CIRCUMSTANTIAL
EVIDENCE : REQUIREMENTS
SHARAD BIRDHI CHAND SARDA V. STATE OF MAHARASHTRA
[1984] INSC 118 (17 July 1984): 1984 Cri.L.J. 1738 = AIR 1984 SC 1622
“It is well settled that the prosecution must stand or fall on
its own legs and it cannot derive any strength from the weakness of
the defence. This is trite law.
However, where various links in a chain are in themselves
complete, then a false plea or a false defence may be called into aid
only to lend assurance to the Court. In other words before using the
additional link it must be proved that all the links in the chain are
complete and do not suffer from any infirmity. It is not the law that
where there is any infirmity or lacuna in the prosecution case the
same could be cured or supplied by a false defence or a plea which is
not accepted by a Court. [162C-E] 3:2. Before a false explanation can
be used as additional link, the following essential conditions must
be satisfied: [165E]
1. Various links in the chain of evidence led by the
prosecution have been satisfactorily proved; [165E]
2. The said circumstance point to the guilt of the accused with
reasonable definiteness and; [165G]
3,The circumstances is in proximity to the time and
situation.[165H] If
these conditions are fulfilled only then a Court can use a false
explanation or a false defence as an additional link to lend as
assurance to the Court and not otherwise. On the facts and
circumstances of the present case this does not appear to be such a
case. There is a vital difference between an incomplete chain of
circumstances and a circumstance, which, after the chain is complete,
is added to it merely to reinforce the conclusion of the court. Where
the prosecution is enable to prove any of the essential principles
laid down in Hanumant's case the High Court cannot supply the
weakness or the lacuna by taking aid of or recourse to a false
defence or a false plea. [166A; 166D-E] 92 3:3.
Before a case against an accused vesting on circumstantial
evidence can be said to be fully established the following conditions
must be fulfilled as laid down in Hanumat's v. State of M.P. [1953]
SCR 1091. [163C]
1. The circumstances from which the conclusion of guilt is to
be drawn should be fully established; [163D]
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty; [163G]
3. The circumstances should be of a conclusive nature and
tendency;[163G]
4. They should exclude every possible hypothesis except the one
to be proved; and [163H]
5. There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability
the act must have been done by the accused. [164B] These five golden
principles constitute the panch-sheel of the proof of a case based on
circumstantial evidence and in the absence of a corpus deliciti.
[164B] Hanumant v. The State of Madhya Pradesh [1952] SCR 1091;
Tufail (Alias) Simmi v. State of Uttar Pradesh [1969] 3 SCC 198;
Ramgopal v. State of Maharashtra AIR 1972 SC 656;
RECOVERY
OF DEAD BODY AT THE INSTANCE OF THE ACCUSED – THERE CAN BE
THREE PRESUMPTIONS
AGAINST THE ACCUSED
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 495 OF 2006
Ningappa Yallappa Hosamani
and Ors. ...Appellants
Versus
State of Karnataka and
Ors. ...Respondents
With
Criminal Appeal No. 496 OF 2006
Decided on 8th
May, 2009.
JUDGMENT
Dr.
ARIJIT PASAYAT, J.
1. Challenge in these
appeals is to the order passed by a Division Bench of the Karnataka
High Court. The High Court by the impugned judgment allowed the
appeal and set aside the conviction of appellants 3, 4 and 5 (accused
No.3-Sri Giriyappa @ Gireppa, A-4 Sri Yallappa S/o Arujunappa
Yaraddi, A-5 Sri Vithal S/o Kalakappa) before it. The compensation of
Rs.50,000/- awarded to Girijabai (PW-4) was reduced to Rs.20,000/-.
The present appeal is by A1, A6 and A7.
2. Seven accused
persons had faced trial for alleged commission of offences punishable
under Sections 143, 148, 341, 109, 302 and Section 201 read with
Section 149 of the Indian Penal Code, 1860 (in short the `IPC'). The
occurrence took place in the intervening night of 31.1.2005 around
midnight.
3. Prosecution version
in a nutshell is as follows:
Namadev Muralidhar
Huvvannavar (the deceased) resided in Bommanabudni village along with
his wife-Girijabai (PW.1) and his five children, out of whom
Panduranga (PW.5) is one. He was in politics and due to his
activities, he had incurred enmity of many persons. He was an accused
in a session case on the allegation of having committed about ten
years prior to 2005, the murder of Arjunappa Yaraddi (father of
accused No.4) having set on fire the sugarcane crop of Yallappa
Yaraddi. He was later acquitted in the said case. Due to that, he had
enmity towards accused No.4, and for certain other reasons towards
other accused also. On 30.1.2005 he left for Mudhol at about 4.00
p.m., on his CD Don motorcycle bearing Reg.No.KA- 48/E-1688 (M.0.15).
In Mudhol, he met Kallanagouda Timmanagouda Patil of Utturu (P.W.12)
at about 8.00 p.m., and told that he was returning to Bommanabudni
via Halki. Later at 9.00 p.m. he was seen at Halki by Gyaneshwar
Ramappa Manemmi (P.W.11) going on the motorcycle towards Bommanbudni.
He did not return home on that day and on the next day as well.
Therefore, Girijabai (P.W.1) and Panduranga. (P-W.5) started the
search for help. They traced the movement of Namadev till he left
Halki and thereafter they could not get any trace of Namadev. In the
meantime, they learnt that there were certain motorcycle marks in the
land of Vijaya Mandandappa Sutar of Mingapura and when they went
there, they found certain tyre marks of a motor cycle corresponding
with the tyre marks of Namadev's motor cycle. Therefore suspecting
possible abduction of Namadev, P.W.1 lodged a complaint against
Yallappa Arjunappa Yaraddi (accused No.4) and Vital Kalakappa Navi
(accused No.5). That complaint was received by Sri Malakappa, P.S.I.
of Lokapur Police Station (P.W.21), who registered a case at Crime
No.16/2005 and forwarded F.I.R. (Ex.P.27) to the JMFC, Mudhol. He
went to the place i.e., the land of Vijaya Manadappa Sutar as shown
by P.W.1 and conducted the spot mahazar as per Ex.P.2. He also
collected information in the neighbouring villages. He learnt that on
that night i.e., at 8.00 p.m. of 30.1.2005, P.W.10-Vishnu Tulasigeri
had seen the accused Nos.1, 2 and 4 to 7 near Bommanabudni bus stand
talking to each other and later P.W.16-Laxmappa Mullauru having
seen the accused No.2 and 7 going on one motor cycle and accused
Nos.1 and 6 going on another motor cycle towards Belgaum road. He
also learnt that at that time the accused No.7 was on the motorcycle
with a gunny bag and when P.W.16 had asked him about the same, the
accused No.7 had replied that it contained a jaggery block intended
to be given to his relative. The police also learnt that on
the same night i.e., at about 3.00 a.m. on 30.1.2005, the accused
Nos.1, 2, 6 and 7 had been seen by P.W.7-Hanamath Gouda
Patil near the canal and
two motor cycles parked on the road. That was further confirmed by
the information given by P.W.8-Bhimappa Maleguddi. In furtherance of
the same, the police suspected the accused Nos.1, 2 6 and 7 in the
matter and launched a search for them. The accused Nos.1 and 2 were
apprehended on 3.2.2005. On interrogation by P.W.20-Basavareddi
Lingadal, C.P.I. of Mudhol circle (investigating officer), the
accused Nos.1 and 2 volunteered information to show the place where
Namadev had been murdered and also the place where his dead body had
been buried. In furtherance of that information,
police officer in-charge went to the
place near the land of Vijaya Manandappa Sutar and later to a place
as shown by accused Nos.1 and 2. There the place near the canal shown
by the accused Nos.1 and 2 was dug up resulting in the discovery of a
gunny bag (M.0.9),which contained a dead body. That
dead body was identified by Namadeva's wife-P.W.1-Smt.Girijabai and
Namadev's son-Sri Pandurganga (P.W.5) as that of Namadeva. In
furtherance of the information furnished by the accused Nos.1 and 2
regarding involvement of other accused, a search was launched and
accused Nos.4 and 5 were arrested on 7.2.2005.
In furtherance of the voluntary information furnished by them, sticks
M.Os.11 and 12
allegedly
used by them to beat Namadev were recovered. The accused No.6
was arrested on 11.2.2005. The
interrogation of accused No.6 resulted in leading them to the river
and showing the place where, according to him, they had drowned the
motorcycle (M-0.13) of Namadev after his murder. A
swimmer-Lavappa Laxmappa Nagaral (P.W.15) was sent to that place, who
brought up the said motorcycle (M.0.13). That was
recovered under panchanama. Later the accused No.7 was arrested on
26.2.2005 at Panchagavi village and in furtherance of the information
furnished by him, the pick-axe (M.0.14) allegedly used for burying
the dead body was recovered. After further investigation, a charge
sheet was placed against the accused.
The accused pleaded
not guilty and claimed to be tried. The prosecution examined 23
witnesses and closed its case. About the deceased having been seen by
the persons for the last time, the prosecution examined the
deceased's wife (PW.1), the deceased's son (P.W.5) and P.W.s 10, 11
and 12. About the movements of the accused to connect
them with the murder of
Namadev, prosecution has examined P.Ws.10, 13 and 16. Though P.W.13
has not supported the prosecution and P.W.16 only partially
supported, the evidence of these two witnesses shows the movement of
the accused Nos. 1, 2, 6 and 7. As regards the motive for murder,
P.Ws 6, 17 and 18 have been examined. P.Ws. 2, 3 and 4 are panchas.
