however, find that no
suspicion can be raised with regard to the sanctity of the samples.
It has come in the evidence of Dr. Lalji Singh that 12 ml. of blood
said to be that of the appellant Santosh Kumar Singh in four sterile
vials containing about 3 ml. each had been received through Inspector
Ranbir Shekhawat along with other items. He further explained that in
cross-examination that if the blood samples were kept in a
refrigerator and handed over to the Inspector on the 31st January and
received in the laboratory the next day, it was not likely that 2 ml.
out of each of the four vials would evaporate although some blood
could have evaporated. He further stated that there appeared to be
some leakage in the vials as traces of blood appeared to be in the
material with which the vials had been sealed although this fact did
not find mention in his report. Here too, we must emphasize that the
blood samples were in the custody of the hospital till they were
received by the Inspector Shekhawat for the first time on 31st
January 1996 and he had left for Hyderabad the same day and handed
over the samples and other items to the laboratory on 1st February
1996. The trial court has had much to say on this aspect. It has held
that Dr. N.S.Kalra was a doctor who could be influenced in the
matter. Reliance has also been placed on the document PW34/A of Shri
Bhatnagar addressed to the Medical Superintendent of RML Hospital
that two samples of blood of 10 ml. be taken from the accused and
then goes on to say that 20 ml. blood was taken but it had been
divided into four vials of 5 ml. each which was against the
requisition. The trial court observed that as per the deposition of
CW1 Dr. G.V.Rao of the CCMB, Hyderabad the samples had been received
in the laboratory but only 12 ml. blood had been found in the vials
which raised serious questions and the prosecution was thus called
upon to explain as to how 8 ml. of blood had disappeared and in the
absence of a proper explanation, the possibility that the said
samples had been tampered with, could not be ruled out. The trial
court has, accordingly, rejected the evidence of Dr. N.S.Kalra, Dr.
Lalji Singh and Dr. G.V.Rao as to why and how the quantity of the
blood may have been reduced. The court also examined the document
PW-34/B, which is the memo relating to the taking of the blood
samples, and by some very curious reasoning concluded that some
additions had been made in the document as some words were not in
their proper place and sequence and appeared to have been squeezed in
and that the handwriting was also not identical. We have minutely
perused the document ourselves and can find no such flaw. We also
find absolutely no reason to accept the very broad and defamatory
statement of the trial court that Dr. N.S.Kalra
was a convenient witness for the prosecution as there is no basis for
this finding. On the other hand, there is ample evidence to suggest
that the blood samples had been kept in the hospital in a proper way
and handed over to Inspector Shekhawat who had taken them to the
CCMB, Hyderabad and that the explanation tendered by Dr. Lalji Singh
and Dr. G.V.Rao as to why the quantity of blood may have been
reduced, merits acceptance. The High Court was, therefore, fully
justified in holding that the trial court's conclusions on the
question of the retention and dispatch of the swabs and slides and
the clothes of the deceased the blood samples was faulty, and based
on a perverse assessment of the evidence.
24. We now come to the circumstance
with regard to the comparison of the semen stains with the blood
taken from the appellant. The trial court had found against the
prosecution on this aspect. In this connection, we must emphasize
that
the Court cannot substitute its own opinion for that of an expert,
more particularly in a science such as DNA profiling which is a
recent development. Dr. Lalji Singh in his examination in chief
deposed that he had been involved with the DNA technology ever since
the year 1974 and he had returned to India from the U.K. in 1987 and
joined the CCMB, Hyderabad and had developed indigenous methods and
techniques for DNA finger printing which were now being used in this
country. We also see that the expertise and experience of Dr. Lalji
Singh in his field has been recognized by this Court in Kamalantha &
Ors. Vs. State of Tamil Nadu 2005 (5) SCC 194. We further notice that
CW-1 Dr. G.V.Rao was a scientist of equal repute and he had in fact
conducted the tests under the supervision of Dr.Lalji Singh. It was
not even disputed before us during the course of arguments that these
two scientists were persons of eminence and that the laboratory in
question was also held in the highest esteem in India. The statements
of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been
tested as per the procedure developed by the laboratory, that the
samples were sufficient for the purposes of comparison and that there
was no possibility of the samples having been contaminated or
tampered with. The
two scientists gave very comprehensive statements supported by
documents that the DNA of the semen stains on the swabs and slides
and the underwear of the deceased and the blood samples of the
appellant was from a single source and that source was the appellant.
