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CASE NO.: Appeal (crl.) 1119-1120 1998

PETITIONER: STATE, GOVT.  OF NCT OF DELHI

       Vs.

RESPONDENT: SUNIL AND ANOTHER

DATE OF JUDGMENT:       29/11/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

     THOMAS,  J.   Two sex maniacs libidinously  ravaged  a tiny  female  tot  like wild beasts and  finished  her  off. Police  after  investigation found that the two  respondents herein  are  those two fiends.  A Sessions Court upheld  the said police version as correct.  He sentenced one of them to death  penalty  and  the other to life imprisonment,  but  a Division  Bench  of  the  High Court of  Delhi  declined  to believe  the police version as true and consequently the two respondents  were acquitted.  This appeal by the State is by special leave.

     The  little  girl was Anuradha and she was  aged  only four.   She was fondly taken away from her mothers house on the forenoon of 5.9.1992.  Her dead body was taken up by her mother  on  the same night from the house of  first  accused Sunil.   When the doctor conducted autopsy on the dead  body he  described  the  dimensions of the imprints left  in  the infantile  body  reflecting  a horrible  sexual  molestation inflicted  on  the child.  Next day the police arrested  the two  accused  (A1-Sunil and A2-Ramesh) and after  completing the  investigation charge-sheeted both of them for  offences under Sections 364, 376, 377 and 302 read with Section 34 of the  Indian Penal Code.  After the trial the sessions  court convicted  both  of them under all the aforesaid counts  and sentenced  A2  Ramesh to death and A1 Sunil to  imprisonment for  life  on  the  charge  of  murder  and  awarded  lesser sentences for the remaining counts.

     Details  of  the prosecution case are  the  following: Anuradhas  mother  Sharda (PW10) was known to A1 Sunil  and his  mother (Giano Devi).  Sharda had stayed in the house of Giano  Devi  for  a few days and their  acquaintance  became closer.   Sharda  was working in a tube-light  manufacturing factory during those days.  As she needed a place to live in Giano  Devi arranged a small hutment (Jhuggi) with the  help of  another  lady (PW8 Tara) who was residing close-by.   On the  occurrence  day  Sharda went to the  factory  for  work leaving  her child Anuradha in the custody of PW8-Tara.   At about  11 A.M.  Sunil visited them and expressed to PW8-Tara that he would take the child and her clothes as well as some domestic  utensils to PW10.  Though PW8 suggested that  this should  be  done only if Sharda permits, A1-Sunil  took  the

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child and her clothes and the utensils from his house during a short time when PW8-Tara had gone out to fetch milk.  When she came home in the night she learnt from PW8-Tara that her child  was  taken  away by Sunil.  So she  went  to  Sunils house.   It  was about 9.00 P.M.  then.  To her  dismay  she found  her  little  child  lying  completely  nude  next  to A2-Ramesh,  on  the second floor of the house, who was  then deep  in  his  sleep.   Then  Sunil, who  was  found  in  an inebriated  mood,  hurled a remark that I  have  dispatched Anuradha  to  heaven. She felt concerned as to  what  would have  happened to the child.  It was then she realised  that her  child was breathless.  PW10- Sharda then took the child to  the hospital, but the doctor who examined her pronounced her dead.

     PW1  -  Dr.  Basant Lal conducted the autopsy  on  the dead  body  of the child at 12.00 noon on 7.9.1992.  In  his opinion the child would have died about 36 to 48 hours prior to  the  autopsy.  He gave full details in  his  post-mortem report  about the features noticed by him on the dead  body. The  corpse  was  full  of abrasions  and  contusions.   The prominent  among  them were counted by the doctor as  25  in number  and he described the situs and dimensions of all  of them.   Among them, oval fashioned multiple abrasions on the left  cheek  appeared to him as marks of biting.   Both  the upper  and  lower lips of the child were bruised  violently. Marks  of violent handling of both the thighs, lower abdomen and  pubic  region  are also described by the  doctor.   The vaginal  orifice is described by the doctor in his report as follows:   Labia majora and minora swollen and reddish blue in  colour.  Vaginal orifice dilated and blood is coming out of  it.  Right labia minora showing tears 1.6 x 0.1 cm.  and on  left side labia minora showing tear in an area of 1.5  x 0.2 cm in vertical plane.  Labia majora showing contusion on both sides in an area of 3 x 2 cm each.

