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CASE NO.:

Appeal (crl.) 1119-1120 1998

PETITIONER:

STATE, GOVT. OF NCT OF DELHI

Vs.

RESPONDENT:

SUNIL AND ANOTHER

DATE OF JUDGMENT: 29/11/2000

BENCH:

K.T.Thomas, R.P.Sethi

JUDGMENT:

THOMAS, J. Two sex maniacs libidinously ravaged a

tiny female tot like wild beasts and finished her off.

Police after investigation found that the two respondents

herein are those two fiends. A Sessions Court upheld the

said police version as correct. He sentenced one of them to

death penalty and the other to life imprisonment, but a

Division Bench of the High Court of Delhi declined to

believe the police version as true and consequently the two

respondents were acquitted. This appeal by the State is by

special leave.

The little girl was Anuradha and she was aged only

four. She was fondly taken away from her mothers house on

the forenoon of 5.9.1992. Her dead body was taken up by her

mother on the same night from the house of first accused

Sunil. When the doctor conducted autopsy on the dead body

he described the dimensions of the imprints left in the

infantile body reflecting a horrible sexual molestation

inflicted on the child. Next day the police arrested the

two accused (A1-Sunil and A2-Ramesh) and after completing

the investigation charge-sheeted both of them for offences

under Sections 364, 376, 377 and 302 read with Section 34 of

the Indian Penal Code. After the trial the sessions court

convicted both of them under all the aforesaid counts and

sentenced A2 Ramesh to death and A1 Sunil to imprisonment

for life on the charge of murder and awarded lesser

sentences for the remaining counts.

Details of the prosecution case are the following:

Anuradhas mother Sharda (PW10) was known to A1 Sunil and

his mother (Giano Devi). Sharda had stayed in the house of

Giano Devi for a few days and their acquaintance became

closer. Sharda was working in a tube-light manufacturing

factory during those days. As she needed a place to live in

Giano Devi arranged a small hutment (Jhuggi) with the help

of another lady (PW8 Tara) who was residing close-by. On

the occurrence day Sharda went to the factory for work

leaving her child Anuradha in the custody of PW8-Tara. At

about 11 A.M. Sunil visited them and expressed to PW8-Tara

that he would take the child and her clothes as well as some

domestic utensils to PW10. Though PW8 suggested that this

should be done only if Sharda permits, A1-Sunil took the

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child and her clothes and the utensils from his house during

a short time when PW8-Tara had gone out to fetch milk. When

she came home in the night she learnt from PW8-Tara that her

child was taken away by Sunil. So she went to Sunils

house. It was about 9.00 P.M. then. To her dismay she

found her little child lying completely nude next to

A2-Ramesh, on the second floor of the house, who was then

deep in his sleep. Then Sunil, who was found in an

inebriated mood, hurled a remark that I have dispatched

Anuradha to heaven. She felt concerned as to what would

have happened to the child. It was then she realised that

her child was breathless. PW10- Sharda then took the child

to the hospital, but the doctor who examined her pronounced

her dead.

PW1 - Dr. Basant Lal conducted the autopsy on the

dead body of the child at 12.00 noon on 7.9.1992. In his

opinion the child would have died about 36 to 48 hours prior

to the autopsy. He gave full details in his post-mortem

report about the features noticed by him on the dead body.

The corpse was full of abrasions and contusions. The

prominent among them were counted by the doctor as 25 in

number and he described the situs and dimensions of all of

them. Among them, oval fashioned multiple abrasions on the

left cheek appeared to him as marks of biting. Both the

upper and lower lips of the child were bruised violently.

Marks of violent handling of both the thighs, lower abdomen

and pubic region are also described by the doctor. The

vaginal orifice is described by the doctor in his report as

follows: Labia majora and minora swollen and reddish blue

in colour. Vaginal orifice dilated and blood is coming out

of it. Right labia minora showing tears 1.6 x 0.1 cm. and

on left side labia minora showing tear in an area of 1.5 x

0.2 cm in vertical plane. Labia majora showing contusion on

both sides in an area of 3 x 2 cm each.

About hymen the doctor described thus: Hymen

showing tear at 5 and 6 Oclock position which was going

upto the vaginal wall and triangular in shape in an area of

1.5 x 1 x 1 cm. There were tears on the sides and back of

urethra opening upto hymen in an area of 1.4 x 1.2 cm. in

triangular fashion.

About the anus the doctor described as follows:

Dilated and blood was coming out of it. The diameter

was 1.5 cm. The area around the orifice was showing

swelling with reddish contusion in an area of 2 cm.