It is significant that not a single question was put to PW Dr.
Lalji Singh as to the accuracy of the methodology or the procedure
followed for the DNA profiling. The trial court has referred to a
large number of text books and has given adverse findings on the
accuracy of the tests carried out in the present case. We are unable
to accept these conclusions as the court has substituted its own
opinion ignoring the complexity of the issue on a highly technical
subject, more particularly as the questions raised by the court had
not been put to the expert witnesses. In Bhagwan Das & Anr. vs.
State of Rajasthan AIR 1957 SC 589 it has been held that it
would be a dangerous doctrine to lay down that the report of an
expert witness could be brushed aside by making reference to some
text on that subject without such text being put to the expert.
25. The observations in Gambhir vs.
State of Maharashtra AIR 1982 SC 1157 are even more meaningful in so
far as we are concerned. In this case, the doctors who had conducted
the post-mortem examination could not give the time of death. The
High Court, in its wisdom, thought it proper to delve deep into the
evidence and draw its own conclusions as to the time of death and at
the same time, made some very adverse and caustic comments with
regard to the conduct of the Doctors, and dismissed the
appeal of the accused. This Court
(after the grant of special leave) allowed the appeal and reverting
to the High Court's opinions of the doctors observed: “The
High Court came to its own opinion when the doctors failed to give
opinion. The Court has to draw
its conclusion on the basis of the materials supplied by the expert
opinion. The High Court has
tried to usurp the functions of an expert.” This is
precisely the error in which the trial court has fallen. It is
significant that at the initial stage only Dr. Lalji Singh had been
summoned to prove the DNA report and it was during the course of
final arguments that the court thought it fit to summon Dr. G.V.Rao
as a court witness. This witness was subjected to an extra-ordinarily
detailed examination-in-chief and even more gruelling and rambling a
cross-examination running into a hundred or more pages spread over a
period of time. The trial court finally, and in frustration, was
constrained to make an order that the cross-examination could not go
on any further. We are of the opinion that the defence counsel had
attempted to create confusion in the mind of CW-1 and the trial court
has been swayed by irrelevant considerations as it could hardly claim
the status of an expert on a very complex subject. We feel that the
trial court was not justified in rejecting the DNA Report, as nothing
adverse could be pointed out against the two experts who had
submitted it. We must, therefore, accept the DNA report as being
scientifically accurate and an exact science as held by this Court in
Smt. Kamti Devi v. Poshi Ram AIR 2001 SC 2226. In arriving at its
conclusions the trial court was also influenced by the fact that the
semen swabs and slides and the blood samples of the appellant had not
been kept in proper custody and had been tampered with, as already
indicated above. We are of the opinion that the trial court was in
error on this score. We, accordingly, endorse the conclusions of the
High Court on circumstance No.9.
26. Mr. Sushil Kumar, has almost at the
fag end of his arguments, dealt with the question of motive. He
has pointed out that it was by now well settled that motive alone
could not form the basis for conviction as in a case of
circumstantial evidence the chain envisaged was to be complete from
the beginning to the end and to result in the only hypothesis that
the accused and the accused alone was guilty of the crime.
In this connection, he has pointed out that the oral and documentary
evidence relied upon by the prosecution raised some misgivings and
confusion in the relationship of the appellant and the deceased
inter-se, but they could not have been the cause for the rape and
murder. The learned ASG has, however, taken us to the evidence to
argue that there was absolutely no doubt that the appellant felt
frustrated as the deceased was not giving in to his overtures despite
having been pursued relentlessly over two years, and had in anger and
frustration, committed the rape and murder. It has been reiterated
that the finding of the trial court and the High Court on the motive
(which were circumstances Nos.1, 2 and 3) has been concurrent
inasmuch that the appellant had the motive to commit the murder.
