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PETITIONER: STATE OF TAMIL NADU ETC.PERAJMAL BALLAJI & ORS.

       Vs.

RESPONDENT: SURESH (A-2) & ANR.STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       05/12/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 5TH DAY OF DECEMBER, 1997 Present:                Hon’ble Mr.Justice M.K. Mukherjee                Hon’ble Mr.Justice K.T. Thomas N.Natarajan, Sr.Adv.,  V.G.Pragasam, (S.  Tripathi) Adv. for Ms. Rani Jethmalani, Ms. Binu Tamta, Ranjit Kumar advs. with him for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:                             WITH             CRIMINAL APPEAL NOS. 155-156 OF 1991 THOMAS, J.      A young enceinte housewife fell from the top of a four- storeyed building  down on the payment of a street at Madras during the odd hours on the night of 9-6-1987, and died in a trice with  her skull  and the bones extensively broken into pieces.   Initially it  was taken  by the neighbours and the police as a case of suicide, but eventually it became a case of gruesome  murder.  Her husband, a flourishing businessman at  Madras   (now  Chennai)   and   his   brother   (another businessman) and two of their employees were put on trial in the Sessions Court for criminal conspiracy, rape and murder. One of  the culprits  was  made  an  approver  and  he  gave evidence in  support of  the prosecution case.  The Sessions Court acquitted  the husband  of the deceased, but convicted the other  two persons of murder and rape and sentenced both of them to death.      A Division  Bench of the High Court of Madras heard the reference which  was made  under Section  366 of the Code of Criminal Procedure  on the sentence of death, along with the appeals preferred  by the appeals preferred by the convicted persons as  well as  the appeal  preferred by  the State  in challenge of  the acquittal.   the  Division Bench confirmed the acquittal  and set  aside the  conviction  and  sentence passed by  the Sessions Court.  Hence the present appeals by special leave.      First accused  Ramesh Kumar  and  his  younger  brother Suresh Kumar  (A-2) hailed  from Rajasthan,  and  they  have settled down  in Madras.   Each  of them  acquired  separate business establishments.   Ramesh  Kumar,  the  eldest,  had

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married Kamla  Devi (the  deceased) who was then only 19 and belonged to  a less affluent family in Rajasthan, about four years before  her death.  Thereafter the couple lived on the top floor apartment of a multi-storeyed building situated on Thulasinga Mudali  Street at  Madras.  Second accused Suresh Kumar got  married to  a girl  from Rajasthan  a few  months before the  occurrence but  he did  not bring  his  wife  to Madras from  Rajasthan.  He too was residing with his eldest brother Ramesh  Kumar on  the 4th  floor  of  the  building. Kamla Devi  (deceased) had  a little child (Sandeep) who was only 4 years old when she died.      As the  business of  first accused  expanded he started entertaining a  feeling that  if he  had married from a rich family he would have got a handsome dowry.  This led to some estrangement between  the spouses.   Second  accused  Suresh Kumar did not see eye with Kamla Devi (deceased) for certain reasons of  his own,  one among  them alone  has come to the forefront in  evidence that  he believed that Kamla Devi was injecting hatred  in the  mind of  his brother  that A.2 was becoming a habitual drunkard.      In the  above backdrop, the synopsis of the prosecution case having an eerie profile, can be narrated as follows:      A couple  of days  prior to the death of Kamla Devi her husband Ramesh  had gone  abroad (Singapore)  in  connection with his  business and before he left India he and the other three culprits  had entered  into a  criminal conspiracy  to finish Kamla  Devi off  during his  absence.  After he left, second accused informed the remaining culprits that the best way to  achieve the target was to drop her down from the top floor of the building so that it would appear to the rest of the world that she had committed suicide.      On the  midnight of  9-6-1987 when  everybody else  was asleep the  three culprits  (A2-Suresh, A3-Kuman  Singh  and PW1-Bhoparam) moved  from the  room on  the 4th  floor where they were  to sleep  and entered the room where deceased was sleeping with  her little  child Sandeep.  They first gagged her  mouth   with  a   cloth  but   then  she  woke  up  and instinctively resisted  the onslaughts  of  the  assailants. But she  was overpowered  and the  third accused pressed her neck and  mouth on  the direction  of the second accused who was holding  her in  his grip  while she  was struggling  to squirm out of the lethal grip.  In that melee the bangles on her hand  broke down.   PW-1 caught hold of her legs and the second accused sexually molested her in that condition.  A.3 also ravished  her on  being prompted by the second accused. Though  PW-1 was also persuaded to do the same on her he did not do  it as  he found  that she was unconscious.  Then all the three  persons lifted  her up  and brought  her  to  the balcony and  tried to  drop  her  down.    But  somehow  she regained conclousness then and gripped on the parapet frieze but the assallants exerted greater force in pushing her down and she  lost her grip and fell deep down from such a height of the four storeyed building - she died instantaneously.      The entire  prosecution case  revolved on  the solitary evidence of the approver PW-1 Bhoparam.  Learned trial judge relied on  his evidence  with the  aid of some corroborative circumstances and  found A2 Suresh and A3 Kuman Singh guilty of rape and murder.      It was  difficult for  the High  Court to  act  on  the evidence of  the approver  mainly for  two distinct reasons: (1)  His   version  of   the  occurrence   is  fraught  with improbabilities and hence it did not inspire confidence; (2) He being  an accomplice  his evidence  is unworthy of credit even otherwise, as it did not receive adequate corroboration from any source.  hence the conviction and sentence were set