DR. Basant Lal (PW-1) further noted that the vaginal

orifice was so badly mutilated that one middle finger could

be easily admitted into it. Even the tongue was not spared

in that violence as the doctor found its position like this:

The tongue was showing abrasion 0.5 x 0.5 cm. on its

front right outer aspect with contusion around. Reddish

bluish in colour Bite mark.

During examination of the head of the body PW1 noticed

thick layered bluish-reddish effusion of blood on the right

temporal parietal region. Though there was no fracture of

the skull the duramater on the left side looked bluish, and

there was thick subdural haemotoma in an area of 20x10x0.8

cm. and one fist full clotted blood, and patchy

subarachnoid haemorrage all over the brain which were also

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noticed by the doctor.

From the woeful and eerie features described by the

doctor no court could possibly escape from the conclusion

that the little child was violently molested, ravished,

raped and sodomised besides penile penetration having been

made into her mouth. The remnants of extensive mangling of

the tender body of the child would reflect the possibility

of more than one rapist subjecting the child to such beasty

ravishment.

Though the Sessions Court acted on the above medical

report as reliable it is unfortunate that the Division Bench

of the High Court expressed misgivings about it. The only

basis for entertaining doubt about the correctness of the

findings recorded by PW1 Dr. Basant Lal was that when the

deceased was first examined by one Dr. Gajrat Singh at

11.40 P.M. on 5.9.1992 he noted only multiple bruises all

over the body in Ext.PW11/1 MLC(Medico Legal Certificate).

It was the said doctor who pronounced the girl dead. He

made the above entry in the MLC. It must be noted that Dr.

Gajrat Singh was not examined as a witness in the court.

Apparently that doctor was not disposed to conduct a

detailed examination on the dead body either because he was

pretty sure that the body would be subjected to a detailed

autopsy or because the doctor himself was in a great hurry.

Whatever be the reason, no court could afford to ignore the

report of the doctor who conducted the autopsy with

meticulous precision about all the features noticed, merely

on the strength of what another doctor had scribbled in the

MLC at the initial stage.

Learned Judges of the High Court should have noticed

that the evidence of PW1 Dr. Basant Lal was not even

controverted by the defence as no question was put to him in

cross-examination by the defence counsel. His testimony

ought to have been given due probative value particularly

when nothing was shown to doubt the evidence of that medical

practitioner. Learned counsel for the respondents was not

able to pick out even a single answer from his evidence

which could at least throw a modicum of doubt about the

correctness of his evidence. Hence we have to proceed on

the premise that whatever PW1 Dr. Basant Lal - found on

the dead body were the actual position noticed by him during

autopsy. The Sessions Judge has rightly accepted that

evidence and no exception can be taken thereto. Thus, it is

beyond doubt that the little girl was raped and sodomised

and that death was due to the injuries sustained in that

exercise.

When the above premise is so certain the task of the

court is narrowed down to the limited area i.e., were the

two respondents the rapists or is there any reasonable scope

to think that somebody else would have done those acts.

The trial court came to the conclusion that the

culprits are the two respondents and none else. The

Sessions Judge found that prosecution has established the

following circumstances: (1) Sunil (1st accused) had taken

the child from the house of PW8 Tara by about noon on

5.9.1992. (2) The child was recovered from the house of A1

Sunil and she was then found breathless. (3) That child

was lying naked by the side of A2 Ramesh who was in deep

sleep when the mother of the child lifted her up. (4) A1

Sunil, who was then in inebriated condition, blurted out

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that Anuradha was sent to heaven. (5) The blood-stained

nicker of Anuradha was later recovered from the house of A2

Ramesh on the basis of a statement given to the police.

The trial court concluded on the strength of those

circumstances that both the respondents are liable to be

convicted for murder, rape and unnatural offence, while A1

Sunil is additionally liable for kidnapping the child for

murder. Accordingly the trial court convicted both the

respondents and sentenced them as aforesaid.

Regarding the first circumstance that it was A1

Sunil who took the child from the care of PW8 Tara,

prosecution has examined PW8 Tara and her neighbour PW12 -

Dariba besides the evidence of PW10 Sharda. PW8 Tara

said that she knew both the accused since they used to stay

in the house of Sharda for some days earlier. According to

PW8 Tara, the child and her mother had stayed in her

Jhuggi for a few days and on the date of occurrence A1

Sunil visited the Jhuggi at 11 A.M. and requested her to

let the child Anuradha be taken with him along with some

utensils and clothes. The suggestion was that he had to

take the child to the factory where Sharda was working. It

appears that PW8 Tara was reluctant to allow him to take

the child presumably because she did not know whether Sharda

herself wanted the child then. But during the short

interval when she went out of the house for purchasing milk

A1 Sunil had taken away the child. As she did not know

where Sharda was working and as the child was taken away by

A1 Sunil who was familiar to Sharda no immediate step was

taken by PW8 Tara and she chose to wait till Sharda

returned.

