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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: GANGULA SATYA MURTHY

DATE OF JUDGMENT:       19/11/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J.      A girl  of sixteen (Satya Vani) was raped and throttled to death.  This was  the gravamen  of the charge put against respondent Gangula  Satya Murthy  alias Babu. Sessions Court convicted him  under Section 502 and 376 of the Indian Penal Code and sentenced him to imprisonment for life and rigorous imprisonment for  7 years respectively under the two counts. But on  appeal, a Division Bench of the High Court of Andhra pradesh acquitted him. This appeal by special leave has been filed by  the State  of Andhra  Pradesh in  challenge of the said order of acquittal.      We shall  state the  facts of the case as put fourth by the prosecution:      Satya Vani  was a  student of  10th Standard.  She  was residing with  her parents  in  the  village  Talluru  (East Godawari District). Respondent Babu, a married youngman, was residing with  his mother  in their  house situated near the house of the deceased. Satya Vani used to visit respondent‘s house  to   see  television   programmes  as  there  was  no television set available in her house. Respondent developed, in course  of time,  an infatuation  for Satya Vani, but the overtures made by him not favourably reciprocated by her.      On the  evening of  26.11.1991. Satya  Vani was sent by her parents  to the house where her grand-parents lived with some errand.  While returning  from there  she stopped  into respondent‘s  house  for  seeing  the  telecast  programmes. Respondent was  all alone  then in  that house as his mother had gone  to the town to see a cinema show. Taking advantage of the  absence of  anyone else  in  the  house,  respondent subjected Satya  Vani  to  sexual  intercourse  by  forcibly putting her  on the  cot. When she threatened that she would complain it  to her  parents respondent  caught hold  of her neck and  throttled her  to death. A little later respondent went out of the house bolting it from outside.      As Satya  Vani did  not return  home even  after a song time  her  parents  became  panicky  and  they  made  hectic enquiries for  her. When respondent‘s mother reached home by about 10 P.M., she sound Satya Vani‘s dead body lying on the cot  in   her  house,   and  she  immediately  conveyed  the

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frightening new to her anxious parents.      Police was  informed of  the matter  and an  FIR  under Section 174  of the Code of Criminal Procedure was prepared, and the  inquest on  the dead  body  was  held  by  the  Sub Inspector of  Police. During  autopsy it  was revealed  that Satya Vani was subjected to sexual intercourse and her death was due to throttling.      On 2.12.1991, respondent was physically produced before the police  by two residents of the locality (PW-6 and PW-7) on the  premise that  respondent had  admitted his  guilt to them. A  letter  which  Satya  Vani  had  addressed  to  the respondent  was   also  delivered   to  the   police.  After completing the investigation, respondent was challaned.      Sessions court  found on  evidence, which  is  entirely circumstantial, that  respondent had raped the deceased girl and killed her by throttling. Accordingly the respondent was convicted and sentenced as aforesaid.      The following  circumstances were found by the sessions court as  established firmly  by the  prosecution: (1) Satya Vani was  seen entering the house of the respondent by about 5.30 P.M.: (2) After some time respondent was seen going out of the  house bolting  the door  from outside:  (3) Death of Satya Vani  took place  inside the  house of  the respondent some time  between 6 P.M. and 10 P.M.; (4) She was subjected to sexual  intercourse before  her death and she died due to throttling: (5)  Respondent alone  was present  in the house during the  relevant time  besides the  deceased; (6)  Extra Judicial confession  was made  by the respondent to PW-6 and PW-7.      The Division Bench of the High Court of Andhra Pradesh, however, expressed  the view  that possibility of deceased‘s death due  to consumption  of poison, could not be ruled out in this  case. Learned Judges entertained the doubt that the injuries on  the neck  including the  fracture of  the hyoid bone could have ben post-mortem injuries. Further, the extra judicial confession  spoken to by PW-6 and PW-7 was to acted on by  the High Court due to certain infirmities pointed out in the  judgment. Resultantly,  the High  Curt reversed  the judgment of  the sessions  court and  passed  the  order  of acquittal.      Learned counsel,  who argued  for the  State, seriously assailed the  reasoning of  the High  Court for reaching the findings. When  we perused  the records  in the light of the arguments addressed by both sides we are of the opinion that the  High  Court  has  manifestly  erred  in  reversing  the findings arrived  at by the trial court. We shall now advert to our reasons.      Dr. K.  Trinadahrao (PW-10)  of the Government Hospital who conducted  the post-mortem  examination has recorded his observations in the certificated as follows:      "Injuries   are    ante-mortem   in      nature.   Two    finger    pressure      abrasions were present on the right      as well  as on the left side of the      neck   placed   anteriorly,   which      continued up  to the  root level on      the  back  of  the  neck.  A  fresh      vaginal tear  on the  inner vaginal      walls posterior  to  labia  minora,      fracture of  the right  hyoid  bone      and extravagation  of blood on both      sides of  the neck were found. Both      lungs were congested. Emphysematoas      bullae were  present on the surface      of both the lungs."

