Govt. of Nct of Delhi Vs. Sunil & ANR  INSC 593
(29 November 2000)
R.P.Sethi THOMAS, J.
sex maniacs libidinously ravaged a tiny female tot like wild beasts and
finished her off.
after investigation found that the two respondents herein are those two fiends.
A Sessions Court upheld the said police version as correct. He sentenced one of
them to death penalty and the other to life imprisonment, but a Division Bench
of the High Court of Delhi declined to believe the police version as true and
consequently the two respondents were acquitted. This appeal by the State is by
little girl was Anuradha and she was aged only four. She was fondly taken away
from her mothers house on the forenoon of 5.9.1992. Her dead body was taken up
by her mother on the same night from the house of first accused Sunil. When the
doctor conducted autopsy on the dead body he described the dimensions of the
imprints left in the infantile body reflecting a horrible sexual molestation
inflicted on the child. Next day the police arrested the two accused (A1-Sunil
and A2-Ramesh) and after completing the investigation charge-sheeted both of
them for offences under Sections 364, 376, 377 and 302 read with Section 34 of
the Indian Penal Code. After the trial the sessions court convicted both of
them under all the aforesaid counts and sentenced A2 Ramesh to death and A1
Sunil to imprisonment for life on the charge of murder and awarded lesser
sentences for the remaining counts.
of the prosecution case are the following:
mother Sharda (PW10) was known to A1 Sunil and his mother (Giano Devi). Sharda
had stayed in the house of Giano Devi for a few days and their acquaintance
became closer. Sharda was working in a tube-light manufacturing factory during
those days. As she needed a place to live in Giano Devi arranged a small
hutment (Jhuggi) with the help of another lady (PW8 Tara) who was residing
close-by. On the occurrence day Sharda went to the factory for work leaving her
child Anuradha in the custody of PW8-Tara. At about 11 A.M. Sunil visited them and expressed to PW8-Tara that he would
take the child and her clothes as well as some domestic utensils to PW10.
Though PW8 suggested that this should be done only if Sharda permits, A1-Sunil
took the child and her clothes and the utensils from his house during a short
time when PW8-Tara had gone out to fetch milk. When she came home in the night
she learnt from PW8-Tara that her child was taken away by Sunil. So she went to
Sunils house. It was about 9.00 P.M. then.
To her dismay she found her little child lying completely nude next to
A2-Ramesh, on the second floor of the house, who was then deep in his sleep.
Then Sunil, who was found in an inebriated mood, hurled a remark that I have
dispatched Anuradha to heaven. She felt concerned as to what would have
happened to the child. It was then she realised that her child was breathless.
PW10- Sharda then took the child to the hospital, but the doctor who examined
her pronounced her dead.
Dr. Basant Lal conducted the autopsy on the dead body of the child at 12.00 noon on 7.9.1992. In his opinion the child would have
died about 36 to 48 hours prior to the autopsy. He gave full details in his
post-mortem report about the features noticed by him on the dead body.
corpse was full of abrasions and contusions. The prominent among them were
counted by the doctor as 25 in number and he described the situs and dimensions
of all of them. Among them, oval fashioned multiple abrasions on the left cheek
appeared to him as marks of biting. Both the upper and lower lips of the child
were bruised violently.
of violent handling of both the thighs, lower abdomen and pubic region are also
described by the doctor. The vaginal orifice is described by the doctor in his
report as follows: Labia majora and minora swollen and reddish blue in colour.
Vaginal orifice dilated and blood is coming out of it. Right labia minora
showing tears 1.6 x 0.1 cm. and on left side labia minora showing tear in an area
of 1.5 x
in vertical plane. Labia majora showing contusion on both sides in an area of 3
x 2 cm each.
hymen the doctor described thus: Hymen showing tear at 5 and 6 Oclock position
which was going upto the vaginal wall and triangular in shape in an area of
1 x 1 cm. There were tears on the sides and back of urethra opening upto hymen
in an area of 1.4 x 1.2 cm. in triangular fashion.
the anus the doctor described as follows:
and blood was coming out of it. The diameter was 1.5 cm. The area around the
orifice was showing swelling with reddish contusion in an area of 2 cm.
