Punjab-Haryana High Court
State Of Haryana vs Satish on 27 May, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : May 27, 2010
(1) Crl. Appeal No.814-DBA of
2003
State of Haryana ...Appellant
Versus
Satish ...Respondent
Present : Mr. Sandeep Vermani, Addl. AG, Haryana,
for the appellant-State.
Mr. H.S.Brar, Advocate,
as Amicus Curaie for the respondent.
(2) Crl. Appeal No.651-DB of 2003
Satish ...Appellant
Versus
State of Haryana ...Respondent
Present : Mr. Deepinder Singh, Advocate
as Amicus Curaie for the appellant.
Mr. Sandeep Vermani, Addl. AG, Haryana,
for the respondent-State.
(3) Crl. Appeal No.11-DB of 2004
State of Haryana ...Appellant
Versus
Satish ...Respondent
Present : Mr. Sandeep Vermani, Addl. AG, Haryana,
for the appellant-State.
Crl. Appeal No.814-DBA of 2003 2
Mr. Deepinder Singh, Advocate,
as Amicus Curaie for the respondent.
(4) Crl. Appeal No.82-DB of 2004
State of Haryana ...Appellant
Versus
Satish ...Respondent
Present : Mr. Sandeep Vermani, Addl. AG, Haryana,
for the appellant-State.
Mr. H.S.Brar, Advocate,
as Amicus Curaie for the respondent.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No 814 of 2004 preferred by the State of Haryana against the judgment dated 13.2.2003 passed by the learned Addl. Sessions Judge (Ad hoc), Jhajjar, whereby Satish-accused has been acquitted of the offences under Sections 363 and 376 IPC; Criminal Appeal No.651-DB of 2003 filed by Satish-accused and Criminal Appeal No.11-DB of 2004 filed by the State claiming enhancement of the sentence to death for the offences under Sections 364, 376 & 302 IPC arising out of judgment of the learned Addl. Sessions Judge (Ad hoc), Jhajjar, dated 4.7.2003; and Criminal Appeal No. 82 of 2004 preferred by the State of Haryana for enhancement of sentence to death, arising out of the judgment dated 13.2.2003 passed by the learned Addl. Sessions Judge (Ad hoc), Jhajjar, convicting Satsih- accused for the Crl. Appeal No.814-DBA of 2003 3 offences under Sections 364, 376 and 302 IPC and sentenced to undergo life imprisonment. The accused has not preferred any appeal against the said judgment of conviction.
Since the question in all these appeals are common though on different facts, we shall take common questions together whereas, the facts of each case will be considered at the appropriate places.
Before adverting to the facts relevant to the decision of these cases, it is essential to narrate history of the crimes involving accused. Earlier, in case arising out of FIR No.363 dated 7.9.1998, PS City, Bhadurgarh for offences under Section 363,366,302 and 201 IPC, the accused was interrogated by Smt. Suman Manjri, Deputy Superintendent of Police. The accused suffered a disclosure statement in that case admitting his involvement in committing the act of kidnapping, rape and murder by strangulation of minor girls. The accused was also subjected to Lie Detection Test on 1st, 2nd & 3rd of December, 1998 by Dr. Bibha Rani, Lie Detection Expert, wherein the accused admitted his involvement in several cases of kidnapping, rape and murder of minor girls.
In another case arising out of FIR No. 252 dated 12.06.1998, P.S.Bahadurgarh, the investigating officer sought custody of the accused for determining his mental health under the Mental Health Act on 10.12.1998. The said request was allowed by the learned magistrate on 10.12.1998 and the Superintendent, District Jail, Rohtak was directed to transfer the accused to PGIMS, Rohtak for keeping him under observation of Dr. Rajiv Gupta for ten days for conducting personality profile test. The accused was admitted in Psychiatry ward of PGIMS, Rohtak on 10.12.1998 and was discharges on 23.12.1998. Dr. Rajiv Gupta has opined in his report dated Crl. Appeal No.814-DBA of 2003 4 23.12.1998 that the accused is not suffering from any psychotic disorder. However, on psycho-diagnostic test, the accused was found having a neurotic type of personality.