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aside by the High Court.      Learned counsel  for the  appellant contended  that the Division bench  of the  High Court  did not make a pragmatic approach to  the evidence  of PW-1,  and it  resulted in the improper rejection of the evidence of an eye witness to such a dastardly  perpetrated crime.   Counsel  further contended that if strict adherence to the rule of corroboration of the evidence of  an accomplice  witness is  insisted, as done by the High  Court in  this case,  no approver  evidence  would stand scrutiny  in any  case and  the consequence  would  be miscarriage  of   justice.     Learned  Judges  expressed  a regretful note  in the judgment by way of an epilogue in the following lines:      "We are  really pained to note that      prosecution was  not able  to bring      home the persons really involved in      this crime.  Even though there is a      lurking doubt in our mind as to the      involvement of  one or  more of the      accused in  this crime, they cannot      be  punished   on  such   a  doubt,      however strong it might be , ....      Following the  high  traditions  of      criminal   jurisprudence   in   our      country, we  are  not  inclined  to      send the accused to gallows on mere      suspicion, and  on the  evidence of      the approver  whose evidence stands      uncorroborated."      We have  perused the  evidence carefully and considered the reasoning  of the  learned Judges,  but we are unable to persuade ourselves  to concur  with the judgment of the High Court.      How Kamla Devi would have died can be inferred from the post-mortem appearances  noted by  PW-22 Dr.  Cecila  Cyril, (Additional Professor in the Department of Forensic Medicine of the Medical College, Madras) who conducted the autopsy on the dead  body.   The doctor  found that  the  deceased  was pregnant by  4 weeks.   After  listing all  the  ante-mortem injuries in  Ext. P-41  (post-mortem certificate) the doctor opined that her death might have been on account of the head injuries  as   well  as   asphyxia  due  to  smothering  and compression of  neck.   There are enough data to support the conclusion that  Kamla Devi  would have  been  smothered  by pressing her  mouth and  neck.   Injuries  Nos.1  to  7  are abrasions and  contusions and  lacerations around  the lips. Nos. 17  to 24 are similar injuries on the chin and neck and also on  the lower  part of the nose.  None of her teeth was affected.  Form all the above features we can unhesitatingly accept the  doctor’s opinion that Kamla Devi would have been subjected to forceful smothering.      The skull  of the dead body had extensive fractures and brain matter  was found protruding.  There were fractures on the sternum  and on  the ribs.   While  giving evidence  the doctor concurred with the suggestion of the prosecution that "there was  very good chance of the victim being alive after sustaining the injuries due to smothering and compression of neck when  she would  have been  in a  condition  of  shock. After smothering and compression of neck she could have been alive  for  a  few  minutes  depending  upon  her  power  of volition,"      PW-1 Bhopparam narrated the evidence which preceded and succeeded the  occurrence and gave a complete picture on the vivid details of the occurrence.  It would be unnecessary to repeat his evidence as it is consistent with the prosecution