Lal (PW-1) further noted that the vaginal orifice was so badly mutilated that
one middle finger could be easily admitted into it. Even the tongue was not
spared in that violence as the doctor found its position like this:
tongue was showing abrasion 0.5 x 0.5 cm. on its front right outer aspect with
contusion around. Reddish bluish in colour Bite mark.
examination of the head of the body PW1 noticed thick layered bluish-reddish
effusion of blood on the right temporal parietal region. Though there was no
fracture of the skull the duramater on the left side looked bluish, and there
was thick subdural haemotoma in an area of 20x10x0.8 cm. and one fist full
clotted blood, and patchy subarachnoid haemorrage all over the brain which were
also noticed by the doctor.
the woeful and eerie features described by the doctor no court could possibly
escape from the conclusion that the little child was violently molested,
ravished, raped and sodomised besides penile penetration having been made into
her mouth. The remnants of extensive mangling of the tender body of the child
would reflect the possibility of more than one rapist subjecting the child to
such beasty ravishment.
the Sessions Court acted on the above medical report as reliable it is
unfortunate that the Division Bench of the High Court expressed misgivings
about it. The only basis for entertaining doubt about the correctness of the
findings recorded by PW1 Dr. Basant Lal was that when the deceased was first
examined by one Dr. Gajrat Singh at 11.40 P.M. on 5.9.1992 he noted only
multiple bruises all over the body in Ext.PW11/1 MLC(Medico Legal Certificate).
the said doctor who pronounced the girl dead. He made the above entry in the
MLC. It must be noted that Dr.
Singh was not examined as a witness in the court.
that doctor was not disposed to conduct a detailed examination on the dead body
either because he was pretty sure that the body would be subjected to a
detailed autopsy or because the doctor himself was in a great hurry.
be the reason, no court could afford to ignore the report of the doctor who
conducted the autopsy with meticulous precision about all the features noticed,
merely on the strength of what another doctor had scribbled in the MLC at the
Judges of the High Court should have noticed that the evidence of PW1 Dr. Basant
Lal was not even controverted by the defence as no question was put to him in
cross-examination by the defence counsel. His testimony ought to have been
given due probative value particularly when nothing was shown to doubt the
evidence of that medical practitioner. Learned counsel for the respondents was
not able to pick out even a single answer from his evidence which could at
least throw a modicum of doubt about the correctness of his evidence. Hence we
have to proceed on the premise that whatever PW1 Dr. Basant Lal - found on the
dead body were the actual position noticed by him during autopsy. The Sessions
Judge has rightly accepted that evidence and no exception can be taken thereto.
Thus, it is beyond doubt that the little girl was raped and sodomised and that
death was due to the injuries sustained in that exercise.
the above premise is so certain the task of the court is narrowed down to the
limited area i.e., were the two respondents the rapists or is there any
reasonable scope to think that somebody else would have done those acts.
trial court came to the conclusion that the culprits are the two respondents
and none else. The Sessions Judge found that prosecution has established the
following circumstances: (1) Sunil (1st accused) had taken the child from the
house of PW8 Tara by about noon on
5.9.1992. (2) The child was recovered from the house of A1 Sunil and she was
then found breathless. (3) That child was lying naked by the side of A2 Ramesh
who was in deep sleep when the mother of the child lifted her up. (4) A1 Sunil,
who was then in inebriated condition, blurted out that Anuradha was sent to
heaven. (5) The blood-stained nicker of Anuradha was later recovered from the
house of A2 Ramesh on the basis of a statement given to the police.
trial court concluded on the strength of those circumstances that both the
respondents are liable to be convicted for murder, rape and unnatural offence,
while A1 Sunil is additionally liable for kidnapping the child for murder.
Accordingly the trial court convicted both the respondents and sentenced them
the first circumstance that it was A1 Sunil who took the child from the care of
PW8 Tara, prosecution has examined PW8 Tara and her neighbour PW12 - Dariba
besides the evidence of PW10 Sharda. PW8 Tara said that she knew both the
accused since they used to stay in the house of Sharda for some days earlier.
According to PW8 Tara, the child and her mother had stayed in her Jhuggi for a
few days and on the date of occurrence A1 Sunil visited the Jhuggi at 11 A.M.
and requested her to let the child Anuradha be taken with him along with some
utensils and clothes. The suggestion was that he had to take the child to the
factory where Sharda was working. It appears that PW8 Tara was reluctant to
allow him to take the child presumably because she did not know whether Sharda
herself wanted the child then. But during the short interval when she went out
of the house for purchasing milk A1 Sunil had taken away the child. As she did
not know where Sharda was working and as the child was taken away by A1 Sunil
who was familiar to Sharda no immediate step was taken by PW8 Tara and she
chose to wait till Sharda returned.
above evidence of PW8 Tara is to be appreciated in the light of what PW10 Sharda
herself had said. PW10 deposed that she was quite familiar with A1 Sunil and
she and the child had stayed at Sunils house for a few days sometime back. PW10
has stated that on the date of occurrence when she returned to Taras house she was told that Sunil had taken the child
away by saying that PW10 would take the child back in the evening. She further
deposed that she went to A1s house at 9.30 P.M. along with PW8 Tara and PW12 Dariba and collected the child from that
house and the child was then lying next to A2 Ramesh who too was then sleeping.