     About  hymen  the  doctor described  thus:   Hymen showing  tear  at 5 and 6 Oclock position which  was  going upto  the vaginal wall and triangular in shape in an area of 1.5  x 1 x 1 cm.  There were tears on the sides and back  of urethra  opening upto hymen in an area of 1.4 x 1.2 cm.   in triangular fashion.

     About the anus the doctor described as follows:

     Dilated and blood was coming out of it.  The diameter was  1.5  cm.   The  area around  the  orifice  was  showing swelling with reddish contusion in an area of 2 cm.

     DR.   Basant Lal (PW-1) further noted that the vaginal orifice  was so badly mutilated that one middle finger could be  easily admitted into it.  Even the tongue was not spared in that violence as the doctor found its position like this:

     The tongue was showing abrasion 0.5 x 0.5 cm.  on its front  right  outer aspect with contusion  around.   Reddish bluish in colour  Bite mark.

     During examination of the head of the body PW1 noticed thick  layered bluish-reddish effusion of blood on the right temporal  parietal region.  Though there was no fracture  of the  skull the duramater on the left side looked bluish, and there  was thick subdural haemotoma in an area of  20x10x0.8 cm.    and  one  fist  full   clotted  blood,   and   patchy subarachnoid  haemorrage all over the brain which were  also

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noticed by the doctor.

     From  the  woeful and eerie features described by  the doctor  no  court could possibly escape from the  conclusion that  the  little  child was violently  molested,  ravished, raped  and sodomised besides penile penetration having  been made  into her mouth.  The remnants of extensive mangling of the  tender body of the child would reflect the  possibility of  more than one rapist subjecting the child to such beasty ravishment.

     Though  the Sessions Court acted on the above  medical report as reliable it is unfortunate that the Division Bench of  the High Court expressed misgivings about it.  The  only basis  for  entertaining doubt about the correctness of  the findings recorded by PW1  Dr.  Basant Lal was that when the deceased  was  first  examined by one Dr.  Gajrat  Singh  at 11.40  P.M.  on 5.9.1992 he noted only multiple bruises all over  the body in Ext.PW11/1 MLC(Medico Legal Certificate). It  was  the said doctor who pronounced the girl  dead.   He made  the above entry in the MLC.  It must be noted that Dr. Gajrat  Singh  was not examined as a witness in  the  court. Apparently  that  doctor  was  not  disposed  to  conduct  a detailed  examination on the dead body either because he was pretty  sure that the body would be subjected to a  detailed autopsy  or because the doctor himself was in a great hurry. Whatever  be the reason, no court could afford to ignore the report  of  the  doctor  who   conducted  the  autopsy  with meticulous  precision about all the features noticed, merely on  the strength of what another doctor had scribbled in the MLC at the initial stage.

     Learned  Judges of the High Court should have  noticed that  the  evidence  of PW1  Dr.  Basant Lal was  not  even controverted by the defence as no question was put to him in cross-examination  by  the defence counsel.   His  testimony ought  to  have been given due probative value  particularly when nothing was shown to doubt the evidence of that medical practitioner.   Learned counsel for the respondents was  not able  to  pick  out even a single answer from  his  evidence which  could  at  least throw a modicum of doubt  about  the correctness  of  his evidence.  Hence we have to proceed  on the  premise that whatever PW1  Dr.  Basant Lal - found  on the dead body were the actual position noticed by him during autopsy.   The  Sessions  Judge has  rightly  accepted  that evidence and no exception can be taken thereto.  Thus, it is beyond  doubt  that the little girl was raped and  sodomised and  that  death was due to the injuries sustained  in  that exercise.

     When  the above premise is so certain the task of  the court  is  narrowed down to the limited area i.e., were  the two respondents the rapists or is there any reasonable scope to think that somebody else would have done those acts.