The accused submitted an application dated 19.12.1998 to Dr. Rajiv Gupta intending to make his confessional statement. Such application was forwarded by the doctor to the Magistrate through ASI Rohtas Singh. The learned Magistrate ordered that the accused be produced before him on 21.12.1998. The accused was produced before him on 21.12.1998, but the accused was directed to be produced next day after explaining the accused that he was not bound to make the confessional statement and that in case he made it, the same could be read against him. Time was given to the accused for reflection and second thought to the matter. On 22.12.1998, the accused was again produced before the learned Magistrate. The accused was still willing to make the confessional statement and on identification of accused by ASI Rohtas Singh, his statement was recorded under Section 164 Code of Criminal Procedure, 1973 (for short Code), wherein he admitted his guilt in several other cases of such type. The accused put his signatures on that statement after admitting the same to be correct. On the foot of the statement, the learned magistrate has recorded a note as contemplated ny Sub Section 4 of Section 164 of the Code as well. With this background, the appeals are taken up for decision.
Re: Criminal Appeal No 814 of 2003 (FIR No 7 Dated 14.1.1996 U/S 363/376 IPC PS City Bahadurgarh) The prosecution case was set in motion on the statement of Jugal Kishore son of Mukand Lal, when he lodged a report with the Police Crl. Appeal No.814-DBA of 2003 5 of P.S. City Bahadurgarh that his brother's daughter Pinki, aged about 6 years left the house at about 6.30 PM on 4.1.1996 for purchasing tea leaves. She went towards the side of mal godown road with money, but she did not turn up for about half an hour. After waiting for her return, he and the other family members started search for the girl. He and his brother Vishnu Bhagwan and Ram Kishore were going towards the Bazar in search of the girl and when they reached near the house of Pale Ram Aggarwal, they heard the groans made in agony by the girl from a gher. They entered the gher and found the girl lying there near a bush in naked condition and unconscious. She was bleeding from her private parts. Shree Bhagwan and Ram Kishore rushed for arranging a vehicle and they turned up soon with a vehicle and took the girl to Jaipur Golden Hospital, Delhi for her treatment whereas he informed the police on telephone about the occurrence. On receipt of telephonic message, ASI Jaipal Singh, P.S.City Bahadurgarh accompanied by other police officials reached at the place of occurrence. At that place, the statement of the complainant Ex.PJ was recorded, which was signed by him after admitting the same as correct. Thereafter ASI Jaipal Singh, made his endorsement Ex.PJ/1 on the statement and sent the same to the Police Station. On the basis of said endorsement, FIR Ex.PAD was recorded by HC Jai Singh. From the spot, ASI Jaipal Singh recovered the pant of the girl. The same was converted into parcel duly sealed and taken into possession vide memo Ex.PK.
The girl (Pinki) was medico-legally examined by Dr. M. Siddiqui on 4.1.1996 at Jaipur Golden Hospital. She was unconscious. The doctor has prepared two sealed parcels i.e. one of clothes worn by the girl and second of vaginal swabs and slides. Both the sealed parcels were Crl. Appeal No.814-DBA of 2003 6 handed over to the police. The police completed investigations and put up report against one Ram Babu as an accused. The proceedings were consigned to record as abated on 12.9.1998 after the death of Ram Babu. The present accused was arrested in case arising out of FIR No. 363 dated 7.9.1998 and on further investigations in this case, as per his disclosure statement and on completion of investigation, the accused was made to stand trial for the offences under Section 376 and 363 of IPC.
To prove the charges against the accused, the prosecution has examined Vishnu Bhagwan, father of the girl as PW-3; Dr. Rajiv Gupta as PW-11; Shri Harnam Singh Thakur, the learned Magistrate as PW-22; the prosecutrix Pinki as PW-23; Ram Kishore as PW-13; and Jugal Kishore, author of the FIR and brother of Vishnu Bhagwan as PW-12. The prosecution has also examined numerous other witnesses to complete the chain of circumstances.