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    When the vaginal swabs collected from the deceased were examined  under  microscope,  presence  of  dead  non-motile spermatozoa were observed by the doctor.      The High Court has reached the conclusion that fracture of the  hyoid was  likely to  be a post-mortem injury caused while the  dead body  was carried  in  a  rickshaw.  Learned Judges have  advanced the following reasons for reaching the said conclusion  : (1)  Witnesses who  were present  at  the inquest as  well as the investigating officer did not notice any abrasion  or other  injury on the nick of the dead body; (2) Dr.  Trinadharao (PW-10)  admitted in  cross-examination that "if pressure is applied by fingers, only contusions are possible bur not abrasions." (3) PW-10 has further stated in his deposition  that if  the fracture  on the hyoid bone was ante-mortem there would have been corresponding bleeding but no such bleeding noted by the doctor during the autopsy. (4) The doctor  witness has  stated  that  it  is  possible  for causing fracture  of the  hyoid bone  when a  dead  body  is carried in auto-rickshaw.      We cannot  resist expressing our distress that the High Court has  chosen to advance fragile reasons to upset a well reasoned conclusion  reached by  the trial  court  that  the deceased  was   throttled  to  death.  The  mere  fact  that witnesses present  at the  inquest had  escaped noticing the small abrasions  on the neck of the dead body is too tenuous a ground  for holding  that such  abrasions would  have come into existence  after the  inquest was  held overruling  the definite opinion  of the  medical man (who saw the injuries) that they were ante-mortem injuries. It is totally incorrect to say  that no  abrasion would  be caused  if  pressure  is applied with fingers would quite possibly cause abrasions as well. Similarly  the observation  of the  High Court that no bleeding was  noticed at  the site  of the  fracture of  the hyoid bone  is not  factually correct  as PW-10 had noted in the post-mortem  certificate that there was extravagation of blood on both sides of the neck.      The High  Court has  adverted to vet another reason for holding that  death  might  not  have  been  caused  due  to throttling. The vomitted material found on the cot and mouth of the  dead body was not sent for chemical examination, and hence the  High Court  concluded that  " it is also possible that death  might  have  been  caused  due  to  asphyxia  by poisoning." We are disturbed very much as the High Court has overlooked, if  not ignored, the evidence of Dr. Trinadharao (PW-10)  that   viscera  comprising   of  stomach  contents, intestine, piece  of  lever  and  also  a  kidney  had  been forwarded to  the chemical laboratory for analysis and PW-10 had reserved  his final  opinion till  he got  the result of such  analysis.   When  he   later  received   the  chemical examination report  he pronounced his final opinion that the death was  due to  asphyxia as no poison was detected in the viscera. The report of the chemical examiner is available in the records.  Section 293 of the Code would enable the court to use  the said  document  in  evidence.  Inspite  of  such unassailable materials  the High  Court has  arrived at  the finding that  "in the facts and circumstances of the case it cannot be  ruled out  in its  entirety that  death  was  not caused due to poisoning."      One of  the circumstances  relied on by the prosecution is that respondent had confessed the guilt to PW-6 and PW-7. In other  words, prosecution  relied on  the extra  judicial confession of  the respondent  spoken to  by  the  said  two witnesses, they  buttonholed the  respondent and  confronted him with  certain questions  pertaining to  the death of the deceased and then respondent had blurted out to them of what