     The  trial  court  came  to the  conclusion  that  the culprits  are  the  two  respondents  and  none  else.   The Sessions  Judge  found that prosecution has established  the following  circumstances:  (1) Sunil (1st accused) had taken the  child  from  the house of PW8  Tara by about  noon  on 5.9.1992.   (2) The child was recovered from the house of A1   Sunil and she was then found breathless.  (3) That  child was  lying naked by the side of A2  Ramesh who was in  deep sleep  when the mother of the child lifted her up.  (4) A1 Sunil,  who  was then in inebriated condition,  blurted  out

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that  Anuradha  was sent to heaven.  (5)  The  blood-stained nicker  of Anuradha was later recovered from the house of A2  Ramesh on the basis of a statement given to the police.

     The  trial  court concluded on the strength  of  those circumstances  that  both the respondents are liable  to  be convicted for murder, rape and unnatural offence, while A1 Sunil  is  additionally liable for kidnapping the child  for murder.   Accordingly  the  trial court convicted  both  the respondents and sentenced them as aforesaid.

     Regarding  the  first  circumstance that it was  A1 Sunil  who  took  the  child from the care of  PW8    Tara, prosecution has examined PW8  Tara and her neighbour PW12 - Dariba  besides  the evidence of PW10  Sharda.  PW8   Tara said  that she knew both the accused since they used to stay in  the house of Sharda for some days earlier.  According to PW8    Tara,  the child and her mother had  stayed  in  her Jhuggi  for  a few days and on the date of occurrence  A1 Sunil  visited  the Jhuggi at 11 A.M.  and requested her  to let  the  child Anuradha be taken with him along  with  some utensils  and  clothes.  The suggestion was that he  had  to take  the child to the factory where Sharda was working.  It appears  that PW8  Tara was reluctant to allow him to  take the child presumably because she did not know whether Sharda herself  wanted  the  child  then.   But  during  the  short interval  when she went out of the house for purchasing milk A1    Sunil had taken away the child.  As she did not  know where  Sharda was working and as the child was taken away by A1   Sunil who was familiar to Sharda no immediate step was taken  by  PW8    Tara and she chose to  wait  till  Sharda returned.

     The  above evidence of PW8  Tara is to be appreciated in  the light of what PW10  Sharda herself had said.   PW10 deposed  that she was quite familiar with A1  Sunil and she and  the  child had stayed at Sunils house for a  few  days sometime  back.   PW10  has  stated  that  on  the  date  of occurrence  when  she returned to Taras house she was  told that  Sunil  had  taken the child away by saying  that  PW10 would  take  the  child back in the  evening.   She  further deposed that she went to A1s house at 9.30 P.M.  along with PW8    Tara and PW12  Dariba and collected the child  from that  house and the child was then lying next to A2  Ramesh who  too  was  then  sleeping.   As  the  child  was   found breathless  and  in view of the comment blurted out by A1 Sunil, she rushed the child to the hospital.

     The  Division  Bench  of   the  High  Court  expressed difficulty  to  believe the said version of the  prosecution i.e.   A1 Sunil had taken away the child from the Jhuggi  of PW8  Tara.   The reasons of the High Court for it are:   (1) There  was  no  need for A1 Sunil to take  the  clothes  and utensils  even if he wanted to take the child to its  mother Sharda.   (2) There is nothing to indicate that PW10  Sharda made  any  enquiry about the clothes and utensils.  (3)  PW8 Tara  could  not explain as to what she understood  when  A1 Sunil  wanted  to take away the child with him.  (4)  Nobody from  the neighbourhood of Tara was examined to  corroborate her   evidence.   (5)  The  testimony   of  PW8   Tara   was contradictory with the evidence of PW10 Sharda.

     We  perused the evidence of PW8-Tara, PW10-Sharda  and their  neighbour PW12-Dariba.  True, there are discrepancies

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between  the evidence of those three witnesses, but we  have not   come   across  any   discrepancy  worth  quoting   for consideration  as  they are immaterial.  Such  discrepancies are  common features in the testimony of any two  witnesses. It  was too much of a strain for the judicial mind to ferret out  some  minor discrepancies as between the  testimony  of those  three witnesses.  Even the other reasons advanced  by the  Division  Bench of the High Court are ex facie  puerile and   evidence  given  on  oath   by  the  bereaved   mother PW10-Sharda  and  her  other associate PW8-Tara,  cannot  be jettisoned  on such insignificant reasons.  In our view  the High Court ought not to have sidelined the evidence of those three witnesses.