The learned trial Court passed an order of acquittal after returning a finding that earlier the prosecution has charged one Ram Babu as an accused and was made to stand trial. Eight witnesses were also examined. The accused died during the trial, but fresh investigation and reinvestigation has been made so as to charge the accused for the offences under Sections 363 and 376 IPC without the permission of the Court or of the Government, therefore, the proceedings stand vitiated. It is the said order, which is challenged by the State in appeal.
The question, whether the investigating agency is required to obtain permission of the Court to make further investigation or reinvestigation has received the attention of the Court from time to time. The courts have time and again held that right to further investigate is Crl. Appeal No.814-DBA of 2003 7 plenary in nature and the police has jurisdiction to further investigate in the matter even after filing of report under Section 173(2) of the Code but it desirable that permission of the court is sought. One of the such judgment is T.T. Antony v. State of Kerala, (2001) 6 SCC 181, wherein it is held that :
"23. The right of the police to investigate into a cognizable offence is a statutory right over which the court does not possess any supervisory jurisdiction under CrPC. In Emperor v.
Khwaja Nazir Ahmad AIR 1945 PC 18, the Privy Council spelt out the power of the investigation of the police, as follows:
"In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court."
24. This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well- recognised limitations. One of them, is pointed out by the Privy Council, thus:
"If no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.... "
25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice.
Crl. Appeal No.814-DBA of 2003 8
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
In Nirmal Singh Kahlon v. State of Punjab,(2009) 1 SCC 441, the Hon'ble Supreme Court has held that the further investigation in respect of an offence after a report under Section 173 of the Criminal Procedure Code has been forwarded to a Magistrate is not prohibited. It was held to the following effect :
Crl. Appeal No.814-DBA of 2003 9
"68. An order of further investigation in terms of Section 173 (8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision. Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of U.P. (2008) 2 SCC 409, correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.
In Ram Lal Narang v. State (Delhi Admn.)1979(2) SCC 322, the Hon'ble Supreme Court has observed that :
"20. ... The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the court of any Crl. Appeal No.814-DBA of 2003 10 offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light.
21. ... In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking its formal permission to make further investigation."
The learned trial court acquitted the accused relying upon a single Bench judgment of this court in Vikas Gupta vs. State of Punjab (2002(2) RCR (Cr) 12) and the judgments of Supreme Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 and K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223. The said judgments of the Supreme Court have also held that the police has power to investigate but the formal permission from the court is desirable. In the present case, the report under Section 173(2) of Code was earlier lodged against one Ram Babu. He died. Thereafter, while investigating another case, the involvement of the present accused came to light. Further investigations were carried out presumably in exercise of powers conferred on investigating agency under section 173(8) Crl. Appeal No.814-DBA of 2003 11 of the Code. At that time, the proceedings against Ram Babu stood abated. The desirability of permission of the court thus in these circumstances was not a condition precedent. As per ratio of cases mentioned above, the investigating agency has right to carry out investigations. The court has supervisory jurisdiction which is more in the nature of to maintain independence of judiciary. Thus, the investigation carried out so as to charge the accused cannot be said to be without jurisdiction. At best, it would be an irregular exercise of power, but it does not affect the right of police to carry out further investigation. Therefore, in view of the principals of law enunciated, we find that the finding recorded by the learned trial court acquitting the accused for carrying further investigations without the leave of the court is not correct. Thus the said finding is set aside.