27. We have gone through the evidence
on this score. As already observed, this comprises ocular and
documentary evidence. The relevant documents in this connection are
Ex.PW6/C, a complaint dated 25th of February 1995 in which the
deceased referred to an earlier incident in which the appellant had
been harassing her either at her residence B-1/4 Safdarjung Enclave
or in the Faculty of Law and then pointed out that on that day as
well when she had left her house at 10.30 a.m. to go to a friends
place she had found the appellant following her and trying to stop
her at every traffic light and harassing and shouting at her on which
she had made a complaint at the R.K.Puram Police Station and as a
consequence thereof the appellant had tendered two apologies
Ex.PW6/DB, and an undertaking not to harass her any more either
himself or through his friends or to spoil her reputation. These
apologies also dated 25th of February 1995 were witnessed by PW Lt.
Col. S.K.Dhar and Sub-Inspector Rajinder Kumar. This was followed by
another complaint Ex.PW 11/A regarding some incident at the Khyber
Petrol Pump and another undertaking was given by the appellant that
he would not harass her on which she withdrew her complaint. The
trial court further noticed that yet another incident had happened at
about 3 p.m. on 16th August 1995 when the appellant had followed her
home all the way from the University. A message was accordingly
flashed from a PCR and received at Police Station, Vasant Kunj, and
was recorded in the Daily Entry Register as Ex. PW12/A. An enquiry
was entrusted to PW-12 Head Constable Vijay Kumar who went to the
house of the deceased and took a report Ex.PW1/A dictated by her to
her father and the appellant was thereafter arrested and taken to the
police station along with his motorcycle. In this report the deceased
wrote about the earlier incidents of harassment and also the
apologies that had been tendered by the appellant from time to time.
It appears, however, that the police was under some influence and
instead of pursuing the complaint to its logical end, several police
officers, including the SHO, ACP Parbhati Lal and ACP Satender Nath
persuaded the deceased to compromise the matter on which the deceased
was compelled to state that the complaint be kept pending for the
time being. We also find that an incident had happened on 16th
February 1995 which led the deceased to file an FIR against the
appellant under Section 354 of the IPC at Police Station, Maurice
Nagar in which she wrote that despite the fact that a PSO had been
attached with her because of the appellant's misconduct, he had still
continued to chase and harass her and that as she was entering her
class room he had caught hold of her arm and threatened her and tried
to forcibly talk to her and that she had immediately called her PSO
who made a call to the Maurice Nagar Police Station and the police
had come and taken him away. In addition to this, we find that the
appellant had made a complaint against the deceased to the University
authorities and followed it up with a reminder that she was pursuing
two courses in the University at the same time which was against the
rules with the result the University had issued a show cause notice
to her and that the matter was still under enquiry with the
University when the present incident happened. There is ocular
evidence as well. PW1 Shri C.L.Mattoo, deposed that when he visited
Delhi in December 1995 he noticed that the appellant and two or three
boys were passing lewd remarks at his daughter. Likewise, it has come
in the evidence of PW44 Smt. Rageshwari Mattoo, who testified that
while she was admitted in the AIIMS, the appellant had repeatedly
called the deceased on telephone despite the fact that she was not
taking his calls. The courts below have also placed reliance on the
evidence of three witnesses in support of the telephone calls i.e.
PW10 Tanwir Ahmed Mir, PW13 Satender Kumar Sharma, Advocate and PW16
Ms. Manju Bharti, Advocate who came into witness box to state that
the deceased had told them that the appellant was harassing her on
the telephone as well. We also notice other evidence with regard to
the sexual harassment. PW44 deposed that when she had visited Lt.
Col. S.K.Dhar's home Delhi in January 1995 (with whom the deceased
was then residing), the appellant had tried to forcibly enter the
house while she was present on which she had told him that as the
deceased was already engaged, he should not harass her. She also
referred to the fact that in February 1995 when she had visited Delhi
again, Bishamber, the domestic servant of Lt. Col. S.K.Dhar had
brought a bouquet from the outside with a chit reading “Valentines
Day - with love from Santosh.” These incidents of harassment were
confirmed by Lt. Col. S.K.Dhar as well who deposed that the appellant
had been harassing the deceased from November 1994 onwards and would
repeatedly come to his house on his black Bullet motorcycle. In the
light of the above evidence, the motive stands proved beyond any
doubt. It appears that as the appellant's overtures had been rebuffed
by the deceased, he had resorted to harassing her in a manner which
became more and more aggressive and crude as time went by. It is
evident that the appellant was well aware of her family background
and despite several complaints against him and the provision of a
PSO, he had fearlessly and shamelessly pursued her right to the
doorsteps of her residence ignoring the fact that she had first lived
in the house of Lt. Col. S.K.Dhar, an Army Officer from the end of
1994 onwards and after January 1996 with her parents, her father too
being a very senior officer in a Semi-Government Organization. It has
come in the evidence of PW Smt. Rageshwari Mattoo that the police
officers before whom the appellant had been brought on the complaints
had desisted from taking any action against him and had, on the
contrary harassed her, her husband and the deceased by summoning and
detaining them in the Police Station at odd hours and for long
periods of time. It was this behaviour that led the trial court to
comment very adversely on the conduct of some of the police officers
involved. We endorse the findings of the
trial court that the conduct of these officers deserves to be
condemned as reprehensible.