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happened. Witnesses further deposed that respondent took out a letter and showed it to them. Witnesses thereupon took him to the  police station  where that letter was also produced. PW-14 -  Sub Inspector  of Police  confirmed that  those two witnesses brought  the respondent  to the police station and produced Ext. P-13 letter.      Truth  of   the  evidence   of  PW-6  and  PW-7  stands vouchsafed by  Ext. P-13 letter as the same was proved to be a letter  written by  the deceased  to the respondent. PW-12 Assistant Director,  Forensic Science  Laboratory,  who  was also a  Handwriting Expert  examined the  handwriting on the letter with  the admitted  handwriting of the deceased found in some  answer sheets  (which  police  collected  from  the Principal of  the School  where Satya  Vani studied - PW-13) PW-12 gave  cogent reasons for his conclusion that both were written by  the same  person. A  reading of  the contents in that letter  admits of no doubt that it was addressed to the respondent in this case.      The aforesaid  extra judicial  confession was relied on by the  trial court but the High Court did not act on it for two reasons.  First is  a seeming disparity between the time of making  the confession  as spoken to by the witnesses and the time  mentioned by the police on the strength of station records. The  second reason  is that the said extra judicial confession was  reduced to  writing as  Ext. P-7, inside the police station  and hence  it is  hit by  Section 26  of the Evidence Act.      It is  true that  in the  deposition PW-6 and PW-7 have said that  it was  at 7  A.M. that  the respondent  made the confession to  them. But the Sub Inspector said that accused was produced  in the  police station  at 7.30  P.M. We think that much should not have been made out of that disparity as there could be a possibility of making an error in recording the time A.M. for P.M. We say this because both PW-6 and PW- 7 uniformly said that they took the respondent to the police station situated  about 3  kilometers away.  As  the  police records show  that they produced him at 7030 P.M. it is only inferential that  respondent would  have made the confession on the evening and not during morning hours. At any rated it is not  proper to  jettison an  otherwise  sturdy  piece  of evidence of  extra judicial confession on the ground of such a rickety premise.      The other reasoning based on Section 26 of the Evidence Act is  also fallacious. It is true any confession made to a police officer  is inadmissible  under Section 25 of the Act and that  ban is further stretched through Section 26 to the confession made  to any  other person  also if the confessor was  then   in  police  custody.  Such  "custody"  need  not necessarily be  post arrest custody. The word "custody" used in Section 26 is to be understood in pragmatic sense. If any accused is  within the  ken of  surveillance of  the  police during which  his movements  are restricted  then it  can be regarded as  custodial surveillance  for the  purpose of the Section. If  he makes  any confession  during that period to any person be he not a police officer, such confession would also be  hedged  within  the  banned  contours  outlined  in Section 26 of the Evidence Act.      But the  confession made  by the respondent to PW-6 and PW-7 was  not made  while he was anywhere near the precincts of the  police station  or during  the surveillance  of  the police. Though  Ext. P-7 would have been recorded inside the police station  its contents were disclosed long before they were reduce  to writing.  We are  only  concerned  with  the inculpatory statement  which respondent had made to PW-6 and PW-7 before they took him to the police station. So the mere

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fact that the confession spoken to those witnesses was later put in  black and  white is  no reason  to cover it with the wrapper of unadmissiblility. We find that the High Court has wrongly sidelined the extra judicial confession.      The fact that body of (Satya Vani) was found on the cot inside the  house  of  the  respondent  is  a  very  telling circumstance against  him. Respondent owed a duty to explain as to  how a  dead body  which was  resultant of  a homicide happened to  be in  his house.  In the  absence of  any such explanation  from   him  the   implication   of   the   said circumstance is definitely adverse to the respondent.      High  Court  has  extricated  the  appellant  from  the indictment of rape on the erroneous assumption that it would have been a consented copulation. Learned Judges have relied on two  circumstances in support of the said assumption. One is that  there was  no nail  mark on  the breast  or face or thigh or  private  parts  of  the  deceased  for  indicating resistance offered  by her  Second is  that PW-10 doctor did not notice  any hymen  for the  deceased. In that realm also the High  Court committed  serious  error  in  skipping  the contents of Ext P-13 letter and also the injury on the right side of  the posterior  labia minora,  (we have mentioned it supra). of  course that  injury by it self is not conclusive proof of  resistance but it cannot be ignored altogether. In Ext. P-13 letter, she cautioned the respondent not to have a leering on  her. She  deprecated in her letter the idea of a married man  enjoying another  lady by  terming it an act of "grave sin".  