With the assistance of the learned counsel for the parties, we have examined evidence on record. We have also examined the judgment dated 21st January, 2008 passed by the Division Bench of this Court in Criminal Appeal No.235-DB of 2005 titled 'Satish Vs. The State of Haryana' and other connected appeals. Vide the aforesaid judgment, the conviction of the accused for the offences of murder and rape of the deceased Puja, Jony, Sweta and Kuki @ Karuna was upheld, after relying upon the confession of guilt made by the accused under Section 164 Code In addition to the conviction of the accused for such offences in respect of the above named four small girls, the conviction of the accused for the offences under Sections 364, 376 and 302 IPC in respect of victims Arti, Sheetal, Shanti and Janno was also upheld. It was inter alia found to the following effect :
Crl. Appeal No.814-DBA of 2003 12
"26. We have already referred to the procedure followed in the present case. In the facts and circumstances of the present case, it cannot be held that proper procedure for recording confession was not followed by the Magistrate. The Magistrate gave one day's time for reflection as per law laid down in Sarwan Singh (supra). There is no grievance that legal aid was not provided to the accused. In any case, mere absence of legal aid by itself was not always sufficient to hold that procedure for recording confession was not duly followed. The Magistrate has given endorsement of his being satisfied that confession was voluntary. The Magistrate asked questions to the accused to satisfy himself. He also ensured that the accused was not sent to police custody. He also recorded a certificate that confession was recorded in his handwriting and read over to the accused and admitted by him to be correct and the same was true account of his statement.
As already mentioned that the accused has not preferred any appeal in respect of conviction in four cases. In one of the cases, his appeal has been disposed of, since he had completed the sentence.
In above circumstances, we are of the view that procedure followed by the Magistrate was proper and the confession is not vitiated on account of any procedural irregularity."
The Division Bench of this Court has further held that the confession made by the accused was genuine and voluntary and could be acted upon and made basis for convicting the accused.
In the confession so recorded and proved by the prosecution by examining Shri Harnam Singh Thakur, the learned Judicial Magistrate as PW 22 in the present case, Pinki, the prosecutrix is the sixth girl picked up by the accused from Nehru Park. Apart from such confessional statement, Crl. Appeal No.814-DBA of 2003 13 the most material evidence is of prosecutrix Pinki who appeared as PW-23. In fact, perhaps she is the only victim who survived and appeared as witness. She was 12 years of age and student of 7th class, when she appeared as a witness on 2nd May 2002. In her examination-in-chief, she has deposed that when she reached near the park, the accused present in the Court met her and he carried her to a plot by misrepresentation. On reaching the plot, he gagged her mouth and pressed her throat and removed her pants, which she was wearing. She then stated that she became unconscious. She was declared hostile and after getting the permission of the Court, the Public Prosecutor cross-examined her. In her cross-examination by the Public Prosecutor, she accepted the statement Ex.PAC made by her to the Police, wherein she has told the Police that after removing her pants, accused started rubbing his male organ with her vagina. She became unconscious when he pressed her mouth with force. She has further deposed that accused raped her by rubbing his male organ with her vagina and that she was taken to a doctor by her father and the police and she was medically examined. The pants were taken by the doctor in his possession. On further cross-examination by the counsel for the accused, she deposed that the accused present in the dock is the same person, who took her to park by making misrepresentation and who committed rape on her. She clearly identified the accused. She deposed that she did not appear before any other court in connection with this incident in which she was raped and did not give evidence before any other Court. She has further deposed that she seen the accused Satish for second time today as earlier he was seen by her when he took her to the park and raped her. The evidence of the prosecutrix fully supports the prosecution case. She identifies the accused in the Court. Crl. Appeal No.814-DBA of 2003 14 Such evidence is corroborated by the statement of her father PW-3 Vishnu Bhagwan, PW-12 Jugal Kishore, author of the FIR, and PW-13 Ram Kishore.
Learned counsel for the accused has argued that the disclosure statement is not admissible in evidence being retracted statement and that it is not proved to be signed by the accused, which is required in terms of Section 164 read with Section 281 of the Code. The accused was produced before the learned magistrate by police and that the necessary conditions for recording of confessional statement were not followed by the court, therefore, the prosecution has failed to prove the charges against the accused in the present case.