28. We are, therefore, of the opinion
that circumstances 1 to 3 which have been found by two courts against
the appellant and in favour of the prosecution constitute a very
strong chain in the prosecution's case. We agree with Mr. Sushil
Kumar's broad statement that motive alone cannot form the basis of
conviction but in the light of the other circumstances, the motive
goes a very long way in forging the links in the chain.
29. A few additional submissions made
by Mr. Sushil Kumar while arguing the matter in reply must now be
dealt with. He has first pointed out that
the trial court had acquitted the appellant and the High Court had
reversed the judgment and the matter before us was, therefore, in the
nature of a first appeal and the guiding principles relating to
interference in such an appeal by the High Court postulated in
Arulvelu & Anr. vs. State & Anr. (2009) 10 SCC 206 had to be
adhered to. He has also submitted that it was now well
settled that all circumstances which were to be used against an
accused in a criminal case were to be put to him in his statement
under Section 313 of the Cr.P.C. failing which the said circumstance
could not be taken into account. Reliance for this plea has been
placed on Ishwar Singh vs. State of U.P. (1976) 4 SCC 355 and Ashraf
Ali vs. State of Assam (2008) 16 SCC 328. Elaborating on this aspect,
it has been pointed out that the allegation that the appellant had
strangulated the deceased with the use of a wire of the heat
convector and the fact that the helmet had been used for causing the
injuries to the deceased had not been put to him. The learned ASG too
has placed reliance on a large number of judgments to the effect that
the omission to put a question to an accused would not ipso-facto
result in the rejection of that evidence as the onus lay on the
accused to show prejudice. These judgments are Sharad Birdhichand
Sarda vs. State of Maharashtra (1984) 4 SCC 116 and Suresh Chandra
Bahri vs. State of Bihar 1995 Supp (1) SCC 80.
30. We first examine the argument with
regard to the propriety of the High Court's interference in an
acquittal appeal assuming the present matter to be a first appeal.
Undoubtedly, a judgment of acquittal
rendered by a trial court must be given the greatest consideration
and the appellate court would be slow in setting aside that judgment,
and where two views are possible, the one taken by the trial court
would not be disturbed. On the contrary if the trial court's judgment
was perverse, meaning thereby that it was not only against the weight
of evidence but was all together against the evidence, interference
was called for. The High Court was alive to its
limitation in such a matter and while dealing with this argument
first expressed its shock and observed that though virtually all the
findings were in favour of the prosecution, yet curiously, the
decision had been rendered in favour of the accused. The
judgment of the trial court was accordingly held to be perverse and
against the evidence. The High Court (in paragraph 28) observed thus:
“We have carefully and extensively
gone through the material on record with the aid of counsel for the
parties. Since this is an appeal from judgment of acquittal we can
interfere only if we are satisfied that the findings of the trial
court are perverse and have resulted in grave miscarriage of justice.
High Court while hearing an appeal against acquittal has the power
to reconsider the whole evidence and to come to its own conclusion in
place of the findings of the trial court but only if the decision of
the trial court is such which could not have been arrived at all by
reasoning.”
31. We too believe from a perusal of
the evidence that the High Court's observations were justified on the
facts. In other words, even assuming that the matter before us was to
be treated as a first appeal, we too would have interfered in the
matter and set aside the judgment of the trial court, as it was
against the evidence and to desist from doing so would cause great
injustice not only to the prosecution but even to the deceased victim
and her family.
32. We now come to the argument with
regard to the omission in putting certain questions to the appellant.
