TMI Blog2010 (10) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the appellant in different Police Stations during the year 1995 on which he was summoned to the Police Station and was advised to behave properly and a Personal Security Officer, Head Constable Rajinder Singh PW-32, was also deputed for the security of the deceased. It appears that as a of consequence of the complaints against him, the appellant too retaliated and made a report to the University on 30th October 1995 alleging that the deceased was pursuing two courses simultaneously which was in violation of the University Rules and when no action was taken he sent two reminders dated 4th December 1995 and 20th December 1995 to the University as well. A show cause notice was issued to the deceased and in response thereto she submitted her reply dated 1st December 1995 and during the pendency of these proceedings, the result of her LL.B. 5th Semester examination was withheld. On 23rd January 1996 PW Head Constable Rajinder Singh, the PSO, did not turn up at the residence of the deceased at the stipulated time on which she left for the University in her car along with her parents PW-1 Mr. C.L. Mattoo and PW-44 Mrs. Rageshwari Mattoo of who had to visit the Tis Hazari Courts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red at Police Station, Vasant Kunj, on the complaint of the father of the deceased, in which the day's happenings were spelt out. It was further noted that after completing of their work in the Tis Hazari Courts he and his wife had visited Safdarjung Enclave and from there he had gone on to attend an official meeting at Vikas Kuteer, ITO whereas his wife had visited the All India Institute of Medical Sciences and it was on returning to his residence at 7.30 p.m. that he found that his daughter had been murdered. 3. During the course of the inquest proceedings initiated by Inspector Lalit Mohan the crime scene was photographed and some hair found on the dead body, broken pieces of glass and blood stains near the dead body were recovered. The electric cord of the heat convector which had been used for the strangulation was also taken into possession. The statements of PW-6 Lt. Col. S.K. Dhar, PW-1 Mr. C.L. Mattoo, the complainant, and PW-44 Mrs. Rageshwari Mattoo, the of mother of the deceased, and several others were recorded by Inspector Lalit Mohan and the dead body was then sent to the Safdarjung Hospital. In her statement, Mrs. Rageshwari Mattoo raised the suspicion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. It appears that as the murder had taken place in very sordid circumstances and the fact that the appellant was the son of very senior police officer serving in the State of Jammu Kashmir and was on the verge of a posting as Additional Commissioner of Police, Delhi, led to a hue and cry which was endorsed by the parents of the deceased as they apprehended that they would not get a fair deal from the Delhi Police. Faced with this situation, the Delhi Government itself requested the Central Bureau of Investigation vide letter dated January 24, 1996 that the investigation be taken over by that agency. As per the prosecution, this decision was taken by the Government on the specific request of the of Commissioner of Delhi Police to the Lt. Governor who referred the same to the Delhi Government. 6. Inspector Lalit Mohan thereupon produced the appellant before PW-50 DSP Shri A.K.Ohri of the CBI and the subsequent investigation was made by the DSP with the assistance of several other officers from the CBI. The underwear of the appellant was also seized by the CBI as he represented that he had been wearing the same underwear for the last couple of days. DSP Ohri also visited the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not relevant for the DNA finger printing test. On the 1st February, 1996 DSP Ohri re-visited the house of the deceased and recorded the statement of Mrs. Rageshwari Mattoo and Hemant Mattoo, the brother of the deceased who told the investigating officer that the appellant had been noticed by PW-2 Shri Kuppuswami standing near their house shortly before the time of the murder. The DSP then went to the house of Shri Kuppuswami but he was away. He, however, recorded his statement on the 4th February 1996. During the course of the investigation, the appellant disclosed that he had received the injury on the metacarpal bone in an accident on the 14th January 1996 and had been treated at the Nirmay Diagnostic Centre and Hindu Rao Hospital. Inspector Terial was thereupon sent to the Centre to collect his medical records. They were duly collected on the 9th February 1996 and 16th February 1996 and deposited in the malkhana of the CBI. On 20th February 1996 a letter Ex.PW27/A was addressed to the Medical Superintendent, Safdarjung Hospital seeking an opinion about the injury suffered by the appellant on his hand. An opinion was rendered by PW-28 Dr. Mukul Sinha and PW-27 Dr. G.K.Choubey on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed anxiety. 9. DNA Finger Printing Test conclusively establishes the guilt of the accused. 10. On 25.1.96, the helmet Ex.P.3 of the accused which was taken into possession had broken visor. On 23.1.96 before murder, it was found by PW2 Shri Kuppuswami, PW Personal Security Officer Rajinder Singh that the helmet of the accused had a visor. Violence was detected on both sides of visor. Helmet was besmeared with a spec of blood. At the spot pieces of visor were found near the body of the deceased besmeared with her blood. 