The above evidence of PW8 Tara is to be appreciated

in the light of what PW10 Sharda herself had said. PW10

deposed that she was quite familiar with A1 Sunil and she

and the child had stayed at Sunils house for a few days

sometime back. PW10 has stated that on the date of

occurrence when she returned to Taras house she was told

that Sunil had taken the child away by saying that PW10

would take the child back in the evening. She further

deposed that she went to A1s house at 9.30 P.M. along with

PW8 Tara and PW12 Dariba and collected the child from

that house and the child was then lying next to A2 Ramesh

who too was then sleeping. As the child was found

breathless and in view of the comment blurted out by A1

Sunil, she rushed the child to the hospital.

The Division Bench of the High Court expressed

difficulty to believe the said version of the prosecution

i.e. A1 Sunil had taken away the child from the Jhuggi of

PW8 Tara. The reasons of the High Court for it are: (1)

There was no need for A1 Sunil to take the clothes and

utensils even if he wanted to take the child to its mother

Sharda. (2) There is nothing to indicate that PW10 Sharda

made any enquiry about the clothes and utensils. (3) PW8

Tara could not explain as to what she understood when A1

Sunil wanted to take away the child with him. (4) Nobody

from the neighbourhood of Tara was examined to corroborate

her evidence. (5) The testimony of PW8 Tara was

contradictory with the evidence of PW10 Sharda.

We perused the evidence of PW8-Tara, PW10-Sharda and

their neighbour PW12-Dariba. True, there are discrepancies

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between the evidence of those three witnesses, but we have

not come across any discrepancy worth quoting for

consideration as they are immaterial. Such discrepancies

are common features in the testimony of any two witnesses.

It was too much of a strain for the judicial mind to ferret

out some minor discrepancies as between the testimony of

those three witnesses. Even the other reasons advanced by

the Division Bench of the High Court are ex facie puerile

and evidence given on oath by the bereaved mother

PW10-Sharda and her other associate PW8-Tara, cannot be

jettisoned on such insignificant reasons. In our view the

High Court ought not to have sidelined the evidence of those

three witnesses.

The circumstance relating to the recovery of the

bloodstained nicker is a formidable one. But the Division

Bench did not attach any importance to it solely on the

ground that the seizure memo was not attested by any

independent witness. Here the circumstance is that when A2-

Ramesh was interrogated by PW17-Investigating Officer he

said: Her underwear is in my house and I can point out the

place where it is. Pursuant to the said information the

police recovered the nicker from the house of A2-Ramesh. It

was identified by PW10-Sharda as her childs nicker. When

the nicker was subjected to chemical test it was revealed

that the under-cloth of the child was stained with blood of

O group (same is the blood group of Anuradha). The said

statement of A2-Ramesh would fall within the purview of

Section 27 of the Evidence Act as the fact discovered was

that the nicker of the deceased was in the house of A2-

Ramesh. The presumption which can be drawn therefrom is

that it was A2 who removed the nicker and kept it in his

house. A2 had no explanation to be offered about that

circumstance.

Recovery of the nicker is evidenced by the seizure

memo Ext.PW-10/G. It was signed by PW10-Sharda besides its

author PW17-Investigating Officer. The Division Bench of

the High Court declined to place any weight on the said

circumstance purely on the ground that no other independent

witness had signed the memo but it was signed only by

highly interested persons. The observation of the

Division Bench in that regard is extracted below:

It need hardly be said that in order to lend

assurance that the investigation has been proceeding in fair

and honest manner, it would be necessary for the

Investigating Officer to take independent witnesses to the

discovery under Section 27 of the Indian Evidence Act; and

without taking independent witnesses and taking highly

interested persons and the police officers as the witnesses

to the discovery would render the discovery, at least, not

free from doubt.

In this context we may point out that there is no

requirement either under Section 27 of the Evidence Act or

under Section 161 of the Code of Criminal Procedure, to

obtain signature of independent witnesses on the record in

which statement of an accused is written. The legal

obligation to call independent and respectable inhabitants

of the locality to attend and witness the exercise made by

the police is cast on the police officer when searches are

made under Chapter VII of the Code. Section 100(5) of the

Code requires that such search shall be made in their

presence and a list of all things seized in the course of

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such search and of the places in which they are respectively

found, shall be prepared by such officer or other person

and signed by such witnesses. It must be remembered that

search is made to find out a thing or document which the

searching officer has no prior idea where the thing or

document is kept. He prowls for it either on reasonable

suspicion or on some guess work that it could possibly be

ferreted out in such prowling. It is a stark reality that

during searches the team which conducts search would have to

meddle with lots of other articles and documents also and in

such process many such articles or documents are likely to

be displaced or even strewn helter-skelter. The legislative

idea in insisting on such searches to be made in the

presence of two independent inhabitants of the locality is

to ensure the safety of all such articles meddled with and

to protect the rights of the persons entitled thereto. But

recovery of an object pursuant to the information supplied

by an accused in custody is different from the searching

endeavour envisaged in Chapter VII of the Code. This Court

has indicated the difference between the two processes in

the Transport Commissioner, Andhra Pradesh, Hyderabad & anr.

