TaxTMI 
TaxTMI 
2010 (10) TMI 1207
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....ing 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 of 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. Rageshw....
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....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 of 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 of 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 stat....
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....xs.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 of 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....
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....d 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 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 t....
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....ter 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.....
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....tion against the deceased to the University against her appearing in both examinations of M.Com and LLB in order to pressurize the deceased to 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 January 1996 riding his motorcycle wearing a helmet with an intact visor and that on t....
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....inding too has been reversed by the High Court in appeal on the plea that the onus to prove his defence lay on the 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 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 ....
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....tted 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. 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 notic....
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..... 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 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....
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....d 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 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 ....
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.... 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 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....
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....d 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 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. (though these witnesses ultimately turned hostile). Th....
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....has been submitted by Mr. Sushil Kumar that these items had been retained by Inspector Lalit Mohan till the 25th of January 1996 and 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 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 photocop....
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....anuary 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 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 art....
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.... 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 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,....
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....005 (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 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 accu....
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....as 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, 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 ....
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.... 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 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 that she had immediately called her PSO who made a call to the ....
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....nt 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 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 condemned as reprehensible. 28. We are, therefore, of the opinion that circumstances 1 to 3 which have been found by two courts against the ....
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....verse, 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 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....
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....mber 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." 33. Undoubtedly, the observations are extremely relevant for the purpose of this case but each case has to be seen on its own fac....
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....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 the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a 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 ....
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....essary 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 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 bas....
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.... 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 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....