TMI Blog2000 (11) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hence they cannot escape conviction from the offence of culpable homicide not amounting to murder. Thus set aside the impugned judgment of the High Court and 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 two counts. - CRL.A. 1119 OF 1998 - - - Dated:- 29-11-2000 - THOMAS K.T. AND SETHI, R.P., JJ. JUDGMENT THOMAS, J. Two sex maniacs libidinously ravaged a tin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. PW1 - 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. The 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. Marks of violent handling of both the thighs, lower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). It was the said doctor who pronounced the girl dead. He made the above entry in the MLC. It must be noted that Dr. Gajrat Singh was not examined as a witness in the court. Apparently 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. Whatever 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 initial stage. Learned 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The 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. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Recovery 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: It 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 Eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. Hence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hence they cannot escape conviction from the offence of culpable homicide not amounting to murder. In the 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 justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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