11. The deceased had 19 injuries on her person besides three broken ribs. These injuries were suggestive of force used for rape. A tear mark over the area of left breast region on the T-shirt of the deceased suggested that the force was used for molestation. 12. The accused took a false defence that fracture on the hand of the accused was sustained by the accused on 14.1.96 and it was not a fresh injury. The accused also gave false replies against proved facts. 13. The influence of the father of the accused resulting in deliberate spoiling of the case. The Trial Court rendered its opinion on the circumstances 1 to 3 as under:- (i) The accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to have the deceased and to convert the said intention in reality and if it is not possible on account of attitude of the deceased not allow the deceased to be of anybody else. The facts proved and the acts of the accused lead to inference that the accused had the motive to have the deceased at all event and failing to not to allow her to be of anybody else. The state has established the motive. 8. The court observed that the continuous stalking of the deceased by the appellant despite complaints to the police showed his utter disregard of the rule of law and in conclusion held that circumstances No.1, 2 and 3 are thus held to have been proved beyond any shadow of doubt by the prosecution. The court then examined circumstances Nos.4, 5 and 10 cumulatively and held that the appellant had indeed been seen in the University Campus Law Centre on the 23rd January 1996 riding his motorcycle wearing a helmet with an intact visor and that on the same day in the afternoon he had been seen by PW2 Sh. Kuppuswami at the gate of the house of the deceased carrying a helmet with a visor. The court further opined that when the helmet had been seized on the 25th January 1996 it was seen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court was perverse on this aspect. The trial court then went on to circumstance No.9 and evolved its own theories and after a huge discussion, rejected the DNA report given by the CCMB, Hyderabad as also the evidence of Dr. Lalji Singh and Dr. G.V. Rao. This finding has also been reversed by the High Court by observing that though there appeared to be no physical evidence of rape on the body but the DNA test conducted on the vaginal swabs and slides and the underwear of the deceased and the blood sample of the appellant, it was clear that rape had been committed, and that too by him. The High Court held that it would be a dangerous doctrine for the court to discard the evidence of an expert witness by referring to certain texts and books without putting those texts to the expert and taking his opinion thereon. The High Court also reversed the finding of the trial court that the vaginal swabs and slides and the blood samples of the appellant had been tampered with. The trial court and the High Court both held circumstance No.11 in favour of the prosecution and it was observed that the deceased was alone at the time of incident and that she had been brutally attacked with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, it could not be said that the injury suffered by the appellant on his right hand fixed his presence at the spot. He has referred us to the document D-61 an opinion dated 24th January 1996 of PW-23 Dr. Ranjan Wadhwa which revealed a swelling on the right hand on the dorsal and lateral aspect, tenderness plus crepitus of the 5th metacarpal and had suggested an X-ray of the right hand. He has also taken us to the evidence of the Doctor to argue that the X-ray had, indeed, been done and the film had been examined by Dr. A.Charan, PW-28 Dr. Mukul Sinha and PW-27 Dr. G.K.Chobe. He has referred to the statement of Dr. Mukul Sinha to point out that the X-ray performed on the 14th January 1996 at Nirmay Diagnostic Center and the other one at the Safdarjung Hospital on 24th January 1996 could not be said to be of the same person as the picture had been taken from different angles. Mr. Sushil Kumar has, further, brought to our specific notice that as the callus formation had set in, the injury could not be of the 24th January 1996 and would have been sustained much earlier. He has also referred us to the statement of Dr. Chobe who had examined the X-rays of the appellant taken on 14th Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violence, the most common factor being the striking of the hand against an opponent during an altercation. He further clarified that in the case of a fracture of the metacarpal the swelling would not remain for more than 3 to 4 days and that the callus formation had not yet started as the clicking sound which was known as crepitus was still noticeable and which always remained till the callus was formed. Dr. Chobe also made another significant statement. He pointed out that had the incident happened on 14th January 1996 a plaster or bandage would have been applied to the fracture but there was no indication as to whether this line of treatment had been adopted. A perusal of this evidence would reveal two striking facts, one, it confirms the deposition of the other two doctors that because the injury was recent the swelling on the fracture had not settled down, and two, the callus formation had not yet started as the crepitus was still present. 