     The  circumstance  relating  to the  recovery  of  the bloodstained  nicker is a formidable one.  But the  Division Bench  did  not  attach any importance to it solely  on  the ground  that  the  seizure  memo was  not  attested  by  any independent witness.  Here the circumstance is that when A2- Ramesh  was  interrogated by PW17-Investigating  Officer  he said:  Her underwear is in my house and I can point out the place  where  it is. Pursuant to the said  information  the police recovered the nicker from the house of A2-Ramesh.  It was  identified by PW10-Sharda as her childs nicker.   When the  nicker  was subjected to chemical test it was  revealed that  the under-cloth of the child was stained with blood of O  group  (same is the blood group of Anuradha).   The  said statement  of  A2-Ramesh  would fall within the  purview  of Section  27  of the Evidence Act as the fact discovered  was that  the  nicker  of the deceased was in the house  of  A2- Ramesh.   The  presumption which can be drawn  therefrom  is that  it  was A2 who removed the nicker and kept it  in  his house.   A2  had  no explanation to be  offered  about  that circumstance.

     Recovery  of  the nicker is evidenced by  the  seizure memo  Ext.PW-10/G.  It was signed by PW10-Sharda besides its author  PW17-Investigating  Officer.  The Division Bench  of the  High  Court  declined to place any weight on  the  said circumstance  purely on the ground that no other independent witness  had  signed  the  memo but it was  signed  only  by highly  interested  persons.   The   observation  of   the Division Bench in that regard is extracted below:

     It  need  hardly  be  said  that  in  order  to  lend assurance that the investigation has been proceeding in fair and   honest  manner,  it  would   be  necessary   for   the Investigating  Officer to take independent witnesses to  the discovery  under Section 27 of the Indian Evidence Act;  and without  taking  independent  witnesses  and  taking  highly interested  persons and the police officers as the witnesses to  the discovery would render the discovery, at least,  not free from doubt.

     In  this  context  we may point out that there  is  no requirement  either under Section 27 of the Evidence Act  or under  Section  161  of the Code of Criminal  Procedure,  to obtain  signature of independent witnesses on the record  in which  statement  of  an  accused  is  written.   The  legal obligation  to call independent and respectable  inhabitants of  the locality to attend and witness the exercise made  by the  police is cast on the police officer when searches  are made  under Chapter VII of the Code.  Section 100(5) of  the Code  requires  that  such  search shall be  made  in  their presence  and  a list of all things seized in the course  of

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such search and of the places in which they are respectively found,  shall  be prepared by such officer or  other  person and  signed by such witnesses.  It must be remembered that search  is  made to find out a thing or document  which  the searching  officer  has  no prior idea where  the  thing  or document  is  kept.  He prowls for it either  on  reasonable suspicion  or  on some guess work that it could possibly  be ferreted  out in such prowling.  It is a stark reality  that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such  process many such articles or documents are likely  to be displaced or even strewn helter-skelter.  The legislative idea  in  insisting  on  such searches to  be  made  in  the presence  of two independent inhabitants of the locality  is to  ensure the safety of all such articles meddled with  and to  protect the rights of the persons entitled thereto.  But recovery  of an object pursuant to the information  supplied by  an  accused in custody is different from  the  searching endeavour  envisaged in Chapter VII of the Code.  This Court has  indicated  the difference between the two processes  in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs.   S.   Sardar  Ali & ors.  (1983  SC  1225).   Following observations  of Chinnappa Reddy, J.  can be used to support the  said  legal proposition:  Section 100 of the  Criminal Procedure  Code  to which reference was made by the  counsel deals with searches and not seizures.  In the very nature of things  when  property is seized and not recovered during  a search,  it is not possible to comply with the provisions of sub-section  (4)  and  (5) of section 100  of  the  Criminal Procedure  Code.  In the case of a seizure [under the  Motor Vehicles Act], there is no provision for preparing a list of the  things  seized  in the course of the  seizure  for  the obvious  reason  that  all  those   things  are  seized  not separately but as part of the vehicle itself.