vs. S. Sardar Ali & ors. (1983 SC 1225). Following

observations of Chinnappa Reddy, J. can be used to support

the said legal proposition: Section 100 of the Criminal

Procedure Code to which reference was made by the counsel

deals with searches and not seizures. In the very nature of

things when property is seized and not recovered during a

search, it is not possible to comply with the provisions of

sub-section (4) and (5) of section 100 of the Criminal

Procedure Code. In the case of a seizure [under the Motor

Vehicles Act], there is no provision for preparing a list of

the things seized in the course of the seizure for the

obvious reason that all those things are seized not

separately but as part of the vehicle itself.

Hence it is a fallacious impression that when recovery

is effected pursuant to any statement made by the accused

the document prepared by the Investigating Officer

contemporaneous with such recovery must necessarily be

attested by independent witnesses. Of course, if any such

statement leads to recovery of any article it is open to the

Investigating Officer to take the signature of any person

present at that time, on the document prepared for such

recovery. But if no witness was present or if no person had

agreed to affix his signature on the document, it is

difficult to lay down, as a proposition of law, that the

document so prepared by the police officer must be treated

as tainted and the recovery evidence unreliable. The court

has to consider the evidence of the Investigating Officer

who deposed to the fact of recovery based on the statement

elicited from the accused on its own worth.

We feel that it is an archaic notion that actions of

the police officer should be approached with initial

distrust. We are aware that such a notion was lavishly

entertained during British period and policemen also knew

about it. Its hang over persisted during post-independent

years but it is time now to start placing at least initial

trust on the actions and the documents made by the police.

At any rate, the court cannot start with the presumption

that the police records are untrustworthy. As a proposition

of law the presumption should be the other way around. That

official acts of the police have been regularly performed is

a wise principle of presumption and recognised even by the

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legislature. Hence when a police officer gives evidence in

court that a certain article was recovered by him on the

strength of the statement made by the accused it is open to

the court to believe the version to be correct if it is not

otherwise shown to be unreliable. It is for the accused,

through cross-examination of witnesses or through any other

materials, to show that the evidence of the police officer

is either unreliable or at least unsafe to be acted upon in

a particular case. If the court has any good reason to

suspect the truthfulness of such records of the police the

court could certainly take into account the fact that no

other independent person was present at the time of

recovery. But it is not a legally approvable procedure to

presume the police action as unreliable to start with, nor

to jettison such action merely for the reason that police

did not collect signatures of independent persons in the

documents made contemporaneous with such actions.

In this case, the mere absence of independent witness

when PW17 recorded the statement of A2-Ramesh and the nicker

was recovered pursuant to the said statement, is not a

sufficient ground to discard the evidence under Section 27

of the Evidence Act.

Thus on consideration of the entire evidence in this

case we have no doubt that the trial court had come to the

correct conclusion that the two respondents were the rapists

who subjected Anuradha to such savagery ravishment. The

Division Bench of the High Court has grossly erred in

interfering with such a correct conclusion made by the trial

court as the reasons adopted by the High Court for such

interference are very tenuous. Nonetheless it is difficult

to enter upon a finding that the respondents are equally

guilty of murder of Anuradha. In the opinion of PW1 doctor

the child died due to intracranial damage consequent upon

surface force impact to the head. The said opinion was

made with reference to the subdural haemotoma which resulted

in subarachnoid haemorrage. Such a consequence happened

during the course of the violent ravishment committed by

either both or by one of the rapists without possibly having

any intention or even knowledge that their action would

produce any such injury. Even so, the rapists cannot

disclaim knowledge that the acts done by them on a little

infant of such a tender age were likely to cause its death.

Hence they cannot escape conviction from the offence of

culpable homicide not amounting to murder.

In the result, we set aside the impugned judgment of

the High Court. We restore the conviction passed by the

trial court under Section 376 and 377 read with Section 34

of the IPC. The trial court awarded the maximum sentence to

the respondents under the said counts i.e. imprisonment for

life. The fact situation in this case does not justify any

reduction of that sentence. We also convict the respondents

under Section 304 Part II, read with Section 34 of the IPC

though it is unnecessary to award any sentence thereunder in

view of the sentence of imprisonment for life awarded to the

respondents under the other two counts.

This appeal is disposed of accordingly.