P.W.14 dug up the land from where the gunny bag containing the dead
body of Namadev was recovered. According to the prosecution, extra
judicial confession had been made by the accused before P.W.9 and the
drowned motorcycle was recovered after P.W.15 went down into the
river and brought up the motorcycle. P.W.18 is the junior engineer,
who has drawn the sketch of scene of the offence. Post mortem
examination on the dead body was done by P.W.19 doctor. P.Ws. 20 to
23 are police officers.
The trial Court on
the basis of the cumulative effect of the circumstantial evidence
concluded that the prosecution had proved that it was the accused who
had committed the murder of Namadev and had disposed of the dead body
by putting it in a gunny bag and burying it near the canal of
Chickakhandi village and throwing motor cycle in the river. In
appeal, conviction of A-3 to A-5 was set aside as noted above. A-6
and A-7
were acquitted of all
charges relating to Section 302 and 109 read with Section 149 IPC.
The conviction of A-1 and A-3 under Sections 302 and 109 read with
Section 149 IPC was converted to Section 302 read with Section 34
IPC. The conviction of A-1, A-2, A-6 and A-7 under Section 201 read
with Section 149 IPC was converted to under Section 201 read with
Section 34 IPC while the sentence is maintained.
4. Learned counsel
for the accused appellants submitted that the circumstances relied on
clearly established the accusations and the only case is recovery
under Section 27 of Indian Evidence Act, 1872 (in short the `Evidence
Act'). The present appellants are A-1, A-6 and A-7 so far as these
appeals are concerned.
5. The basic challenge
is that on the basis of statement made under Section 27 of the
Evidence Act the conviction cannot be maintained because it cannot be
said that the circumstances have been established.
6. Learned counsel for
the respondent-State on the other hand supported the judgment.
7. As regards the
involvement of the other accused, the prosecution relied on the
recovery of the motorcycle in furtherance of the voluntary
information furnished by the accused No.6. The said accused was
arrested on 11.2.2005 and as spoken to by P.W.20 investigating
officer, in furtherance of the voluntary information furnished by
him, they went to the river near Chickakhandi where a place in the
river was shown by the accused No.6 as the place, where motor cycle
had been drowned. P.W.15-Lavappa
Laxmappa Nagaral had been
taken there and he went into the river at the place shown by the
accused No.6 and brought up the motorcycle M.0.15. The said
motorcycle was later identified as that of Namadev. The
cross-examination of P.W.15 does not show anything to doubt his
version.
8. It was submitted by
the appellants that according to P.W.16, the accused Nos.1 and 6 were
seen in the police station on 3.2.2005 and this theory of the accused
No.6 being arrested on 11.2.2005 and on his voluntary information
furnished on that day, the motor cycle having been recovered in
presence of P.W.15, cannot be believed. Of course P.W.16 in the
cross-examination says that when he went to the police station, he
saw the accused Nos. 1 and 6. It was submitted by the State that
perhaps it may be a typographical mistake and it may be the accused
Nos.1 and 2 since the records show that it is the accused Nos.1 and
2, who had been arrested on 3.2.2005. The
possibility of typographical mistake is possible. However, even then
taking into consideration the contention of the learned counsel for
the appellants, at the most it may amount to an illegal custody by
the police till 11.2.2005, thereafter recovering the motorcycle on
11.2.2005. That may create some doubt regarding the claim of the
police with regard to the recovery. But considering the evidence of
P.W.15, we find that this suspicion is unfounded. It is quite
possible that the police detained accused no.6 unnecessarily from
3.2.2005 to 11.2.2005. We find no reason to discard the alleged
recovery of motorcycle in furtherance of the information furnished by
accused No.6. As regards the accused No.2, the prosecution
relies on the deposition of P.W.7 who saw the accused Nos.1, 2, 6 and
7 near the canal at about 3 a.m. of 31.1.2005. In addition P.W.12 saw
the accused Nos.1, 2, 6 and 7 near the bridge. Earlier on 30.1.2005
at about 11.00 p.m. all those four persons had been spotted by
P.W.16. All these depositions conclusively show that from 11.00 p.m.
on 30.1.2005 till about 4.00 a.m. of 31.1.2005, the accused Nos.1, 2,
6 and 7 were seen together. On complete perusal of the evidence, we
find that on 30.1.2005 Namadev left his house at 4.00 p.m. and went
to Mudhol on his motorcycle bearing No.KA-28/A 1688 (M.0.15). He was
seen at Inspection Bungalow, Mudhol, at 8.00 p.m. by
P.W.12-Kallanagouda Patil of Utturu village. Namdeva told P.W.12 that
he was returning to Bommanabudni via Halki. At 9.00 p.m. he was seen
at Halki by Jnaneshwara (P.W.11) going on the motorcycle towards
Bommanabundi. Thereafter nobody saw him alive.
9. The accused Nos. l,
2 and 4 to 7 were seen by Bommanabudni bus stand at about 8.00 p.m.
of 30.1.2005 by P.W.10 Vishnu Tulasigeri. The evidence of P.W.16
Laxmappa Mullurur shows that the accused Nos.2 to 7 were seen at
11.00 p.m. on that day on the motor cycle. That witness also saw the
accused Nos. 1 and 6 on another motorcycle along with other. His
evidence further shows that the accused No.7 was riding the
motorcycle along with the accused No.2 on that motorcycle and another
motorcycle was driven by the accused No.6-Hanamant Ramappa Kivudi on
which the
accused No.1-Ningappa
Yallappa Hosamani was sitting with a gunny bag. When he enquired from
the accused No.1, about the gunny bag, the accused No.1 is stated to
have replied that it contained jaggery block, which was to be given
to his relative's house. It is submitted by the appellants that even
if this is accepted as true, there was nothing wrong in Ningappa
Yallappa Hosamani (accused no.1) taking a jaggery block to his
relative's house and that cannot fasten the liability of transporting
the gunny bag containing dead
body. The time on which
this incident is stated to have happened is at about 11 p.m. on
30.1.2005 and later the same persons were seen near the canal with
both the motorcycles. Therefore the story of gunny bag containing the
jaggery block is not believable. As held by the Courts below it must
have contained the dead body of Namadev. Taking into consideration
this factor, we find that the prosecution has conclusively proved
that the accused Nos.1, 2, 6 and 7 had disposed of the dead body of
Namadev by putting it in a gunny bag and burying it at a place near
the canal, which was detected in furtherance of the voluntary
information furnished by accused No.1 and 2. It
is also proved that the
motorcycle of Namadev was drowned in the river by the accused, which
was later recovered in furtherance of the voluntary information
furnished by accused No.6. As regards accused Nos.1 and 2, since the
dead body of Namadev was recovered in furtherance of the voluntary
information furnished by them, the natural presumption, in the
absence of explanation by them is that it was those two persons, who
had murdered Namadev and had buried the dead body.
10. As regards recovery
of the dead body is concerned, the High Court noted as follows:
As regards the
second ground urged by the learned counsel for the appellants, there
also what has been stated is that a rumour had been spread that four
persons had committed the murder of Namadeva and his dead
body had been buried near the canal and later he was called on
2.3.2005 by Lokapur police. The mahazars regarding the
place of offence of murder conducted on 3.2.2005 and the place were
the dead body of Namadev was recovered were conducted in the early
hours of morning of 3.2.2005
and it is not unlikely
that information immediately spread in the village and immediately
Namadev's dead body had been placed near the place of canal.
Therefore, this cannot be taken as indicating the knowledge the
people about the burial of the dead body even before the dead body of
Namadev was detected in furtherance of the voluntary information
furnished by the accused Nos.1 and 2. For this reason, we do not
accept the interpretation put forth by the learned counsel for the
appellants with regard to the recovery of dead body of Namadev. The
evidence of P.W.20-investigating officer shows that the accused Nos.1
and 2 were arrested on 3.2.2005 at Mahalingapura and in furtherance
of the interrogation, they furnished information and police and
panchas were
led by the accused Nos.1
and 2 to a place near the canal. This claim of P.W.20 has been
corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who
says that he had accompanied the police and panchas to the place
where the accused Nos.1 and 2 were taken and the accused Nos.1 and 2
showed a place as a place of burial of Namdev's body. Then, his
deposition further shows that he and C.Ws 22, 24 and 25 were asked to
dig the land and when they dug the land, they found a gunny bag. That
gunny bag contained a dead body which was later identified by PWs 1
and 5 as the body of Nadadev. We have very carefully gone through the
evidence of PWs 14 and 20 in this regard and find no material to
disbelieve the version of PW-14 that the place was shown
by A-1 and A-2 and that
when the place was dug up, they found a gunny bag containing
Namadev's dead body. This evidence conclusively shows that the
accused Nos. 1
and 2 had buried the said
gunny bag containing the dead body of Namadev and that it was
detected in furtherance of the voluntary information furnished by
them.
11.