It does appear from the circumstance that it was the appellant who
had strangulated the deceased and that too with the convector wire
had not been put to the appellant but it is clear from question No.86
that the fact that death had been caused by asphyxiation as a result
of strangulation by ligature and that the ligature material was one
with a soft surface, had been put to him. We also see that when the
injuries at serial Nos.1 to 11 in the post-mortem report Ex.PW33/B
had been put to the appellant, he had merely made a statement that he
did not know anything. We further notice from the evidence of PW-33
Dr.A.K.Sharma that the cause of death was strangulation and that the
nature of injury Nos. 4 and 5, which referred to the ligature marks
on the neck, had been pointedly asked of the Doctor in
cross-examination. Likewise, the fact that the helmet had been used
as weapon of offence,
had not been specifically put to the
appellant but here again we find absolutely no prejudice to the
appellant on this score as the death had been caused not by the use
of the helmet but by strangulation and that the appellant and his
counsel were fully alive to the prosecution story that the helmet had
been used as a weapon to beat the deceased into submission. Ishwar
Singh's case (supra) cited by Mr. Sushil Kumar was not dealing with a
statement under Section 313 of the Cr.P.C. The facts show that the
ballam or bhala which were alleged to be the murder weapons had not
been shown to the doctor and this Court held that in this situation,
it was not possible to convict the accused (who had been charged
under Section 302/149) under Section 302 IPC simpliciter. This
present case does not fall within this category. Mr. Sushil Kumar
has, however, placed greater reliance on Ashraf Ali's case (supra)
whereby this Court relying on a large number of judgments observed as
under: “The object of Section 313 of the
Code is to establish a direct dialogue between the court and the
accused. If a point in the evidence is important against the accused,
and the conviction is intended to be based upon it, it is right and
proper that the accused should be questioned about the matter and be
given an opportunity of explaining it. Where no specific question has
been put by the trial court on an inculpatory material in the
prosecution evidence, it would vitiate the trial. Of course, all
these are subject to rider whether they have caused miscarriage of
justice or prejudice. This Court also expressed a similar
view in S.Harnam Singh v. State (Delhi Admn.) while dealing with
Section 342 of the Criminal Procedure Code, 1898 (corresponding to
Section 313 of the Code). Non-indication of inculpatory material
in its relevant facts by the trial court to the accused adds to the
vulnerability of the prosecution case. Recording of a statement of
the accused under Section 313 is not a purposeless exercise.”
33. Undoubtedly, the observations are
extremely relevant for the purpose of this case but each
case has to be seen on its own facts, more
particularly that the omission had caused prejudice to the accused as
would be clear from the rider put by the court in this very case (and
highlighted by us). On the contrary, we find that prejudice must
ensue has been reiterated by this Court in Suresh Chandra Bahri's
case (supra) and a very large number of other cases. This is what the
Court has to say in Bahri's case: “Learned Senior Counsel Shri
Sushil Kumar appearing for the appellant Raj Pal Sharma submitted
that in view of the fact that no question relating to motive having
been put to the appellants on the point of motive under Section 313
of the Code of Criminal Procedure, no motive for the commission of
the crime can be attributed to the appellants nor the same can be
reckoned as circumstance against the appellants. It is no doubt true
that the underlying object behind Section 313 CrPC is to enable the
accused to explain any circumstance appearing against him in the
evidence and this object is based on the maxim audi
alteram partem which is one of the principles of
natural justice. It has always been regarded
unfair to rely upon any incriminating circumstance without affording
the accused an opportunity of explaining the said incriminating
circumstance. The provisions in Section 313, therefore,
make it obligatory on the court to question the accused on the
evidence and circumstance appearing against him so as to apprise him
the exact case which he is required to meet. But
it would not be enough for the accused to show that he has not been
questioned or examined on a particular circumstance but he must also
show that such non-examination has actually and materially prejudiced
him and has resulted in failure of justice. In other
words in the event of any inadvertent omission on the part of the
court to question the accused on any incriminating circumstance
appearing against him the same cannot ipso facto vitiate the trial
unless it is shown that some prejudice was caused to him. In
Bejoy Chand Patra v. State of W.B., this Court took the view that it
is not sufficient for the accused merely to show that he has not been
fully examined as required by Section 342 of the Criminal Procedure
Code (now Section 313 in the new Code) but he must also show that
such examination has materially prejudiced him. The same
view was again reiterated by this Court in Rama Shankar Singh v.