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story summarised  above.   PW-1 deposed  that the neighbours and relatives  of the deceased were informed of the death of Kamla Devi  and they  all arrived  and her  husband A-1 also flew down  from Singapore  He further said that on the third day he  went o  the house  of his  brother-in-law (PW-6) and stayed there  for 6  days and  then went to Mahabalipuram (a suburb of Madras) where he got a temporary employment in the tea shop  of Pw-15.   On 24-6-1987 he happened to notice his photo in  a Tamil  daily and  then he  rushed back to PW-6’s house and made a shrift to him of all what happened and with the help of Pw-6 he surrendered to the police.      The High Court seems to have accepted the contention of the defence  counsel that  PW-1 would  have been  in  police custody from  10-6-1987 till 25-6-1987 (When he was produced before the magistrate).  The following reasons were advanced by the  high Court for accepting the said define contention. First is,  as first  accused had  offered money  to PW-1 for carrying out the operation PW-1 would normally have remained in the house until the money was paid.  (PW-1 could not have remained in  the same  house  as  tension  would  have  been mounting up  in his  mind and  it was  only natural  that he would have  moved  out  of  that  jinxed  house  instead  of lingering on  there as  money could have been collected even at a  later stage).   Second  is that  PW-1, was  unable  to remember the names of PW-6’s employees, and if was unable to remember the  names of PW-6’s employee, and if he had really stayed in  that house  he could have remembered those names. (This is  too fragile  a reasoning  as one  may or  may  not remember the  names of  such employees particularly his mind would then  have been  preoccupied with  thought  about  the horrendous crime  committed by  them).  The third is that he failed to  disclose the  incident to PW-6 or to his employer Pw-15.   (It is  too much  to expect  that PW-1  would  have readily divulged  it to  any one  else at the first instance because the whole episode was perpetrated by the culprits in secrecy).     Fourth  reason  is  that  PW-1  did  not  read newspapers during  the interregnum  and that  indicates  his absence in  the free  world.  (There is nothing on record to show that this employee of A.1 was regular newspaper reader, without which such an inference is out of place).      All the  above reasons  are hence  very tenuous grounds for disbelieving the version of PW-1 that he had stayed with Pw-6 and  PW-15.   Learned Judges  of the  High Court should have appreciated  his testimony in the light of the evidence of PW-6 and PW-15 against which nothing has been pointed out either by  the High  Court or  before us as to why those two witnesses should have perjured in court about PW-1’s sojourn with them.      The High Court did not believe the case of PW-1 that A- 2 and A-3 would have sexually ravished Kamla Devi.  The sole circumstance which  learned Judges highlighted on that score is the  absence of semen or supermatozoa in the vaginal swab collected from  the dead  body as  the result  of laboratory analysis of  the swab  showed. The  High Court seems to have overlooked the  following data available in the post-morterm report which  is a  very telling  circumstance regarding the sexual molestation the victim would have been subjected to;      "Bruising of  tissues on  right side  of vagina 2x1x1/2 cms. Bruising  is reddish blue in colour. Bruising 1x1/2x1/2 cms. over the anterior lip of the cervix."      Dr. Cecila  Cyril (PW-22)  had no  doubt that the above features are  consistent with the victim offering resistance against forcible  sexual intercourse.   The  doctor  witness emphatically repudiated  the suggestion  that  such  bruises could have been caused in a fall.  In view of the above, the

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High Court  went wrong  in negativing  the version  of  PW-1 regarding sexual ravage merely on the basis of non-detection of semen  or supermatozoa  in the vaginal swab.  There could be more  than one  explanation for  absence of  semen in the vaginal swab.   We  have no doubt that Kamla Devi would have been made a victim of a forcible sexual assault.      One of  the points  which dissuaded the High Court from believing the  version of  PW-1 is  the most  abominable and despicable act  attributed to  A.2 vis-a-vis his own sister- in-law.  High Court has stated thus on that aspect:      "Even if  there was some reason for A.2 to end the life of the  deceased with a view to secure peaceful life for his brother, certainly  he would  not have  resorted to the most inhuman method  of committing rape on his own brother’s wife that too, along with two of his servants."      Learned counsel  for the accused also repeated the same reasoning before  us in  support of his contention that such an act  of barbarity would be unthinkable and counter to the social order  for a  brother to  do it on his sister-in-law. We too  agree that  if A.2 had done those acts attributed to him then it would have been woeful and despicable of a human conduct.      We  have   considered  the  said  contention  with  the Seriousness it  deserves.   One thin  is clear that somebody had done  it one  her during  that night.   Whoever had done those acts  during that night i.e. by sexually molesting her and then dragging her and throwing her living body down from the balcony,  the assailant  would have been someone who was simmering with  unquenchable grudge  towards  her.    It  is extremely remote  that a  burglar or a stranger rapist would have  gatecrashed   into  the   house  and  done  all  those atrocities  on  that  helpless  woman  when  the  house  was occupied by  3 adult male members.  It must be remembered in this context  that even  the defence  had no suggestion that the deceased had any enemy outside, for, if she had any such enemy that fact would not have escaped from the knowledge of her husband,  if not of A.2 also.  If PW-1’s version is true A.2 had  his own grudge towards the deceased.  The intensity of that  grudge was  known only  to himself  or perhaps  the deceased also.  If A.2 had decided to kill his sister-in-law in such  a savagery  manner by throwing her from the balcony that itself would indicate the superlative degree of gravity of his  wrath towards  her.  With such a mind simmering with acerbity he  would as  well have  thought to  subject her to excruciating mental pain by devastating her womanhood in the manner it  was done  on her.  So the degree of woefulness of the  onslaught   is  not  enough  to  militate  against  the horrendous nature of the crime.      We are  hence totally  unable to agree with the view of the High  Court that  the  story  narrated  by  PW-1  lacked probability.   After all PW-1 is an accomplice and hence his narration would be incriminating to him also.      The  testimony   of  an  accomplice  is,  no  doubt,  a stigmatised evidence  in  criminal  proceedings.  It  is  on account of  the inherent  weakness which  such  evidence  is endowed with  that illustration  (b) to  Section 114  of the Evidence Act  suggests that  it is  open  to  the  court  to presume that  the uncorroborated  testimony of an accomplice is unworthy  of credit.   But  the legislature had advisedly refrained from  including  the  said  category  of  evidence within the  ambit of legal presumptions but retained it only within  the  area  of  factual  presumptions  by  using  the expression "the  court may  presume".   In order to make the position clear  the same  enactment has incorporated Section 113 saying that it is not illegal to convict a person on the