In State of Maharashtra vs. Suresh (2000 (1) SCC 471) it
was
observed
as follows:
"Three
possibilities are there when an accused points out the place where
dead body or an incriminating material was concealed without stating
that it was concealed by him. One
is that he himself would have concealed it. Second
is that he would have seen somebody else concealing it. And
the third is that he would have been told by another person that it
was concealed there. But
if the accused declines to tell the criminal court that his
knowledge about the concealment was on account of one of the last two
possibilities the criminal court can presume that it was concealed by
the accused himself. This is because the accused is the
only person who can offer the explanation as to how else he came to
know of such concealment and if he chooses to refrain from telling
the court as to how else he came to know of it, the
presumption is a well-justified course to be adopted by the criminal
court that the concealment was made by him. Such an interpretation is
not inconsistent with the principle embodied in Section 27 of the
Evidence Act."
12.
Above being the position, we find no merit in these appeals which
are
accordingly
dismissed.
(Dr. ARIJIT PASAYAT) ................J
(ASOK KUMAR GANGULY)..........J
New Delhi,
May 08, 2009
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RAPE
AND MURDER – CONVICTION ON CIRCUMSTANTIAL EVIDENCE
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO.836 OF 2005
Aftab
Ahmad Anasari ... Appellant
Versus
State of
Uttaranchal ...Respondent
JUDGMENT
J.M.
PANCHAL, J.
1. The
appellant and one Mumtaz were prosecuted for commission of rape and
murder of Yasmeen aged five years daughter of Nayeem Ahmad and for
causing disappearance
of evidence
of those offences. The learned Additional District and Sessions
Judge, First FTC Court, Nainital, by judgment dated January 7, 2004,
rendered in Sessions Trial No.252 of 1998, convicted the appellant
and Mumtaz under Sections 302, 376 and 201 of Indian Penal Code (IPC)
and imposed penalty of death sentence
for commission of offence punishable under Section 302
IPC as well as R.I. for life for
commission of offence punishable under Section 376
IPC and a fine of Rs.10,000/- in default R.I. for one year and
R.I. for seven years and a fine of Rs.5,000/- in default R.I. for one
year for commission of offence punishable under Section 201 IPC.
2. Feeling
aggrieved, the appellant and Mumtaz preferred Criminal Appeal No. 36
of 2004 whereas Reference made under Section 366 of the Code of
Criminal Procedure by the learned Additional Sessions Judge in view
of death sentence passed against both the accused was registered as
Criminal Reference 1 of 2004 before the High Court of Uttaranchal at
Nainital. The Division Bench of the High Court, by judgment dated
December 17, 2004, has rejected the Reference and partly allowed the
appeal by acquitting accused Mumtaz but affirmed the
conviction of the appellant under Sections 302, 376 and 201 IPC.
The death penalty awarded to the appellant for commission of offence
punishable under Section 302 IPC is modified and the appellant is
sentenced to R.I. for life for commission of the offence punishable
under Section 302 IPC. The High Court has further maintained sentence
imposed on the appellant under Sections 376 and 201 IPC. The
confirmation of the conviction of the appellant under Sections 302,
376 and 201 IPC by the High Court and imposition of different
punishments for those offences, has given rise to the instant Appeal
by Special Leave.
3. Mr.
Nayeem Ahmad is resident at Mundia Pistor Village, Bajpur, District
Udham Singh Nagar, Uttaranchal. His daughter Yasmeen aged
five years having fair complexion and round face, wearing
frock, underwear and sleepers was playing near his house at about
5.00 p.m. in the evening of February 5, 1998. It was noticed that she
was missing from the place where she was playing and, therefore,
Nayeem Ahmad made frantic search about Yasmeen at the places of all
his relatives but she could not be traced. As search made by him did
not yield any result, he filed a missing report on February 6, 1998
at Bajpur Police Station mentioning, inter alia, that his daughter
had disappeared while playing near his house and, therefore, steps be
taken to trace her out. On February 8, 1998, Report (Exhibit
Ka.2) was lodged at Bajpur Police Station by
Shamim Ahmad
who is real brother of Nayeem Ahmad stating, inter alia, that Yasmeen
aged about five years daughter of his elder brother Nayeem Ahmad
while playing near the house of Nayeem Ahmad had disappeared at about
5.00 p.m. in the evening of February 5, 1998 for which Nayeem Ahmad
had lodged a missing report at the Police
Station, but
at about 6.00 a.m. on February 8, 1998, her dead body was found lying
on the public way in front of the house of Haji Khursheed, son of
Bashir Ahmad of village
Bajpur and,
therefore, legal action be taken. On receiving this information,
concerned police personnel reached the place where dead body of the
deceased was lying. The
inquest on
the dead body of the deceased was held and necessary arrangements
were made for sending the dead body for post mortem examination.
The post mortem examination was carried out on February 8, 1998.
The examination revealed that the deceased was subjected to rape
and thereafter strangulated. On February 9, 1998, the Investigating
Officer, on the basis of the information given by the informer,
arrested both the accused persons under Sections 302, 376 and 201
IPC. While in custody, the appellant and Mumtaz made disclosure
statements to the Investigating Officer pursuant to which the
appellant discovered one frock with blood marks, one white cotton
underwear with black stripes having blood stains and one bed sheet of
light green colour with plenty of blood marks from the house of
sister of the appellant. The articles discovered were seized
under a panchnama and sent to forensic science laboratory for
analysis. The Investigating Officer recorded the statement of those
persons who were found to be conversant with the facts of the case.
On receipt of report from the analyst and on completion of
investigation, the appellant and Mumtaz were charge- sheeted in the
Court of learned Judicial Magistrate, First Class for commission of
offences punishable under Sections 302, 376 and 201 IPC.
The
offences punishable under Sections 302 and 376 IPC are exclusively
triable by a Court of Sessions. Therefore, the case was committed to
the Court of learned
Additional
District and Sessions Judge, Nainital for trial. The learned Judge
framed necessary charges against the appellant and Mumtaz for
commission of offences
punishable
under Section 302, 376 and 201 IPC. The same were read over to them.
They pleaded not guilty to the same and claimed to be tried.
Therefore, prosecution examined
seven
witnesses and produced documentary evidence to prove its case against
the appellant and Mumtaz. After recording of evidence of
prosecution witnesses was over, the learned Judge explained to the
appellant and Mumtaz the circumstances appearing against them in the
evidence of prosecution witnesses and recorded their further
statement as required by Section 313 of the Code of Criminal
Procedure, 1973. In the further statements, the appellant and Mumtaz
pleaded ignorance in respect of certain facts whereas in relation to
some other facts their claim was that they were false. The appellant
and Mumtaz had expressed desire to examine defence witnesses which
was granted by the learned Judge. The appellant, therefore,
examined DW1, Ms. Bilkis and DW2, Lakhbinder Singh alias Lakha in
defence. The learned Judge noticed that the case was entirely
resting upon circumstantial evidence. After holding that the deceased
died a homicidal death, the learned Judge appreciated the evidence
and held that four circumstances, namely, that (1) both the accused
were seen by PW-3, Naseed Ahmad, at about 4.30 a.m. on 8.2.1998
fleeing away from near the place where the dead body of deceased
Yasmeen was found after some time; (2) on the disclosure statement
made by the appellant, blood stained frock and underwear of the
deceased and blood stained bed sheet were recovered; (3) underwears
of both the accused, seized, were stained with human blood and semen;
and (4) extra-judicial confession was made by the appellant before
PW-5, Anand Swaroop, are firmly established, to bring home guilt
of the
accused under Sections 302, 376 and 201 IPC. The learned Judge
noticed that the chain of circumstances established was complete,
cumulative effect of which was indicating that in all human
probability, the offences were committed by the appellant and Mumtaz
and by none other. In view of abovementioned conclusions, the learned
Judge convicted the appellant and Mumtaz under Section 302, 376 and
201 IPC. Thereafter, the learned Judge heard the appellant and Mumtaz
on the question of sentence to be imposed on them for commission of
abovementioned offences. The learned Judge noticed that this was the
rarest of rare case falling within the purview of guidelines laid
down by this Court in Maulai & Anr. Vs. State of M.P. AIR 2000 SC
177 and imposed death penalty on both the accused for commission of
offence punishable under Section 302 IPC. The learned Judge further
imposed punishment of R.I. for life and a fine of Rs.10,000/- and in
default R.I. for one year for commission of offence punishable under
Section 376 IPC. The learned Judge further imposed sentence of
R.I. for seven years and a fine of Rs.5,000/- and in default R.I. for
one year for commission of offence punishable under Section 201 IPC
by judgment dated January 7, 2004. The imposition of death sentence
resulted into Criminal Reference under Section 366 of the Code of
Criminal Procedure, 1973. The appellant and Mumtaz also being
aggrieved by the judgment of the Trial Court preferred Criminal
Appeal No.36 of 2004 before the High Court of Uttaranchal at
Nainital. The reference and appeal were heard together. The
High Court on re-appreciation of evidence came to the conclusion that
three circumstances were proved by the prosecution, namely, (1) both
the appellants were seen by PW3, Naseem Ahmad at about 4.30 a.m. on
February 8, 1998 fleeing from near the place where the dead body of
the deceased was found; (2) blood stained frock and underwear of the
deceased and blood stained bed sheet were recovered pursuant to
voluntary disclosure statement made by the appellant; and (3) extra
judicial confession was made by the appellant before PW-5, Anand
Swaroop. The Division Bench by judgment dated December 17, 2004 has
partly allowed the appeal. The High Court has
set aside
the conviction of Mumtaz recorded by the Trial Court but confirmed
the conviction of the appellant recorded by the Trial Court under
Sections 302, 376 and 201 IPC. The High Court has further modified
the sentence of death imposed on the appellant for commission of
offence punishable under Section 302 IPC and awarded R.I. for life
whereas sentences awarded for commission of offences punishable under
Sections 376 and 201 have been confirmed.