As the child was found breathless and in view of the comment blurted out by A1
Sunil, she rushed the child to the hospital.
Division Bench of the High Court expressed difficulty to believe the said
version of the prosecution i.e. A1 Sunil had taken away the child from the Jhuggi
of PW8 Tara. The reasons of the High Court for it are: (1) There was no need
for A1 Sunil to take the clothes and utensils even if he wanted to take the
child to its mother Sharda. (2) There is nothing to indicate that PW10 Sharda
made any enquiry about the clothes and utensils. (3) PW8 Tara could not explain
as to what she understood when A1 Sunil wanted to take away the child with him.
(4) Nobody from the neighbourhood of Tara
was examined to corroborate her evidence. (5) The testimony of PW8 Tara was
contradictory with the evidence of PW10 Sharda.
perused the evidence of PW8-Tara, PW10-Sharda and their neighbour PW12-Dariba.
True, there are discrepancies between the evidence of those three witnesses,
but we have not come across any discrepancy worth quoting for consideration as
they are immaterial. Such discrepancies are common features in the testimony of
any two witnesses.
too much of a strain for the judicial mind to ferret out some minor
discrepancies as between the testimony of those three witnesses. Even the other
reasons advanced by the Division Bench of the High Court are ex facie puerile
and evidence given on oath by the bereaved mother PW10-Sharda and her other
associate PW8-Tara, cannot be jettisoned on such insignificant reasons. In our
view the High Court ought not to have sidelined the evidence of those three
circumstance relating to the recovery of the bloodstained nicker is a
formidable one. But the Division Bench did not attach any importance to it
solely on the ground that the seizure memo was not attested by any independent
witness. Here the circumstance is that when A2- Ramesh was interrogated by
PW17-Investigating Officer he said: Her underwear is in my house and I can point
out the place where it is. Pursuant to the said information the police
recovered the nicker from the house of A2-Ramesh. It was identified by
PW10-Sharda as her childs nicker. When the nicker was subjected to chemical
test it was revealed that the under-cloth of the child was stained with blood
of O group (same is the blood group of Anuradha). The said statement of
A2-Ramesh would fall within the purview of Section 27 of the Evidence Act as
the fact discovered was that the nicker of the deceased was in the house of A2-
Ramesh. The presumption which can be drawn therefrom is that it was A2 who
removed the nicker and kept it in his house. A2 had no explanation to be
offered about that circumstance.
of the nicker is evidenced by the seizure memo Ext.PW-10/G. It was signed by
PW10-Sharda besides its author PW17-Investigating Officer. The Division Bench
of the High Court declined to place any weight on the said circumstance purely
on the ground that no other independent witness had signed the memo but it was
signed only by highly interested persons. The observation of the Division Bench
in that regard is extracted below:
need hardly be said that in order to lend assurance that the investigation has
been proceeding in fair and honest manner, it would be necessary for the
Investigating Officer to take independent witnesses to the discovery under
Section 27 of the Indian Evidence Act; and without taking independent witnesses
and taking highly interested persons and the police officers as the witnesses to
the discovery would render the discovery, at least, not free from doubt.
this context we may point out that there is no requirement either under Section
27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure,
to obtain signature of independent witnesses on the record in which statement
of an accused is written. The legal obligation to call independent and
respectable inhabitants of the locality to attend and witness the exercise made
by the police is cast on the police officer when searches are made under
Chapter VII of the Code. Section 100(5) of the Code requires that such search
shall be made in their presence and a list of all things seized in the course
of such search and of the places in which they are respectively found, shall be
prepared by such officer or other person and signed by such witnesses. It must
be remembered that search is made to find out a thing or document which the
searching officer has no prior idea where the thing or document is kept. He
prowls for it either on reasonable suspicion or on some guess work that it
could possibly be ferreted out in such prowling. It is a stark reality that
during searches the team which conducts search would have to meddle with lots
of other articles and documents also and in such process many such articles or
documents are likely to be displaced or even strewn helter-skelter. The
legislative idea in insisting on such searches to be made in the presence of
two independent inhabitants of the locality is to ensure the safety of all such
articles meddled with and to protect the rights of the persons entitled
thereto. But recovery of an object pursuant to the information supplied by an
accused in custody is different from the searching endeavour envisaged in
Chapter VII of the Code. This Court has indicated the difference between the
two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr.