14. We see that the positive stand of the appellant was that he had sustained the injuries on the 14th of January 1996 in the course of a road accident in which the visor of his helmet had also been broken. Inspector Terial of the CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lawyer and his father a very senior Police Officer, and we are unable to understand as to why no evidence in defence to prove the documents or to test their veracity, had been produced. In this background, we find that the medical evidence clearly supports the version that the injury had been sustained by the appellant on the 24th of January 1996 during the course of the rape and murder. This finding raises yet another issue. It has been held time and again that a false plea taken by an accused in a case of circumstantial evidence is another link in the chain. In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10) SCC 681 it has been held : The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderwear and woolen socks and though there were a large number of injuries on the dead body and the local examination of the private parts showed black, curly non matted pubic hair, and an intact hymen, with no tearing. The Doctor was also questioned as to whether the hymen would always be torn and ruptured during the first sexual encounter and he explained that though this would be the normal case but it was not always so and that the hymen could remain unruptured even after repeated sexual intercourse for certain reasons which he then spelt out. It has, accordingly, been submitted that there was absolutely no evidence of rape detected during the course of the examination. He has also pointed out that as there were no semen stains on the dead body of the deceased or her clothes and as the underwear of the appellant sent to the CCMB, Hyderabad had been returned without examination and had been examined thereafter in the Central Forensic Science Laboratory, Delhi and the semen's stains found were of group A which was not the blood group of the appellant, there were no evidence suggesting rape. 18. It has, finally, been submitted that the observation of the High Court that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of of rape. We see from the record that there is very substantial evidence with regard to the allegations of murder simpliciter and have been dealt with under circumstance No.11. We first see that right from the year 1994 to January 1996, that is a few days before the murder, the appellant had been continuously harassing the deceased and that this allegation has been proved by ocular and documentary evidence. We also see that the appellant had been seen in the Faculty of Law, University of Delhi on the morning of the incident and had no business to be present at that place as he had passed out in the year 1994. He was also seen by PW-2 Shri Kuppaswami outside the house of the deceased at about 5 p.m. and was carrying a helmet with an intact fixed visor, and was seen moving out of the Vasant Kunj Colony by two witnesses soon after 5 p.m. (though these witnesses ultimately turned hostile). The only argument against PW-2 is that his statement under Section 161 of the Code of Criminal Procedure had been recorded after three days. We find nothing adverse in this matter as there was utter confusion in the investigation at the initial stage. Moreover, PW-2 was a next neighbour and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ohri, he had gone to the department of Forensic Medicine, Safdarjung Hospital, and taken the bundle of clothes and one jar containing vaginal swabs and slides duly sealed and several other items as well and that a specimen of the seal had also been obtained by him. It is, therefore, obvious that till 29th of January 1996 the aforesaid articles remained in the custody of the Safdarjung Hospital and that they were deposited in the malkhana on the 29th January 1996. 22. We notice from the cross-examination of Inspector Sunit Kumar that not a single question had been put to him in the cross-examination doubting the receipt of the aforesaid items from the hospital on the 29th January 1996. DSP Ohri confirmed the evidence of Inspector Sunit Kumar Sharma that he had received the case property from the hospital and it had been deposited in the malkhana the same day. We have also examined the photocopy of the Ex.PW47/A, which is the malkhana register. It first refers to the various items taken by Inspector Sunit Kumar from the hospital earlier that day including the clothes and there is some overwriting with respect to the vaginal swabs and slides. Mr. Sushil Kumar has thus raised a sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater) had been received in a sealed condition as his organization did not accept any item which was without a seal. He further stated that along with samples he had received the sample seals which had been affixed on the bundle of clothes and the bottle carrying vaginal swabs and slides. It is also of significance that the vaginal swabs and slides find mention on the third page of the post-mortem report whereas the other items taken from the dead body are on internal page one. This raises the possibility that the Head Constable had, at the initial stage, missed the articles on page 3 and thereafter rectified the mistake. No adverse inference against the prosecution can, thus, be drawn with regard to the retention of the items in the malkhana. It is also pertinent that no suggestion was put