4. This
Court has heard the learned counsel for the parties and considered
the documents forming part of the appeal. It is relevant to notice
that the prosecution has not
claimed that
the rape and murder of the deceased was witnessed by anyone and no
direct evidence regarding the same is adduced before the court.
Admittedly, the whole case against the appellant rests on
circumstantial evidence. The law relating to circumstantial evidence
is well settled. In dealing with circumstantial evidence, there is
always a danger that conjecture or suspicion lingering on mind may
take place of proof. Suspicion howsoever strong cannot be allowed to
take place of proof and, therefore, the Court has to judge watchfully
and ensure that the conjectures and suspicions do not take place of
legal proof. However, it is no derogation of evidence to say that it
is circumstantial. Human agency may be faulty in expressing
picturization of actual incident but the circumstances
cannot fail. Therefore, many a times, it is aptly said that "men
may tell lies, but circumstances do not". In cases where
evidence is
of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should, in the first instance, be fully
established. Each fact must be proved individually and only
thereafter the Court should consider the total cumulative effect of
all the proved facts, each one of which reinforces the conclusion of
the guilt. If the combined effect of all the facts taken
together is conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that one or more
of
these facts,
by itself/themselves, is/are not decisive. The circumstances proved
should be such as to exclude every hypothesis except the one sought
to be proved. But this
does not
mean that before the prosecution case succeeds in a case of
circumstantial evidence alone, it must exclude each and every
hypothesis suggested by the accused, howsoever extravagant and
fanciful it might be. There must be a chain of evidence so far
complete as not to leave any reasonable ground for conclusion
consistent with the
innocence of
the accused and it must be such as to show that within all human
probability, the act must have been done by the accused. Where the
various links in a chain are in themselves complete, then a false
plea or a false defence may be called into aid only to lend assurance
to the Court. If the circumstances proved are consistent with the
innocence of the accused, then the accused is entitled to the benefit
of doubt. However, in applying this principle, distinction must be
made between facts called primary or basic on the one hand and
inference of facts to be drawn from them on the other. In regard to
the proof of basic or primary facts, the Court has to judge the
evidence and decide whether that evidence proves a particular fact or
not and if that fact is proved, the question arises whether that fact
leads to the inference of guilt of the accused person or not. In
dealing with this aspect of the problem, the doctrine of benefit of
doubt applies. Although there should be no missing links in the case,
yet it is not essential that every one of the links must appear on
the surface of the evidence adduced and some of these links may have
to be inferred from the proved facts. In drawing these inferences or
presumptions, the Court must have regard to the common course of
natural events, and to human conduct and their relations to the facts
of the particular case.
5. Having
noticed the relevant principles governing a case based on
circumstantial evidence, this Court proposes to consider the question
whether the case against the appellant is proved. The
appellant, at the time of incident was in his early 20's. He is
resident of village Patia Nagla, P.S. Gatpur, Tehsil Thakurdwara,
District Muradabad. His sister Ms. Bilkis, DW-1, was married to Kabir
Ahmad of village Bajpur where the first informant is residing.
The appellant used to visit and stay at the house of his sister. It
may be mentioned that the Trial Court was of the view that four
circumstances mentioned above were proved by the prosecution.
6. The
fact that deceased Yasmeen was subjected to rape and died a homicidal
death is not disputed before this Court by the appellant. This
fact stands amply proved by the
reliable
testimony of Dr. J.S. Rawat, who performed autopsy on the dead body
of the deceased and contents of post mortem produced at Exhibit Ka.5.
7.
Similarly the fact that naked dead body of deceased Yasmeen with
injuries was found lying at about 6.00 a.m. on 8.2.1998 in front of
the house of Haji Khursheed is
amply borne
out from the trustworthy testimony of PW-1, Nayeem Ahmad, PW-2,
Shamim Ahmad, inquest report Exhibit Ka.4 etc.
8.
According to the Sessions Court and the High Court, one of the
incriminating circumstances proved by the prosecution is that witness
Naseem Ahmad had seen the appellant and another fleeing from near the
place where the dead body of the deceased was found lying at about
4.30 am on February 8,1998. The learned counsel for the appellant
submitted that the only witness produced by the
prosecution to prove this circumstance is PW-3, Naseem Ahmad but the
said witness does not speak of any source of light and his silence of
not telling this fact to the Investigating Officer at the time of
holding of inquest is most unnatural and, therefore, the High Court
had erred in placing reliance on his evidence.
Elaborating this argument, it was submitted that the statement of
Naseem Ahmad under Section 161 was recorded on February 9, 1998 after
the arrest of the appellant and Mumtaz was effected and he does not
say that he had seen the accused carrying dead body or dropping any
object in front of the house of Haji Khursheed. It was pointed out
that he is a close relative of the complainant who asserted that
before the report of recovery of dead body was lodged by Shamim, he
had told Nayeem and Shamim that he had seen the appellant and Mumtaz
running away from near the place where the dead body was found lying
but no such fact was stated in the report made by witness Shamim
Ahmad and, therefore, his claim that he had seen the appellant
fleeing from near the place where the dead body was found lying
should have been disbelieved. What was stressed was that according to
the said witness, he and Jakir were going to jungle for answering the
call of nature and seen the
appellant
entering into the house of his sister but for the same reason, the
appellant could have been out of his sister's house and, therefore,
the appellant entering into the house of his sister could not have
been treated as an incriminating circumstance. What was claimed
was that neither this circumstance sought to be relied upon by the
prosecution stands proved beyond doubt by witness Naseem Ahmad nor
the same can be characterised as an incriminating
circumstance and, therefore, the same should be ignored while
appreciating the evidence against the appellant.
9. So far
as the circumstance, namely, that the appellant and Mumtaz were seen
fleeing away from near the place where the dead body of the deceased
was lying is concerned, this Court finds that the prosecution has
relied upon the testimony of PW2, Naseem Ahmad. After mentioning that
younger daughter of his brother Nayeem had disappeared on February 5,
1998, the witness has mentioned that in the morning of February 8,
1998 at about 4.30 a.m. he himself and one Jakir were going towards
jungle and when they reached near the house of Haji Khursheed, they
had seen the appellant and Mumtaz running from near the house of Haji
Khursheed and entering into the house of Kabir. It may be stated
that Kabir is brother-in-law of the appellant, i.e., husband of Ms.
Bilkis who is sister of the appellant. The witness has claimed in his
evidence that he was knowing Aftab, i.e., the appellant and Mumtaz
before the incident. According to this witness, when they came back
from the jungle at that time, they learnt that on the same day, dead
body of daughter of Nayeem Ahmad was found near the house of Haji
Khursheed.
This
witness was subjected to searching cross-examination by
the defence. In his cross examination, the witness stated that his
house was located after two houses
from the
house of Haji Khursheed. According to him Jakir who is his
brother-in-law had come to his house from village Mudia Kalan.
During this cross-examination, the witness also explained that Jakir
was real brother-in-law of Nayeem and, thus, deceased was niece of
Jakir. What was maintained by the said witness was that
both of them had proceeded to jungle at about 4.30 a.m. for answering
the call of nature and had seen the appellant and Mumtaz while they
were going to jungle. According to this witness, the
Investigating Officer had recorded his statement on the next day of
recovery of the dead body. It was further stated by this witness in
his cross-examination that the deceased was missing since February 5,
1998 whereas her dead body was found on February 8, 1998. The
witness has further mentioned that by the time they had come back
from the jungle, the dead body had already been found and one missing
report was written on February 6, 1998 which was scribed and lodged
by Shamim after the dead body was found. It was stated by him that he
was not present at the time of writing of the report by Shamim but
before the report was written, Shamim and Nayeem were told by him and
Jakir that they had seen the appellant and Mumtaz running away from
near the place where the dead body was lying. The witness further
mentioned in his cross-examination that the report was scribed after
arrival of sniffer dog called by the police. It was explained by
the witness that sniffer dog had been brought at 7.30 a.m. The
suggestion made by the defence that he had not seen anyone running
away from near the place where the dead body was lying and was
deposing falsely on account of relationship with Nayeem was
emphatically denied by him.
10. A fair
reading of the evidence tendered by this witness makes it evident
that though he is relative of Nayeem, he has stated the facts seen by
him in a simple manner and
without any
noticeable embellishments. If this witness wanted to implicate
the appellant falsely in the case because of his relationship with
the first informant, nothing
prevented
him from stating before the police and the court that he had seen the
appellant carrying the dead body of the deceased and throwing the
same near the house of Haji
Khursheed.
11.
However, this Court finds that he has not made any false
claim/exaggeration in his testimony at all and stated that he had
seen the appellant fleeing from near the place where the dead body
was lying. The reason as to why in the early morning he was out of
his house is stated by him, which this Court finds to be most
natural. It could not be
even
remotely suggested by the defence that a constructed latrine was
available in the house of witness Naseem Ahmad and, therefore, it was
not necessary for him to move out of his house in the early morning
of February 8, 1998 to go to jungle for answering call of nature.