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uncorroborated testimony  of  an  accomplice.    The  raison d’etre for  such legislative  marshalling is  to enable  the court to  have its  freedom to  act on  the evidence  of  an accomplice in appropriate cases, even without corroboration, if the  court feels that a particular accomplice evidence is worthy of credence.      Thus, the law is not that the evidence of an accomplice deserves outright  rejection if  there is  no corroboration. What is  required is  to adopt great circumspection and care when dealing  with the  evidence of  an accomplice.   Though there is  no legal  desirable that  court  seeks  reassuring circumstances to  satisfy the  judicial conscience  that the evidence is true.      A Bench of three judges of this Court in Dagdu and ors. Vs. State  of Maharashtra,  [1977 (3)  SCC 68] has laid down the legal  position after making a survey of the case law by referring to  Rameshwar vs. State of Rajasthan, [AIR 1952 SC 54] and a number of other decisions of this Court as well as of English  courts.   Chandrachud...] (as  the learned Chief Justice then  was) has  stated for the three Judges Bench as follows:      "There  is  no  antithesis  between      Section 133 and illustration (b) of      section 114  of the  Evidence  Act,      because the  illustration only says      that  the  Court  ’may’  presume  a      certain state  of affairs.  It does      not seek  to raise a conclusive and      irrebuttable presumption.   Reading      the two together the position which      emerges   is    that   though    an      accomplice is  a competent  witness      and   though   a   conviction   may      lawfully     rest      upon     his      uncorroborated testimony,  yet  the      Court is  entitled to  presume  and      may   indeed    be   justified   in      presuming  in   the  generality  of      cases  that   no  reliance  can  be      passed  on   the  evidence   of  an      accomplice unless  that evidence is      corroborated      in       material      particulars, by which is meant that      there has  to be  some  independent      evidence tending to incriminate the      particular    accused     in    the      commission of  the crime........All      the  same,   it  is   necessary  to      understand that  what has  hardened      into a  rule of  law is not hat the      conviction   is   illegal   if   it      proceeds  upon  the  uncorroborated      testimony of an accomplice but that      the rule  of corroboration  must be      present to  the mind  of the  Judge      and  that   corroboration  may   be      dispensed with only if the peculiar      circumstances of  a  case  make  it      safe to dispense with it"      This is  not a  cases where evidence of PW-1 is totally bereft of  any reassuring  circumstance.  This occurrence as featured   by   Pw-1   is   supported   by   the   following circumstances: (1) Post-mortem appearances noted by PW-22 Dr. Cecila Cyril. (2)   broken bangles  found on  the floor of the room and on