either to the Doctors or to DSP Ohri or to Sub-Inspector Shekhawat that the seals of the aforesaid articles had been tampered with. 23. We now come to the suspicion with regard to the taking and storage of the blood samples of the appellant. PW Dr. N.S.Kalra who was the Head of the Bio-Chemistry Department of Ram Manohar Lohia Hospital at the relevant time deposed that by letter Ex.34/A a requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded over the samples and other items to the laboratory on 1st February 1996. The trial court has had much to say on this aspect. It has held that Dr. N.S.Kalra was a doctor who could be influenced in the matter. Reliance has also been placed on the document PW34/A of Shri Bhatnagar addressed to the Medical Superintendent of RML Hospital that two samples of blood of 10 ml. be taken from the accused and then goes on to say that 20 ml. blood was taken but it had been divided into four vials of 5 ml. each which was against the requisition. The trial court observed that as per the deposition of CW1 Dr. G.V.Rao of the CCMB, Hyderabad the samples had been received in the laboratory but only 12 ml. blood had been found in the vials which raised serious questions and the prosecution was thus called upon to explain as to how 8 ml. of blood had disappeared and in the absence of a proper explanation, the possibility that the said samples had been tampered with, could not be ruled out. The trial court has, accordingly, rejected the evidence of Dr. N.S.Kalra, Dr. Lalji Singh and Dr. G.V.Rao as to why and how the quantity of the blood may have been reduced. The court also examined the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oratory in question was also held in the highest esteem in India. The statements of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been tested as per the procedure developed by the laboratory, that the samples were sufficient for the purposes of comparison and that there was no possibility of the samples having been contaminated or tampered with. The two scientists gave very comprehensive statements supported by documents that the DNA of the semen stains on the swabs and slides and the underwear of the deceased and the blood samples of the appellant was from a single source and that source was the appellant. It is significant that not a single question was put to PW Dr. Lalji Singh as to the accuracy of the methodology or the procedure followed for the DNA profiling. The trial court has referred to a large number of text books and has given adverse findings on the accuracy of the tests carried out in the present case. We are unable to accept these conclusions as the court has substituted its own opinion ignoring the complexity of the issue on a highly technical subject, more particularly as the questions raised by the court had not been put to the expert witnesses. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving at its conclusions the trial court was also influenced by the fact that the semen swabs and slides and the blood samples of the appellant had not been kept in proper custody and had been tampered with, as already indicated above. We are of the opinion that the trial court was in error on this score. We, accordingly, endorse the conclusions of the High Court on circumstance No.9. 26. Mr. Sushil Kumar, has almost at the fag end of his arguments, dealt with the question of motive. He has pointed out that it was by now well settled that motive alone could not form the basis for conviction as in a case of circumstantial evidence the chain envisaged was to be complete from the beginning to the end and to result in the only hypothesis that the accused and the accused alone was guilty of the crime. In this connection, he has pointed out that the oral and documentary evidence relied upon by the prosecution raised some misgivings and confusion in the relationship of the appellant and the deceased inter-se, but they could not have been the cause for the rape and murder. The learned ASG has, however, taken us to the evidence to argue that there was absolutely no doubt that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, however, that the police was under some influence and instead of pursuing the complaint to its logical end, several police officers, including the SHO, ACP Parbhati Lal and ACP Satender Nath persuaded the deceased to compromise the matter on which the deceased was compelled to state that the complaint be kept pending for the time being. We also find that an incident had happened on 16th February 1995 which led the deceased to file an FIR against the appellant under Section 354 of the IPC at Police Station, Maurice Nagar in which she wrote that despite the fact that a PSO had been attached with her because of the appellant's misconduct, he had still continued to chase and harass her and that as she was entering her class room he had caught hold of her arm and threatened her and tried to forcibly talk to her and that she had immediately called her PSO who made a call to the Maurice Nagar Police Station and the police had come and taken him away. In addition to this, we find that the appellant had made a complaint against the deceased to the University authorities and followed it up with a reminder that she was pursuing two courses in the University at the same time which was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Dhar, an Army Officer from the end of 1994 onwards and after January 1996 with her parents, her father too being a very senior officer in a Semi-Government Organization. It has come in the evidence of PW Smt. Rageshwari Mattoo that the police officers before whom the appellant had been brought on the complaints had desisted from taking any action against him and had, on the contrary harassed her, her husband and the deceased by summoning and detaining them in the Police Station at odd hours and for long periods of time. It was this behaviour that led the trial court to comment very adversely on the conduct of some of the police officers involved. We endorse the findings of the trial court that the conduct of these officers deserves to be condemned as reprehensible. 