What is relevant to notice is that at the time when this witness had
seen the appellant running away from near the place where the dead
body was found, he had not learnt that the dead body was already
found. Further, his house is located after two
houses from
the house of Haji Khursheed and the house of Ms. Bilkis, who is
sister of the appellant and with whom the appellant was residing at
the relevant point of time, is quite near to the house of Haji
Khursheed. Therefore, the claim made by the witness that he had seen
the appellant hurriedly entering the house of his sister sounds
probable. No major contradiction and/or omission with regard to his
earlier statement recorded before the police nor any other material
could be brought on record by the defence to impeach his credibility.
Merely because Shamim did not refer to the fact that he was told by
Naseem Ahmad that Naseem Ahmad had seen the appellant running away
from near the place where the dead body was lying in his report to
the police, cannot be a ground to disbelieve this witness. The
learned Judge of the Trial Court who had advantage of observing
demeanour of this witness has found the witness to be truthful. The
assertion made by the witness that the appellant and Mumtaz were
known to him could not be
disputed by
the defence at all. It was claimed by this witness in terms
before the Court that he had seen the appellant running away from
near the place where the dead body was lying. When it was stated by
the appellant that he had seen the appellant running away from near
the place where the dead body was lying, it was for the defence to
suggest that in the early morning of February 8, 1998, no source of
light was available and, therefore, he could not have seen the
appellant so running away. However, this
Court finds
that even remotely it was not suggested to the witness that there was
no source of light and, therefore, he could not have seen the
appellant running away from near the place where the dead body was
lying. The plea that this witness maintained silence at the time when
the inquest on the dead body of the deceased was held and did not
tell the Investigating Officer that he had seen the appellant running
away from near the place where the dead body was lying would indicate
that he had not seen the appellant running away, is merely stated to
be rejected. The occasion for this witness to tell the Investigating
Officer that he had seen the appellant running away from near the
place where the dead body was lying would arise only when the
Investigating Officer was to record his statement under Section 161.
The basic purpose of holding inquest on the dead body is to ascertain
prima facie the nature of death and to find out whether there are
injuries on the dead body or not. The inquest punchnama cannot be
treated as statement of the witness recorded under Section 161 of the
Code of Criminal Procedure wherein he is supposed to narrate the
facts seen by him. Therefore, it is not true to say that he had
maintained silence and had not told the Investigating Officer at the
time of holding of the inquest that he had seen the appellant running
away from near the place where the dead body was lying. The so
called silence on the part of this witness cannot be considered to be
unnatural at all nor the same makes this testimony doubtful in any
manner. It is true that the appellant who was staying in the house of
his sister cannot be said to have committed any unnatural conduct by
entering into the house of his sister. However, it is not the case of
witness Naseem Ahmad that he had seen the appellant calmly entering
into the house of his sister. What is mentioned by the witness is
that he had seen the appellant running away from near the place where
the dead body was found and hurriedly entering house of his sister.
The `running away' part attributed to the appellant could not be
explained by him. In his further statement, it could not be explained
by the appellant as to what made him running away from near the place
where the dead body was found and hurriedly entering into the house
of his sister. On reappraisal of the evidence of this witness, this
Court finds that neither the Trial Court nor the High Court committed
any error in placing reliance on the testimony of this witness for
coming to the conclusion that one of the incriminating circumstances,
namely, that the appellant was found fleeing from near the place
where the dead body
was found
lying was satisfactorily proved.
12.
Another circumstance sought to be relied upon by the prosecution is
that the appellant had made voluntary disclosure statement pursuant
to which blood stained clothes of the deceased were discovered.
The disclosure statement was made by the appellant in presence of
PW4, Rais Ahmad. To prove the recovery of clothes of the
deceased,
the prosecution has relied upon the testimony of two witnesses,
namely, PW4, Rais Ahmad and PW7, Praveen Kumar Tyagi, the
Investigating Officer. PW4, Rais Ahmad has stated that on February 8,
1998 Police had come to village Bajpur at about 3.30 p.m. and they
had brought with them the appellant and Mumtaz. According to this
witness, he and Lakhvinder Singh were standing at the place where the
appellant was brought by the police. It is mentioned by the witness
that police had called him and Lakhvinder Singh and asked them to
accompany them. What is stated by the witness is that the appellant
and Mumtaz led them to the house of Kabir and the appellant took out
one sleeveless frock, one underwear and one green coloured bed sheet
from the foodgrains room of the house of Kabir. The witness further
stated that the abovementioned articles were kept hidden under the
leaves and after taking out those articles, the appellant had told
that these were the clothes of Yasmeen which he had concealed. It
was further stated by the witness that seizure memo was prepared by
the Investigating Officer on the spot and his signature was obtained
thereon after it was read over to him. The witness identified his
signature on the memo (Exhibit Ka.3). In his cross-examination, the
witness stated that Shamim who is his elder brother was
brother-in-law of the complainant. According to this witness, the
appellant used to live in the house of his sister. What was
mentioned by the witness was that Shabnam, daughter of sister of the
appellant, was of the age group of Yasmeen and he was not remembering
correctly whether Kabir, i.e., brother-in-law of the appellant was
living with his family in the house from which the appellant had
taken out the clothes of the deceased. It was
mentioned by
the witness that the sniffer dog had first smelt the dead body and
then the said dog had entered into house of Kabir and picked up the
appellant. It was further stated by the witness that the dog did not
pick up Mumtaz and after the smelling by sniffer dog, the police had
arrested the appellant and Mumtaz in his presence. What is testified
by the witness is that many persons had gone up to the police station
and he had also gone to the police station where his signatures were
obtained on Exhibit Ka.3 at about 4.00 p.m. The suggestion made to
the witness by the defence that no clothes were recovered in his
presence and that he was deposing falsely was emphatically denied by
him.
13. The
testimony of Investigating Officer makes it more than clear that
after arrest, the appellant had made disclosure statement and
willingness to show the place where the clothes of the deceased were
concealed by him. This fact is also mentioned in Exhibit Ka.3 which
was prepared contemporaneously. According to the
Investigating Officer, he had made efforts to summon local witnesses
from Akari Pistor but none had agreed to be a witness and, therefore,
Rais Ahmad and Lakhvinder Singh were summoned to be panch witnesses
on way to the place to be pointed out by the appellant where he had
concealed the clothes of the deceased. According to this witness, the
appellant and Mumtaz led the police party and the appellant took out
clothes of the deceased, i.e., blood stained frock and underwear as
well as one bed sheet from Kuria meant for storing foodgrains. The
witness further stated that clothes of the deceased and bed sheets
were kept in the western corner of the room. The witness also
informed the Court that underwears of both the accused were seized
and they appeared to be stained with semen at some places. The
argument that witness Rais Ahmad has not stated about the disclosure
statement at all and, therefore, discovery of the clothes of the
deceased should be disbelieved cannot be accepted. As explained
by the Investigating Officer, the appellant and Mumtaz had made
disclosure statement when they were at the police station. The said
fact is mentioned in the document prepared contemporaneously. As
explained by the Investigating Officer, he had made efforts to summon
two independent witnesses to act as panchas but none
had shown willingness to do so and, therefore, he had requisitioned
services of Rais Ahmad and another on way to the house of sister of
the appellant from where the clothes of the deceased were recovered.
The contention that that part of the disclosure statement showing
that recovered frock and underwear were of the deceased and the bed
sheet was one over which rape was committed cannot be read in
evidence has no substance. In the leading case of Pulukuri Kottaya &
Ors. Vs. Emperor AIR 1947 PC 67 what would be admissible in a
disclosure statement has been explained by the Privy Council giving
illustration as under :
"The
statements to which exception is taken in this case are first a
statement by accused No.6 which he made to the police
sub-Inspector and which was reduced into writing, and is Exhibit
"P." It is in these terms :
`The
mediatornama written at 9 a.m. on 12.1.1945, in front of Maddineni
Verrayya's choultry and in the presence of the
undersigned mediators. Statement made by the accused Inala Sydayya
on being arrested.
About 14 days ago, I Kotayya and people of my
party lay in wait for Sivayya and others at about sunset time
at the corner of Pulipad tank. We, all beat Beddupati China Sivayya
and Subayya, to death. The remaining persons, Pullayya,
Kotayya and Narayana ran away. Dondapati Ramayya who was in our
party received blows on his hands. He had a spear in his hands. He
gave it to me then. I hid it and my stick in the rick of
Venkatanarasu in the village. I will show if you come.
We did all this at the instigation of Pulukuri Kotayya.'
(Signed) Potla China mattayya.
( " ) Kotta Krishnayya.
12th
January, 1945. (Sgd.) G. Bapaiah,
Sub-Inspector of Police.
The
whole of that statement except the passage "I hid it (a spear)
and my stick in the rick of Venkatanarasu in the village. I will
show if you come" is inadmissible. In the evidence of the
witness Potla China Mattayya proving the document the statement that
accused 6 said "I Mattayya and others went to the corner of the
tank-land. We killed
Sivayya and
Subayya" must be omitted.
A
confession of accused 3 was deposed to by the police Sub-Inspector,
who said that accused 3 said to him :
`I
stabbed Sivayya with a spear, I hid the spear in a yard in my
village. I will show you the place."