Sardar Ali & ors. (1983 SC 1225). Following observations of Chinnappa
Reddy, J. can be used to support the said legal proposition: Section 100 of the
Criminal Procedure Code to which reference was made by the counsel deals with
searches and not seizures. In the very nature of things when property is seized
and not recovered during a search, it is not possible to comply with the
provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure
Code. In the case of a seizure [under the Motor Vehicles Act], there is no
provision for preparing a list of the things seized in the course of the
seizure for the obvious reason that all those things are seized not separately
but as part of the vehicle itself.
it is a fallacious impression that when recovery is effected pursuant to any
statement made by the accused the document prepared by the Investigating
Officer contemporaneous with such recovery must necessarily be attested by
independent witnesses. Of course, if any such statement leads to recovery of
any article it is open to the Investigating Officer to take the signature of
any person present at that time, on the document prepared for such recovery.
But if no witness was present or if no person had agreed to affix his signature
on the document, it is difficult to lay down, as a proposition of law, that the
document so prepared by the police officer must be treated as tainted and the
recovery evidence unreliable. The court has to consider the evidence of the
Investigating Officer who deposed to the fact of recovery based on the
statement elicited from the accused on its own worth.
feel that it is an archaic notion that actions of the police officer should be
approached with initial distrust. We are aware that such a notion was lavishly
entertained during British period and policemen also knew about it. Its hang
over persisted during post-independent years but it is time now to start
placing at least initial trust on the actions and the documents made by the
rate, the court cannot start with the presumption that the police records are
untrustworthy. As a proposition of law the presumption should be the other way
around. That official acts of the police have been regularly performed is a
wise principle of presumption and recognised even by the legislature. Hence
when a police officer gives evidence in court that a certain article was
recovered by him on the strength of the statement made by the accused it is
open to the court to believe the version to be correct if it is not otherwise
shown to be unreliable. It is for the accused, through cross-examination of
witnesses or through any other materials, to show that the evidence of the
police officer is either unreliable or at least unsafe to be acted upon in a
particular case. If the court has any good reason to suspect the truthfulness
of such records of the police the court could certainly take into account the
fact that no other independent person was present at the time of recovery. But
it is not a legally approvable procedure to presume the police action as
unreliable to start with, nor to jettison such action merely for the reason
that police did not collect signatures of independent persons in the documents
made contemporaneous with such actions.
this case, the mere absence of independent witness when PW17 recorded the
statement of A2-Ramesh and the nicker was recovered pursuant to the said
statement, is not a sufficient ground to discard the evidence under Section 27
of the Evidence Act.
on consideration of the entire evidence in this case we have no doubt that the
trial court had come to the correct conclusion that the two respondents were the
rapists who subjected Anuradha to such savagery ravishment. The Division Bench
of the High Court has grossly erred in interfering with such a correct
conclusion made by the trial court as the reasons adopted by the High Court for
such interference are very tenuous. Nonetheless it is difficult to enter upon a
finding that the respondents are equally guilty of murder of Anuradha. In the
opinion of PW1 doctor the child died due to intracranial damage consequent upon
surface force impact to the head. The said opinion was made with reference to
the subdural haemotoma which resulted in subarachnoid haemorrage. Such a
consequence happened during the course of the violent ravishment committed by
either both or by one of the rapists without possibly having any intention or
even knowledge that their action would produce any such injury. Even so, the
rapists cannot disclaim knowledge that the acts done by them on a little infant
of such a tender age were likely to cause its death.
they cannot escape conviction from the offence of culpable homicide not
amounting to murder.
result, we set aside the impugned judgment of the High Court. We restore the
conviction passed by the trial court under Section 376 and 377 read with
Section 34 of the IPC. The trial court awarded the maximum sentence to the
respondents under the said counts i.e. imprisonment for life. The fact
situation in this case does not justify any reduction of that sentence. We also
convict the respondents under Section 304 Part II, read with Section 34 of the
IPC though it is unnecessary to award any sentence thereunder in view of the
sentence of imprisonment for life awarded to the respondents under the other
appeal is disposed of accordingly.