State of W.B. In the present case before us
it may be noted that no such point was raised and no such objection
seems to have been advanced either before the trial court or the High
Court and it is being raised for the first time before this Court
which appears to us to be an afterthought. Secondly,
learned counsel appearing for the appellants was unable to place
before us as to what in fact was the real prejudice caused to the
appellants by omission to question the accused/appellant Suresh Bahri
on the point of his motive for the crime. No material was also placed
before us to show as to what and in what manner the prejudice, if
any, was caused to the appellants or any of them.
Apart from what has been stated above,
it may be pointed out that it cannot be said that the appellants were
totally unaware of the substance of the accusation against them with
regard to the motive part. In this regard a reference may be made to
Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri
in the course of his statement recorded under Section 313 CrPC. The
sum and substance of these questions is that from the prosecution
evidence it turns out that the acquitted accused Y.D. Arya the
maternal uncle of the appellant Suresh Bahri was living in a portion
of the upper storey of his house at Delhi. He with the consent of
Santosh Bahri the mother of Suresh Bahri, was interfering in the
family affairs as well as in business matters by reason of which the
maternal uncle had to leave the house and that having regard to the
future of her children Urshia Bahri not only wanted to manage the
property but also to dispose of the same which was not liked by
Suresh Bahri and with a view to remove Urshia Bahri from his way the
appellant Suresh Bahri wanted to commit her murder. In view of these
questions and examination of Suresh Bahri, it cannot be said that he
was totally unaware of the substance of the accusation and charge
against him or that he was not examined on the question of motive at
all. In the facts and circumstances discussed above it cannot be said
that any prejudice was caused to the appellant. The contention of the
learned counsel for the appellants in this behalf therefore has no
merit.”
34. We see that the facts of each case
have to be examined but the broad principle is that all incriminating
material circumstances must be put to an accused while recording his
statement under Section 313 of the Code, but if any material
circumstance has been left out that would not ipso- facto result in
the exclusion of that evidence from consideration unless it could
further be shown by the accused that prejudice and miscarriage of
justice had been sustained by him. We see from the case in hand
that not only were the questions pertaining to the helmet and the
ligature marks on the neck put to the Doctor and even in a way to the
appellant but the defence counsel had raised comprehensive arguments
on these core issues not only before the trial court and the High
Court but before us as well. The defence was, therefore, alive to the
circumstances against the appellant. No prejudice or miscarriage of
justice has, thus, been occasioned.
- We have also kept in mind the broad principle that a particularly nasty and revolting a crime imposes a yet greater caution on the Court which must resist the tendency to look beyond the file and not be swayed by the horror of the crime or the character of the accused. In Kashmira Singh vs. State of Madhya Pradesh AIR 1952 SC 159 it has been observed thus:- “The murder was a particularly cruel and revolting one and for that reason /it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.”
36. Likewise the observations in Ashish
Batham vs. State of Madhya Pradesh (2002) 7 SCC 317 too are relevant:
“Realities
or truth apart, the fundamental and basic presumption in the
administration of criminal law and justice delivery system is the
innocence of the alleged accused and till the charges are proved
beyond reasonable doubt on the basis of clear, cogent, credible or
unimpeachable evidence, the question of indicting or punishing an
accused does not arise, merely, carried away by the heinous nature of
the crime or the gruesome manner in which it was found to have been
committed. Mere suspicion, however, strong or probable it may be is
no effective substitute for the legal proof required to substantiate
the charge of commission of a crime and graver the charge is, greater
should be the standard of proof required. Courts dealing with
criminal cases at least should constantly remember that there is a
long mental distance between “may be true” and “must be true”
and this basic and golden rule only helps to maintain the vital
distinction between “conjectures” and “sure conclusions” to
be arrived at on the touchstone of a dispassionate judicial scrutiny
based upon a complete and comprehensive appreciation of all features
of the case as well as quality and credibility of the evidence
brought on record.”
The aforesaid principles have been
scrupulously adhered to by us while hearing this matter over almost 5
days.