The first
sentence must be omitted. This was followed by a Mediatornama,
Ex.Q.I, which is unobjectionable except for a sentence in
the middle, `He said that it was with that spear that he had stabbed
Boddapati Sivayya,' which must be omitted."
Thus,
the part of the disclosure statement, namely, that he was ready to
show the place where he had concealed the clothes of the deceased is
clearly admissible under
Section 27
of the Evidence Act because the same relates distinctly to the
discovery of the clothes of the deceased from that very place.
The
contention that even if it is assumed for the sake of argument that
the clothes of the deceased were recovered from the house of the
sister of the appellant pursuant to the
voluntary
disclosure statement made by the appellant, the prosecution has
failed to prove that the clothes so recovered belonged to the
deceased and, therefore, the recovery of the clothes should not
be treated as an incriminating circumstances is devoid of
merits. First of all, what is relevant to notice is that in the
missing report, it was mentioned by Nayeem Ahmad that his daughter
aged five years, who was wearing frock and underwear, was missing
from near the house while playing.; Thus, the wearing of the frock
and underwear was mentioned by the father of the girl at the first
available opportunity. The statement by Nayeem, PW1, as well as
statement made by Shamim, PW2, that there were no clothes on the dead
body of the deceased has gone unchallenged. Naturally, therefore, it
was necessary for the Investigating Officer to find out as to where
the clothes put on by the deceased were concealed. What is relevant
to notice is that Ms. Bilkis who is sister of the appellant and who
is examined as DW1 mentioned in her testimony before the Court that
the police had taken into custody the clothes belonging to
her daughter Shabnam. However, the record of the case shows that
the frock and the underwear recovered from the house of Ms. Bilkis
pursuant to disclosure statement made by the appellant were blood
stained. It was never the case of Ms. Bilkis that the frock and
underwear recovered or seized by the police were blood stained and
belonged to her daughter Shabnam. Further, the clothes were recovered
pursuant to the voluntary disclosure statement made by the appellant
on February 9, 1998 whereas Ms. Bilkis made claim that the clothes,
which belonged to her daughter, were recovered and seized on
September 30, 2003 when she was examined by the appellant as one of
the defence witnesses. If the police had seized the clothes
belonging to her daughter, Ms. Bilkis would not have maintained tacit
silence for roughly about more than five years and would have made
grievance before higher police officers or court within reasonable
time. A bare reading of her testimony makes it more than clear that
she had come to depose before the Court to save the appellant who is
her real brother and stated wrong facts for the first time before the
Court. Her case that the police personnel had given 2 to 4 blows of
stick to her and threatened her that she and her husband would be
implicated in the case, does not inspire confidence of this Court.
Further, Exhibit Ka.3 which is seizure memo of the clothes of the
deceased recovered from the house of Ms. Bilkis pursuant to the
disclosure statement made by the appellant, mentions that the frock
recovered was made of terry-cotton fabric and its upper portion was
white whereas lower portion was brown coloured and there were prints
of flowers. The panchnama further indicates that it was sleeveless
and stained with blood marks. Similarly, underwear
discovered was made of cotton. It was white in colour with black
stripes having blood stains. Though Bilkis who was examined as DW1
claimed that the clothes recovered from her house belonged to her
daughter Shabanam, she could not give description of either frock or
the underwear seized during the course of her testimony before the
court. On overall view of the matter, this Court finds that it was
satisfactorily proved by the prosecution that the frock and
underwear, recovered from the house of DW1 Ms. Bilkis pursuant to the
voluntary disclosure statement made by the appellant, belonged to the
deceased.
14. Yet
another circumstance relied upon by the prosecution is
that the underwear of the appellant was stained with blood and semen.
The fact that underwear put on by the appellant was seized under a
panchnama is not disputed on behalf of the appellant at all. The High
Court ignored this circumstance stating that the appellant was
young and,
therefore, find of semen stains was natural. However, the High Court
ignored the material fact that in normal course, the underwear would
not have blood stains at all and, therefore, it was for the appellant
to offer explanation as to under what circumstances stains of blood
were found on his underwear, seized by the police during
the course
of investigation. The fact that the underwear of the appellant seized
by the police had human blood stains is sufficiently proved by the
contents of report of Chemical Analyst. The fact that the blood
stained underwear put on by the appellant was seized after four days
does not make any dent in the prosecution case on the ground that a
person would not move with such blood stained underwear for 3 - 4
days. One cannot lose sight of the fact that those stains were not
visible and even the Investigating Officer
had stated
that on examination the underwear put on by the appellant appeared to
be stained with semen at some places. If blood stains are found on
the shirt or pant of a
person then
normally such person would not move in the village with those clothes
on, because stains of blood would be visible and noticed by anyone.
However, it is almost
difficult
for anyone to notice stains of blood on underwear worn by a person.
Further, the sense of cleanliness of a rustic villager cannot be
ignored by the Court. While recording the statement of the
appellant under Section 313 of the Code, it was put to him by the
learned Judge that during the course of investigation his blood
stained underwear was seized by the Police and his explanation was
sought. In answer to the said question, it was never claimed by the
appellant that the underwear seized was not blood stained and that
another underwear was substituted in place of his underwear which was
seized. Thus, this Court finds that the High Court was not
justified at all in ignoring the circumstance sought to be relied
upon by the prosecution that blood stained underwear of the appellant
was recovered during the course of investigation.
15.
Another circumstance sought to be relied upon by the prosecution is
that the appellant made extra judicial confession before PW5, Anand
Swaroop. The evidence of this witness shows that he was one of
the panchas when inquest on the dead body of the deceased was held.
During the course of his testimony, the witness identified his
signature on
the inquest report which was produced by the prosecution at Exhibit
Ka.4. According to this witness, on February 23, 1998, he had been to
Kasipur Court in
connection
with some work. What is asserted by the witness is that the
appellant who is brother-in-law of Kabir had come to Court premises
and told him near the shops that he and Mumtaz had killed Yasmeen
after committing rape on her. The witness further asserted that the
reason for making extra judicial confession by the appellant was
that he was
ex-pradhan of the village and the appellant was under an impression
that the witness would be able to help him by approaching the police.
This witness in no uncertain terms asserted before the court
that he had told the Investigating Officer about the extra judicial
confession made by the appellant. In his cross-examination, the
witness stated that police had recorded his statement only once.
According to the witness, police had recorded his statement sometime
between 23 to 29th February, 1998 in the village. What is mentioned
by the witness in his cross-examination is that the appellant had
come after February 23, 1998 and, therefore, he had not thought it
necessary to tell the police about the extra judicial confession made
by the appellant. The suggestion made by the defence that the police
used to visit house of this witness daily or that the witness used to
go to the police station daily, is denied by the witness. The manner
in which this suggestion is made to the witness indicates that the
appellant was entertaining a notion that the witness would be in a
position to help him because the
witness that
the witness was going to the Police Station daily and policemen were
also visiting him. In the cross-examination also, the witness
maintained that the appellant
had met him
on February 23, 1998 in the court premises and neither the appellant
nor Mumtaz was in the lockup nor inside the court room and that the
appellant had made
the
confession near the shops. The witness explained to the court as to
why he had gone to the court and according to him he had gone to the
court premises to meet one Ashish
Sharma,
legal adviser of the bank for getting his brother's NOC prepared.
The witness further mentioned before the Court that the appellant and
Mumtaz had met him between
11.30 and 12
noon. The suggestion made by the defence that it was wrong to say
that the appellant had made any confessional statement was
emphatically denied by him. It may be mentioned that
this witness in the cross-examination had stated that the
appellant was not on talking or visiting terms with him before
February 23, 1998 and, therefore, it was argued that there was no
reason for the appellant to confide in this witness. However, what is
relevant to notice is that the witness was ex-pradhan of Bajpur
village. Ex-Pradhan certainly enjoys a status in a small village.
The case of the defence was that the appellant was knowing that the
witness was close to the police and
was going
to the Police Station daily. Under the
circumstances, thinking that the witness would be able to render some
help to him, the appellant had made extra
judicial
confession. The Court, on re-appreciation of evidence, finds
that it is not brought on the record of the case that this witness
was on inimical terms with the appellant. In fact, this witness
does not belong to the community of the appellant and belongs to
another community. There was no earthly reason for this witness to
come to the court and depose falsely about the extra judicial
confession made by the appellant. Though extra judicial
confession is considered to be a weak piece of evidence by the
courts, this Court finds that there is neither any rule of law nor of
prudence that the evidence furnishing extra judicial confession
cannot be relied upon unless
corroborated
by some other credible evidence. The evidence relating to extra
judicial confession can be acted upon if the evidence about extra
judicial confession comes from the mouth of a witness who appears to
be unbiased and in respect of whom even remotely nothing is brought
out which may tend to indicate that he may have a motive for
attributing an untruthful statement to the accused. In State
of U.P. vs. M.K. Anthony AIR 1985 SC 48, this Court, while explaining
the law relating to extra judicial confession, ruled that if the word
spoken by the witness are clear, unambiguous and unmistakable one
showing that the accused is the perpetrator of the crime and nothing
is
omitted by
the witness which may militate against it, then after subjecting the
evidence of the witness to a rigorous test on the touchstone of
credibility, the extra judicial
confession
can be accepted and can be the basis of a conviction. According to
this Court, in such a situation, to go in search of corroboration
itself tends to cause a shadow of doubt over the evidence and if the
evidence of extra judicial confession is reliable, trustworthy and
beyond reproaching, the same can be relied upon and a conviction can
be founded thereon. Here, in this case, it is proved by the
prosecution that PW5, Anand Swaroop was not on inimical terms with
the appellant at all. After subjecting his evidence to a rigorous
test on the touchstone of credibility, this Court finds that extra
judicial confession referred to by the witness is reliable and is
rightly accepted by the Trial Court and the High Court. The
contention that when the appellant was being brought to the court, he
was in custody and, therefore, the extra judicial confession referred
to by PW5 would be hit by the provisions of Section 26 of the
Evidence Act and could not have been received in evidence, cannot be
accepted. As observed earlier, the record shows that the appellant
and another were produced before the Court for extension of judicial
remand. The appellant could not probablise his defence that he was in
custody of police officer. He could not name the police officer who
had brought him with Mumtaz to the Court premises for extension of
judicial remand nor it is his case that to the hearing of the police
officer who brought him to the court premises, he had made
confessional statement before PW5. On the facts and in the
circumstances of the case, This Court is of the opinion that it is
not probablised by the defence that the appellant was in custody of
police officer while he had made extra judicial confession before
PW5. The evidence relating to extra judicial confession inspires
confidence of this Court. On this point, there is concurrent finding
by the courts below and no case is made out by the appellant to
interfere with the said finding in the present appeal.