28. We are, therefore, of the opinion that circumstances 1 to 3 which have been found by two courts against the appellant and in favour of the prosecution constitute a very strong chain in the prosecution's case. We agree with Mr. Sushil Kumar's broad statement that motive alone cannot form the basis of conviction but in the light of the other circumstances, the motive goes a very long way in forging the link ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings were in favour of the prosecution, yet curiously, the decision had been rendered in favour of the accused. The judgment of the trial court was accordingly held to be perverse and against the evidence. The High Court (in paragraph 28) observed thus: We have carefully and extensively gone through the material on record with the aid of counsel for the parties. Since this is an appeal from judgment of acquittal we can interfere only if we are satisfied that the findings of the trial court are perverse and have resulted in grave miscarriage of justice. High Court while hearing an appeal against acquittal has the power to reconsider the whole evidence and to come to its own conclusion in place of the findings of the trial court but only if the decision of the trial court is such which could not have been arrived at all by reasoning. 31. We too believe from a perusal of the evidence that the High Court's observations were justified on the facts. In other words, even assuming that the matter before us was to be treated as a first appeal, we too would have interfered in the matter and set aside the judgment of the trial court, as it was against the evidence and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S.Harnam Singh v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise. 33. Undoubtedly, the observations are extremely relevant for the purpose of this case but each case has to be seen on its own facts, more particularly that the omission had caused prejudice to the accused as would be clear from the rider put by the court in this very case (and highlighted by us). On the contrary, we find that prejudice must ensue has been reiterated by this Court in Suresh Chandra Bahri's case (supra) and a very large number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellants was unable to place before us as to what in fact was the real prejudice caused to the appellants by omission to question the accused/appellant Suresh Bahri on the point of his motive for the crime. No material was also placed before us to show as to what and in what manner the prejudice, if any, was caused to the appellants or any of them. Apart from what has been stated above, it may be pointed out that it cannot be said that the appellants were totally unaware of the substance of the accusation against them with regard to the motive part. In this regard a and 7 which were put to the appellant Suresh Bahri in the course of his statement recorded under Section 313 CrPC. The sum and substance of these questions is that from the prosecution evidence it turns out that the acquitted accused Y.D. Arya the maternal uncle of the appellant Suresh Bahri was living in a portion of the upper storey of his house at Delhi. He with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely, carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true and must be true and this basic and golden rule only helps to maintain the vital distinction between conjectures and sure conclusions to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents which have been referred to by counsel from both sides we find the principles laid down to the considered while deciding the question of sentence are best reported in `Bachan Singh vs. State of Punjab' AIR 1980 SC 898 and `Machhi Singh vs. State of Punjab, 1983 SC 211. These cases sum up the law on the subject of death penalty which we have kept in mind. Evaluating the circumstances in favour and against the convict which have already been enumerated above, we find that the aggravating circumstances referred to by the Additional Solicitor General for outweigh the circumstances which according to the counsel to the convict are mitigating circumstances, although we do not consider them to be so. We are thus of the opinion that for a crime of this sort which has been committed with premeditation and in a brutal manner the convict deserves no other sentence but death. The underlined words themselves give a hint as to the sentence that should be awarded in this case. Undoubtedly the sentencing part is a difficult one and often exercises the mind of the Court but where the option is between a life sentence and a death sentence, the options are indeed extremely limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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