37. We now come to the question of
sentence. It has been submitted by Mr. Sushil Kumar that the present
case was not one which fell in the category of the `rarest of rare
cases' as several mitigating circumstances with respect to the
sentence were discernable. He has first pointed out that the High
Court had reversed an acquittal judgment based exclusively on
circumstantial evidence. He has further argued that the appellant was
a young man about 24/25 of age on the date of incident and had been
led astray by the vagaries of youth and that after his acquittal in
December 1999, he had got married (in the year 2003) and a baby girl
had been born to him and his wife before the judgment of the High
Court had been delivered in October 2006. These submissions have been
stoutly opposed by the learned
ASG who has submitted that even the
trial court had given a positive finding that the motive and murder
were truly barbaric and revolting and had been preceded by continuous
harassment of the deceased over a period of two years and the
appellant was an advocate with an over indulgent police officer
father who had repeatedly come to the rescue of his son.
38. We have considered the arguments of
the learned counsel and have also gone through the judgments relied
upon by them in support of their respective cases.
We think that the answer on the
question of the sentence can be found in the judgment of the High
Court itself. We quote from paragraph 3 of the sentencing part of the
judgment delivered on 30th October 2006: “We have heard learned
counsel for the parties and have given our consideration to what has
been placed before us. We need hardly say that sentencing is the most
difficult part of a judgment and this indeed has been a case here.
There is absolutely no doubt in our mind that what was required of
Santosh Singh was exemplary behaviour being a son of a police officer
and also a lawyer himself yet with a premeditated approach he
continued to harass the victim for nearly two years and ultimately in
spite of repeated warnings by the police and his undertakings to them
went about
committing a most ghastly act. The act
itself sent ripples in the society and showed how insecure a citizen
can get against this kind of a person. In the various judgments which
have been referred to by counsel from both sides we find the
principles laid down to the considered while deciding the question of
sentence are best reported in `Bachan Singh vs. State of Punjab' AIR
1980 SC 898 and `Machhi Singh vs. State of Punjab, 1983 SC 211. These
cases sum up the law on the subject of death penalty which we have
kept in mind. Evaluating the circumstances in favour and against the
convict which have already been enumerated above, we find that the
aggravating circumstances referred to by the Additional Solicitor
General for outweigh the circumstances which according to the counsel
to the convict are mitigating circumstances, although we do not
consider them to be so. We are thus of the opinion that for a crime
of this sort which has been committed with premeditation and in a
brutal manner the convict deserves no other sentence but death.”
The underlined words themselves give a
hint as to the sentence that should be awarded in this case.
Undoubtedly the sentencing part is a
difficult one and often exercises the mind of the Court but where the
option is between a life sentence and a death sentence, the options
are indeed extremely limited and if the court itself feels some
difficulty in awarding one or the other, it is only appropriate that
the lesser sentence should be awarded. This is the underlying
philosophy behind `the rarest of the rare' principle.
Furthermore, we see that the mitigating circumstances need to be
taken into account, more particularly that the High Court has
reversed a judgment of acquittal based on circumstantial evidence,
the appellant was a young man of 24 at the time of the incident and,
after acquittal, had got married and was the father of a girl child.
Undoubtedly, also the appellant would have had time for reflection
over the events of the last fifteen years, and to ponder over the
predicament that he now faces, the reality that his father died a
year after his conviction and the prospect of a dismal future for his
young family. On the contrary, there is nothing to suggest that he
would not be capable of reform. There are extremely aggravating
circumstances as well. In particular we notice the tendency of
parents to be over indulgent to their progeny often resulting in the
most horrendous of situations. These situations are exacerbated when
an accused belongs to a category with unlimited power or pelf or even
more dangerously, a volatile and heady cocktail of the two. The
reality that such a class does exist is for all to see and is
evidenced by regular and alarming incidents such as the present one.
Nevertheless, to our mind, the balance sheet tilts marginally in
favour of the appellant, and the ends of justice would be met if the
sentence awarded to him is commuted from death to life imprisonment
under Section 302 of the Indian Penal Code; the other part of the
sentence being retained as it is. With this modification in the
sentence, the appeal is dismissed.
...................................J.
(HARJIT SINGH BEDI)
...................................J.
(CHANDRAMAULI KR. PRASAD)
Crl. Appeal No.87 of
2007
DATED: OCTOBER 6, 2010
NEW DELHI.
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