[REPORTABLE]

      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.  

2. 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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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, the  

Crl. Appeal No.87 of  2007

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.  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

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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  

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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,  

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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:

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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:

Crl. Appeal No.87 of  2007

“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  

Crl. Appeal No.87 of  2007

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.”

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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-à-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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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 5  th   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.”   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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.

Crl. Appeal No.87 of  2007

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.  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  5  th   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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.”

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.

Crl. Appeal No.87 of  2007

18. 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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.  

Crl. Appeal No.87 of  2007

(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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.”

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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,  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.  

Crl. Appeal No.87 of  2007

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,  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.”

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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.

Crl. Appeal No.87 of  2007

35. 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  

Crl. Appeal No.87 of  2007

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.

Crl. Appeal No.87 of  2007

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  

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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:

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“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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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  

Crl. Appeal No.87 of  2007

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)

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DATED:  OCTOBER 6, 2010 NEW DELHI.

Crl. Appeal No.87 of  2007