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    the balcony (3)   The admission of A.2 and A.3 that they along with Pw-1      wee present in the same flat during that night.  [It is      quite improbable  that any  outsider would have made an      entry into this apartment during that night and with or      without the  help of  PW-1 would  have made  all  those      atrocious acts  least disturbing  the sleep of her four      year old son huddling on the mother or the sleep of A.2      and A.3]. (4)   The statement  by PW-6 that on 24-6-1987 Pw-1 told him      of this  incident in  which he  involved all  the three      culprits.      Dealing with  the last  corroborative circumstance i.e. the statement  made by PW - 1 to PW - 6 on 24-6-1987, we may have to  consider the  admissibility of  the said  statement Section 157 of the Evidence Act reads thus:      "In  order   to   corroborate   the      testimony of  witness,  any  former      statement  made   by  such  witness      relating to  the same  fact, at  or      about the  time when  the fact took      place,  or   before  any  authority      legally  competent  to  investigate      the fact, may be proved."      The section  envisages two  categories of statements of witnesses which can be used for corroboration.  First is the statement made  by a  witness to any person "at or about the time when the fact took place".  The second is the statement made by  him to  any authority  legally bound to investigate the fact.   We  notice that  if the  statement is made to an authority competent  to investigate  the fact such statement gains admissibility,  no matter  that it was made long after the incident.   But  if the  statement was  made to  a  non- authority it loses its probative value due to lapse of time. Then the  question is,  within how  much time  the statement should have  been made?  If it was made contemporaneous with the occurrence  the statement  has a  greater value  as  res justea and  then it  is substantive evidence.  But if it was made only  after some  interval of  time the statement loses its probative  utility as  res justea,  still it  is usable, though only for a lesser use.      What is  meant by  the expression "at or about the time when the  fact took  place"? There can be a narrow view that unless such  a statement  was made soon after the occurrence it cannot be used for corroboration.  A broader view is that even  if   such  statement  was  made  within  a  reasonable proximity of  time still  such statement  can  be  used  for corroboration.   The legislature  would not have intended to limit the  time factor  to close  proximity  though  a  long distance of  time would  deprive it  of its utility even for corroboration purposes.      We think that the expression "at or about the time when the fact  took place"  in Section  157 of  the Evidence  Act should be  understood in  the context according to the facts and circumstances  of each  case.   The mere fact that there was an  intervening period  of a  few days, in a given case, may not  be sufficient to exclude the statement from the use envisaged in  Section 157  of the  Act.    The  test  to  be adopted, therefore,  is  this;  Did  the  witness  have  the opportunity to  concoct or  to have  been tutored?   In this context the  observation of Vivian Bose, J. in Rameshwar vs. The State of Rajasthan (AIR 1952 SC 54) is apposite:      "There can be no hard and fast rule      about  the   ’at  or   about   the’      condition in Section 157.  The main

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    test is  whether the  statement was      made as  early as can reasonably be      expected in  the  circumstances  of      the  case   and  before  there  was      opportunity   for    tutoring    or      concoction".           (Emphasis supplied)      Here when PW-1 disclosed to his brother-in-law (PW6) on 24-6-1987 about  his version  of the  occurrence we have not come across  anything  to  indicate  that  PW-1  was  either tutored or  influenced by  anybody during  the  interregnum. Looking at  the  statement  from  that  perspective  we  are inclined to  treat it  as a  corroborative piece of evidence giving us  a  reassurance  regarding  the  truth  of  PW-1’s evidence in  court so  far as  the persons  involved in  the episode are concerned.      Shri Ranjit  Kumar, learned  counsel for  A.3 took much pains to  impress us  that PW-1’s  version that they trekked along  a   cornice  to  reach  deceased’s  room,  is  highly incredible as  they could  easily have  walked  through  the normal passage.   PW  1 has an explanation for choosing that circuitous route.   But  we are  not interested  to know why they chose  a longer passage to reach deceased’s room.  What we known  is that they reached her room during that midnight hour.      The above  discussion takes  us to the final conclusion that the  High Court  has seriously  erred in  upsetting the conviction entered  by the Sessions Court as against A.2 and A.3 The  erroneous approach  has resulted  in miscarriage of justice by  allowing the  two perpetrators  of  a  dastardly crime committed  against a helpless young pregnant housewife who was  sleeping in  her own apartment with her little baby sleeping by  her side and during the absence of her husband. We strongly  feel that the error committed by the High Court must be  undone by  restoring the  conviction passed against A.2 and A.3, though we are not inclined, at this distance of time, to  restore the  sentence of death passed by the trial court on the those two accused.      In the  result, we  allow the appeals and set aside the judgment of  the  High  Court  of  Madras  and  restore  the conviction passed  by the  trial court under Section 302 and 376 read  with Section 34 of the IPC as against A.2 - Suresh and A.3  - Kuman Singh, and we sentence them each to undergo imprisonment for  life  on  the  first  count  and  rigorous imprisonment for  a period  of 10 years on the second count. Sentences on  both counts  will run concurrnetly.  We direct the Sessions  Judge, Madras  (now Chennai) to take immediate steps to  put the  aforesaid convicted  persons in  jail for undergoing the sentence