     Hence it is a fallacious impression that when recovery is  effected  pursuant to any statement made by the  accused the   document  prepared  by   the   Investigating   Officer contemporaneous  with  such  recovery  must  necessarily  be attested  by independent witnesses.  Of course, if any  such statement leads to recovery of any article it is open to the Investigating  Officer  to take the signature of any  person present  at  that  time, on the document prepared  for  such recovery.  But if no witness was present or if no person had agreed  to  affix  his  signature on  the  document,  it  is difficult  to  lay down, as a proposition of law,  that  the document  so prepared by the police officer must be  treated as  tainted and the recovery evidence unreliable.  The court has  to  consider the evidence of the Investigating  Officer who  deposed to the fact of recovery based on the  statement elicited from the accused on its own worth.

     We  feel that it is an archaic notion that actions  of the  police  officer  should  be  approached  with   initial distrust.   We  are  aware that such a notion  was  lavishly entertained  during  British period and policemen also  knew about  it.  Its hang over persisted during  post-independent years  but it is time now to start placing at least  initial trust  on the actions and the documents made by the  police. At  any  rate, the court cannot start with  the  presumption that the police records are untrustworthy.  As a proposition of law the presumption should be the other way around.  That official acts of the police have been regularly performed is a  wise principle of presumption and recognised even by  the

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legislature.   Hence when a police officer gives evidence in court  that  a certain article was recovered by him  on  the strength  of the statement made by the accused it is open to the  court to believe the version to be correct if it is not otherwise  shown  to be unreliable.  It is for the  accused, through  cross-examination of witnesses or through any other materials,  to show that the evidence of the police  officer is  either unreliable or at least unsafe to be acted upon in a  particular  case.   If the court has any good  reason  to suspect  the truthfulness of such records of the police  the court  could  certainly take into account the fact  that  no other  independent  person  was  present   at  the  time  of recovery.   But it is not a legally approvable procedure  to presume  the police action as unreliable to start with,  nor to  jettison  such action merely for the reason that  police did  not  collect signatures of independent persons  in  the documents made contemporaneous with such actions.

     In  this case, the mere absence of independent witness when PW17 recorded the statement of A2-Ramesh and the nicker was  recovered  pursuant  to the said statement,  is  not  a sufficient  ground to discard the evidence under Section  27 of the Evidence Act.

     Thus  on consideration of the entire evidence in  this case  we have no doubt that the trial court had come to  the correct conclusion that the two respondents were the rapists who  subjected  Anuradha to such savagery  ravishment.   The Division  Bench  of  the  High Court has  grossly  erred  in interfering with such a correct conclusion made by the trial court  as  the  reasons adopted by the High Court  for  such interference  are very tenuous.  Nonetheless it is difficult to  enter  upon a finding that the respondents  are  equally guilty  of murder of Anuradha.  In the opinion of PW1 doctor the  child died due to intracranial damage consequent  upon surface  force  impact to the head.  The said  opinion  was made with reference to the subdural haemotoma which resulted in  subarachnoid  haemorrage.  Such a  consequence  happened during  the  course of the violent ravishment  committed  by either both or by one of the rapists without possibly having any  intention  or  even knowledge that their  action  would produce  any  such  injury.   Even so,  the  rapists  cannot disclaim  knowledge  that the acts done by them on a  little infant  of such a tender age were likely to cause its death. Hence  they  cannot  escape conviction from the  offence  of culpable homicide not amounting to murder.

     In  the result, we set aside the impugned judgment  of the  High  Court.  We restore the conviction passed  by  the trial  court under Section 376 and 377 read with Section  34 of the IPC.  The trial court awarded the maximum sentence to the respondents under the said counts i.e.  imprisonment for life.   The fact situation in this case does not justify any reduction of that sentence.  We also convict the respondents under  Section 304 Part II, read with Section 34 of the  IPC though it is unnecessary to award any sentence thereunder in view of the sentence of imprisonment for life awarded to the respondents under the other two counts.

     This appeal is disposed of accordingly.