16. The
net result of the above discussion is that the prosecution has proved
satisfactorily and beyond shadow of doubt following facts:
(1)
The deceased went missing in the evening of February 5, 1998 when
she was playing near her house.
(2)
Her naked dead body was found at about 6 a.m. on February 8, 1998
lying on public way in front of house of Haji Khursheed.
(3)
She was subjected to rape and died a homicidal death.
(4)
The appellant was seen fleeing away from near the place where the
dead body of the deceased was lying at about 4.30 a.m. on February
8, 1998.
(5)
Blood stained frock and blood stained underwear of the deceased
concealed in the house of sister of the appellant, were
recovered pursuant to voluntary disclosure statement made by
the appellant while in police custody.
(6)
Underwear of the appellant seized during the course of
investigation was found to be stained with blood and semen.
(7)
The appellant made extra judicial confession before PW5, Anand
Swaroop.
17. The
cumulative effect of the abovementioned facts taken together is
conclusive in establishing the guilt of the appellant. The
chain of circumstantial evidence is complete and does not leave any
reasonable ground for conclusion consistent with the innocence of the
appellant. The chain of circumstances is such as to show that within
all human probability the rape and murder of the deceased were
committed by the appellant and none else and he had also caused
disappearance of evidence of those offences. This
Court further notices that this Court in Vasa
Chandrasekhar Rao vs. Ponna Satyanarayana & Anr. [(2000) 6 SCC
286] and Geetha vs. State of Karnataka [(2000) 10 SCC 72] while
explaining the law relating to circumstantial evidence has ruled
that where circumstances proved are put to the accused through his
examination under Section 313 of the Code and the accused merely
denies the same, then such denial would be an additional link in the
chain of circumstances to bring home the charge against the accused.
As indicated earlier, it is proved by cogent and
reliable evidence that the appellant had committed rape on the
deceased and thereafter murdered her. Here in this case, the
incriminating circumstances proved were put to the appellant while
recording his statement under Section 313 of the Code of Criminal
Procedure. In his further statement, recorded under Section 313,
the appellant has merely denied the same.
Therefore,
such denial on the part of the appellant and failure to explain the
circumstances proved will have to be treated as an additional link in
the chain of circumstances to bring home the charge against the
appellant. The circumstances proved establish the guilt of the
appellant beyond reasonable doubt.
18. Thus,
this Court does not find any substance in the appeal and the same is
liable to be dismissed. Accordingly, the appeal fails and is
dismissed.
[J.M. Panchal]
.................................J.
[T.S. Thakur]
................................J.
New
Delhi;
January
12, 2010.
KILLER
MOTHER
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 212 OF 2010
(Arising
out of S.L.P.(Crl.) No.5813 of 2007)
Satni Bai
.............. Appellant
Versus
State of Madhya Pradesh
(Now Chhattisgarh) ..............Respondent
JUDGMENT
H.L. Dattu, J.
"A
mother is the truest friend we have, when trials
heavy
and sudden, fall upon us; when adversity takes
the
place of prosperity; when friends who rejoice with
us in
our sunshine desert us; when trouble thickens
around
us, still she cling to us, and endeavor by her
kind
precepts and counsels to dissipate the clouds of
darkness,
and cause peace to return to our hearts"
- Washington Irving
Leave
granted.
2) It is
in this backdrop, we seek to introduce the facts of this
case : A wicked mother is facing life sentence having been
convicted under Section 302 of the Indian Penal Code for killing her
own son with an axe by the Court of First Additional Judge,
Ambikapur in Case no. 366 of 1996. On appeal, the conviction is
upheld by the Division Bench of the Chhattisgarh High Court.
3) The
appellant, Satni Bai is the mother of the deceased. She belongs to
a tribal community. She has filed this appeal from prison, where she
is undergoing her sentence of life imprisonment. She is represented
by amicus curiae in this appeal.
4) The case of
the prosecution is that, on 18.8.1996, Heera PW-1 and his elder
brother Naihar Sai had gone to the forest in the morning to collect
wood and at about 1.00 P.M., they returned to the house and when
they were sitting inside the house, they heard the cries of his
daughter, Sumitra PW-4 and Anita, the daughter of his younger
brother. On hearing the cries, they came out of the house and went
towards the side from where the sound of cries were heard and saw
Kannilal (deceased) lying in a pool of blood. Heera lodged the
report P-1 in the Police Station, Sitapur. A.K. Tiwari PW-7 was
officiating in the post of Station House Officer, Sitapur. He had
recorded the statements of Heera PW-1 Balobai PW-2 and Sumitra PW-4.
Heera PW-1 had stated that the appellant/accused was standing near
the dead body of Kannilal with a bloodstained axe in her hand.
As the appellant was attempting to run away from the scene of crime,
he instructed his wife Balobai PW-2 to stop her and snatch the
bloodstained axe from her. He had also stated, that, there were
bloodstains on the clothes of the appellant as well. Balobai
PW-2 in her statement before the police had stated, on the date of
the incident they were sitting in the house and on hearing the cries
of her daughter Sumitra PW-4, she came out of the house and saw
appellant's son was lying dead and she saw the appellant standing
near the dead body with the wooden part of the axe in her hand and
the metal part of the axe on the floor. She had also stated, that,
when the appellant started running away from the place, on
instructions from her husband, she caught hold of appellant and
locked her inside the house.
5 ) After recording the
report P-1, the Station House Officer, Sitapur, left for the scene
of occurrence and after giving notice to the Panchas, he had
prepared Panchanama of the dead body of Kannilal. He had taken into
his possession the blood stained axe on production by Heera PW-1 and
also blood stained saree of the accused. He had also taken into
possession the blood stained soil and plain soil from the place of
occurrence. The investigating officer had also prepared the site
plan. Thereafter, the dead body of deceased Kannilal was sent to the
hospital situated at Sitapur for post mortem examination. The post
mortem was carried out by Dr. K.K Datta PW-8, who in his detailed
report had stated that the axe wound on the left side of the head of
the deceased was sufficient to cause the death. The blood stained
articles were sent for examination to the Forensic Science Laboratory
and, according to the report, blood was found on the saree of the
accused and the weapon of offence - axe. After completion of the
investigation, a charge sheet was filed against the appellant in the
court of Judicial Magistrate, First Class, Ambikapur, who in turn
committed the case to the Sessions Judge for trial.
6) The
prosecution in order to establish the charge against the
appellant/accused, examined eight witnesses including Heera PW-1,
his wife Balobai PW-2 and their daughter Sumitra PW-4, but were
declared hostile and cross examined by State counsel. The accused
when questioned under Section 313 of the Criminal Procedure Code,
denied all the incriminating circumstances brought against her and
reiterated about her being innocent.
7) The
trial court raised the following questions for determination:
1)
Whether the prosecution was successful in establishing that the death
was homicidal in nature ?
2)
Whether the prosecution was successful in establishing that the
accused with the intention of causing death, caused the death of
Kannilal?
8) To answer the
first question in the affirmative, the trial court has placed
reliance on the post mortem report of the doctor. To answer the
second question, the trial court has taken into consideration the
circumstantial evidence available on record, since the sole eye
witness Sumitra PW-4 has turned hostile. The trial court had also
taken other factors into consideration like the recovery of
bloodstained axe and saree of the appellant, for which there was no
proper explanation on the part of the appellant. Based on these
materials on record, the trial court after holding the appellant
guilty for the commission of offence under Section 302 of the
Indian Penal Code for committing the murder of her son Kannilal has
sentenced her to undergo imprisonment for life.
9) Since
the appeal filed against the judgment and order of the trial court
is dismissed by the High Court, the accused is in appeal before us.
10) We have heard
amicus curiae for the appellant and the learned counsel for the
State. The learned amicus-curiae submitted that the evidence on
record does not establish the case of homicide and that at any rate
the chain of circumstances is not so complete as to lead to the
hypothesis of guilt of the accused.
11) It has been
consistently laid down by this Court, that, when a case rests only
on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of
any other person. The circumstances from which an inference as to
the guilt of the accused is drawn, have to be proved beyond
reasonable doubt and have to be shown to be closely connected with
the principal fact sought to be inferred from those circumstances.