Further, in his extra judicial confession made to PW-6  and PW-7, respondent had said that he took the girl by force  and kept  her on  the cot as he was long nurturing the lust  to enjoy  her. The  doctor had found fresh vaginal tear on  the fight side of the inner vaginal wall posterior. This injury  is indicative  of forcible  sexual intercourse. According to  the medical opinion also the presence of fresh vaginal tear, showed that the deceased had been subjected to sexual intercourse  prior to  her death.  The very fact that the  sexual   intercourse  was   soon   followed,   if   not contemporaneous with,  by the  act of throttling is strongly suggestive of  a vehement  resistance offered  by the female victim.      We have absolutely no doubt that the above circumstance are sufficient  to reach the irresistible inference that she was ravished by the respondent despite her refusal.      The High  Court after considering the medical evidence, while dealing with the question of rape opined:      "There is  no  direct  evidence  to      show that  the  accused  alone  had      sexual intercourse  with  her.  The      deceased was aged 16 years."      We are  rather distressed on this comment. By using the word "alone"  the High  Court almost  cast a  stigma on  the prosecutrix as  if, apart  from the  appellant,  there  were other persons  also who  had sexual  intercourse  with  her. There is  no basis  at all for such an assumption. There was no warrant  for recording  such a  finding and if we may say so, with  respect, the  finding is an irresponsible finding. We express  our strong  disapproval of  the approach  of the High Court  and its casting a stigma on the character of the deceased porsecutrix.  Even if  the Curt  formed an opinion, from the  absence of  hymen, that  the victim  had    sexual intercourse prior to the time when she was subjected to rape by the  appellant, she  had every  right to refuse to submit herself to  sexual intercourse  by  the  appellant,  as  she certainly was  not a  vulnerable object  or prey  for  being sexually assaulted  by anyone  and this position becomes all

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the more  clear from  the contents of the letter Ex. P-13 as already noticed.      We, therefore,  conclude  that  the  High  Court  erred substantially  in  upsetting  the  conviction  and  sentence passed by  the sessions  Judge supported by sound and sturdy reasons. We,  therefore, allow this appeal and set aside the order of  acquittal. We  restore the conviction and sentence passed on  the respondent/accused  by the  trial court.  The bail bond  shall stand  cancelled. The  respondent shall  be taken into  custody forthwith  to undergo the remaining part of the sentence.      Before parting  with the  case, we  would like to point out  that   the  Courts   are   expected   to   show   great responsibility while  trying an  accused on charges of rape. They must  deal with such cases with utmost sensitivity. The Courts should  examine the  broader probabilities  of a case and not  get swayed by minor contradictions or insignificant discrepancies in  the statement  of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all  the more  important because  of late  crime  against women in  general and rape in particular is on the increase. It is  an irony that while we are celebrating woman‘s rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the courts must  deal   with  rape  cases  in  particular  with  utmost sensitivity and  appreciate the  evidence in the totality of the background  of the entire case and not in isolation. One of us  (Dr. Anand  J.) has  observed in  State of Punjab vs. Gurmit Singh and others (1969) 2 SCC 384 thus :      " The courts, therefore, shoulder a      great responsibility  while  trying      an accused on charges of rape. They      must  deal  with  such  cases  with      utmost sensitivity."      We  think   it  is   appropriate  to   reiterate  those observations in this case.