[See State of U.P. vs. Satish, (2005) 3 SCC 114].
12) In Joseph vs.
State of Kerala, [(2000) 5 SCC 197], the court has explained under
what circumstances conviction can be based purely on circumstantial
evidence. It is observed, that, "it is often said that though
witnesses may lie, circumstances will not, but at the same time it
must cautiously be scrutinized to see that the incriminating
circumstances are such as to lead only to a hypothesis of guilt and
reasonably exclude every possibility of innocence of the accused.
There can also be no hard and fast rule as to the appreciation of
evidence in a case and being always an exercise pertaining to
arriving at a finding of fact the same has to be in the manner
necessitated or warranted by the peculiar facts and circumstances of
each case. The whole effort and endeavor in the case should be to
find out whether the crime was committed by the accused and the
circumstances proved form themselves into a complete chain
unerringly pointing to the guilt of the accused."
13) This court in the
case of Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC
79), has observed that when a case rests on circumstantial evidence,
the following tests must be satisfied:
(i)
The circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established;
(ii)
those circumstances should be of a definite tendency unerringly
pointing towards the guilt of the accused;
(iii)the
circumstances, taken cumulatively, should form a chain so complete
that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else;
and
(iv)the
circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than
that of the guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be in
consistent with this innocence.
14) In C. Chenga
Reddy and others v. State of Andhra Pradesh, (AIR 1996 SC 3390),
this Court has held that:-
"In a
case based on circumstantial evidence, the settled law is that the
circumstances from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should
be no gap left in the chain of evidence. Further, the proved
circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence."
15) In State of U.P.
vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out
that great care must be taken in evaluating circumstantial evidence
and if the evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be accepted. It
was also pointed out that the circumstances relied upon
must be found to have been
fully established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of the
guilt.
16) The principles
that would emerge from these decisions is that conviction can be
based solely on circumstantial evidence, but it should be tested on
the touchstone of law relating to circumstantial evidence laid down
by this Court.
17) Keeping in
view the settled legal principle, we have re-appreciated the
evidence on record. It is true that this case is not of direct
evidence of committing murder of deceased Kannilal by the
accused/appellant, who is none other than the mother of the deceased,
but is based on circumstantial evidence and the circumstances brought
on record by the prosecution are of two categories: That the accused
was seen at the place of occurrence holding blood stained axe in her
hand near the dead body of the deceased Kannilal and she also tried
to run away from the place of occurrence; that the axe which was
snatched from the accused by Balobai and the saree of the accused
were found stained with the blood. To prove the first circumstance,
the prosecution has examined Heera PW-1, Balobai PW-2 and Sumitra
PW-4. PW-1 has stated that on the fateful day when he returned from
the forest at about 1.00 P.M., he heard the cries of Sumitra and came
out of the house, went towards the court yard of Naihar Sai and saw
the dead body of Kannilal in the court yard. Accused was standing
there holding axe in her hand and he lodged the report, P-1. This
witness has been declared hostile by the prosecution. The prosecution
was allowed to cross examine this witness, on which he has stated
that the portion `A' to `A' of the report P-3 shows that the girls
were crying that the aunt has murdered Kannilal. The accused was
running away with the axe and the axe was snatched from her and she
was tied, all this was informed by him while lodging the report, P-
3. He had also stated in the report P-3, that the axe was smeared
with blood and hair and accused's garments were also stained with
blood. In the cross-examination, he has stated that the place of
occurrence was the house of Naihar Sai who is his brother. His wife
Balobai was scolding Satni (accused) and on their remonstrations,
Satni (accused) tried to run away, but, before that the accused was
sitting by the side of her son Kannilal (deceased). The above
evidence of Heera PW-1 is
corroborated by the
evidence of Balobai PW-2 and Sumitra PW-4. In the cross-examination
of these witnesses, the defence has not been able to elicit any
circumstance which shows that the accused was not present when Heera
PW-1 and Balobai PW-2 went to the scene of occurrence and, therefore,
the presence of the accused at the place of occurrence near the dead
body of her son Kannilal holding blood stained axe in her hand is
established. It is also established from the evidence of these
witnesses that the accused tried to run away from the place of
occurrence and she was caught by Balobai PW-2. These witnesses are
closely related to the appellant. From their deposition, a clear and
consistent picture emerges that when they gathered at the courtyard
being alarmed by the cries of Sumitra (daughter of Heera) and Anita
(daughter of the appellant), they saw that the appellant was standing
with a bloodstained axe near the body of her son, Kannilal. She also
tried to run away, and Balobai restrained her and seized the axe
from her possession. The axe as well as the saree of the appellant
was blood stained according to the witnesses. There are no inherent
contradictions in the testimony of these witnesses. The defence has
been unable to dispel the chain of events which emerge from the
testimony of these witnesses.
18) Next comes the
second circumstance. The blood stained axe and the blood stained
saree of the accused was taken into possession by the investigating
officer as has been recorded in the seizure memo. They were sent to
Forensic Science Laboratory for examination and the report received
mentions that both the articles were found blood stained.
Therefore, it is proved beyond reasonable doubt that the accused
was standing with the blood stained axe near the dead body of the
deceased Kannilal.
19) The third
circumstance is the post mortem report prepared by Dr. K.K Datta,
which revealed the following wounds on the body of the deceased:
i. One
incised wound measuring 12 X 1.5 cm till mandible bone deep in the
cheek.
ii.
Incised wound measuring 10 X 1.5 cm on left side behind the head,
from which the brain was visible.
iii.
Incised wound 6 X 1 cm deep till bone, on left side of the neck,
deep till bone.
iv.
Incised wound 7.5 X 1.5 cm deep till vertebrae.
According to
Dr. Datta, wound No.2 was life endangering and there is no doubt
this was caused by the axe which was recovered from the hands of the
accused. We find that the post mortem report coupled with
the testimony of the witnesses presents a very clear and cogent
chain of the events which occurred on the fateful day unerringly
points towards the guilt of the appellant. The picture emerging has
also not been refuted satisfactorily by the defence.
20) The learned
Amicus Curiae appearing for the appellant submits that the appellant
is the mother of the deceased child and it is not possible for a
mother to possibly kill her own child. She further submits that
because of the illiteracy and ignorance of the appellant, she has
been falsely implicated for the death of her child.
21) Motherhood is
one of the most precious gifts endowed upon mankind and there is no
relationship more pristine and pure than that of a mother and her
child. No mother in normal circumstances can tolerate even a scratch
on the body of her child. Basic instinct of a mother is well
explained by a well known author Washington Irving
in one of his books,
wherein he has said, that, "a father may turn his back on his
child; brothers and sisters may become inveterate enemies; husbands
may desert their wives, and wives their husbands. But a mother's love
endures through all; in good repute; in bad repute, in the face of
the world's condemnation, a mother still loves on, and still hopes
that her child may turn from his evil ways, and repent; still she
remembers the infant smiles that once filled her bosom with rupture,
the merry laugh, the joyful shout of his childhood, the opening
promise of his youth; and she can never be brought to think him an
unworthy." In the present case, the appellant was found
standing near the dead body of her son with a bloodstained axe in her
hand. The normal reaction for any mother would have been to go
hysterical and clutch the body of her son. But, what is the reaction
of a mother in the present case, as stated by PW-1 and PW-2 in their
evidence, who came near
the scene of occurrence on hearing the cries of Anita and Sumitra,
that the accused tried to flee away from the scene of the crime
before being restrained. This kind of reaction and lack of remorse
would not have been forthcoming had she been innocent. This unusual
reaction to the death of her son who was aged 4 at the time of
his death, in no uncertain terms point towards her involvement in
the crime. In our view, this is an unusual case and therefore the
plea that a mother is not capable of killing her own son, in the
absence of any evidence to the contrary cannot be accepted. Apart
from this, at the time of questioning under Section 313 Cr.P.C., the
appellant instead of making at least an attempt to explain or clarify
the incriminating circumstances inculpating her and connecting her
with the crime by her total denial of everything when those
circumstances were brought to her notice by the Sessions Court, she
not only lost the opportunity but stood self condemned.
22) There is
also no question of falsely implicating the appellant. The witnesses
are her close relatives. Heera PW-1 being the brother-in-law of the
appellant and Balobai PW-2 being the sister-in-law of the appellant,
had no enmity nor animosity against the appellant. With regard to
the issue of Sumitra PW-4, being declared a hostile witness by the
prosecution and the contradictions in her testimony, it needs to be
kept in mind that the witness is a 16 year old girl, with an
impressionable mind. It is very likely that she was shocked beyond
belief at the site of the dead body and it is not possible to
comprehend how she would have reacted. Different people react
differently to crisis situations, so it is very much possible that
with the passage of time between the occurrence of the crime and
recording of her testimony, her memory of the incident would have
blurred. That by itself is not enough to set aside the conclusion
reached at by the courts below.
23) For all
the reasons stated supra, we have no hesitation to agree with the
findings of the Division Bench of the High Court holding the
appellant guilty of the offence under Section 302 I.P.C.
Accordingly, the appeal fails and it is dismissed.
.................................J.
[ P. SATHASIVAM ]
.................................J.
[ H.L. DATTU ]
New Delhi,
January 29, 2010.