We do not find any merit in the argument raised by the learned counsel for the accused. PW-22 Shri Harnam Singh Thakur, the learned Magistrate, who has recorded the confessional statement has deposed on the basis of record of FIR No.252 dated 12.06.1998 'State Vs. Satish' that confessional statement Ex.PA was written by him in his hand writing and that it was read over to Satish and that he signed the same. The statement Ex.PX produced before the learned trial Court is a typed copy of the statement whereas the Photostat copy of the statement attested by police is Ex PAE, though the said statement is not complete, it being of 6 pages and to be continued to 7th page. But from limited number of pages of the photostat copies of such statement shows that the signatures of the accused appear on each page. The learned Magistrate has deposed to this effect. He has deposed that the accused signed statement after the same was read over to him and that he recorded the entire statement in his own handwriting. Crl. Appeal No.814-DBA of 2003 15
Learned counsel for the accused relying upon Chandran Vs. The State of Madras AIR 1978 Supreme Court 1574, Union of India and others Vs. J.S.Brar AIR 1993 Supreme Court 773 and K.I.Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997) 3 Supreme Court Cases 721, has vehemently argued that the retracted confessional statement cannot be relied upon to sustain a conviction. It is argued that the accused has retracted from his confession in his statement under Section 313 Code, therefore, the confessional statement Ex.PX cannot be made basis of the conviction of the accused.
We find no merit in the said argument. A Division Bench of this Court has already taken a view that such confession of the accused is admissible in evidence. The accused has been convicted relying upon such evidence in many other cases. It has been found to be voluntarily made. The accused moved an application dated 19.12.1998 Ex.PT before Dr. Rajiv Gupta intending to make his confessional statement. Such application was forwarded by the doctor to the Magistrate through ASI Rohtas Singh. The learned Magistrate ordered that the accused be produced before him on 21.12.1998 vide order Ex.PU. The accused was produced before him on 21.12.1998, but the accused was directed to be produced next day after explaining the accused that he was not bound to make the confessional statement and that in case he made it, the same could be read against him vide order Ex PV. Time was given to the accused for reflection and second thought to the matter. On 22.12.1998, the accused was again produced before the learned Magistrate. The accused was still willing to make the confessional statement and on identification of accused by ASI Rohtas Singh, his statement Ex.PX was recorded under Section 164 Code, wherein Crl. Appeal No.814-DBA of 2003 16 he admitted his guilt regarding the present case as well as his indulgence in several other cases of such type. The accused put his signatures on that statement after admitting the same to be correct. PW-22 Shri Harnam Singh Thakur, the learned Magistrate, who recorded the confession has appeared as a witness and has deposed that the confession was made by the accused voluntarily. He has denied that the accused was not in a fit state of mind to understand the questions put by him to the accused. He has denied that the police was standing behind the accused, when he recorded his confessional statement. From such cross-examination, it cannot be inferred that the confessional statement was not made voluntarily by the accused. The cross examination on the learned judicial magistrate is not suggestive of exercise of any force and that the accused was not in proper state of mind.
In Chandra's case (supra), the court considered the parameters for recording of confession by a magistrate under Section 164 of the Code, it held :
"But that Section does not make it obligatory for the Magistrate to append at the end of the record of the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If, the Magistrate recording a Crl. Appeal No.814-DBA of 2003 17 confession of an accused person produced before him in the course of police investigation, does not, on the face of the record, certify in clear, categorical terms his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial."
In J.S.Brar's case (supra), the court was considering the legality of court martial proceedings and retracted confession of one of the co-accused Pradhan in proceedings against Major J.S.Brar. The court held that such confession can not be taken into consideration. It was not a confession of an accused and recorded before a Magistrate under Section 164 of the Code. In K.I.Pavunny's case (supra), the confession was recorded by a custom officer. The admissibility of such statement in criminal proceedings was the issue in the said case. The court has discussed the confessions under Section 164 of the Code and held as under :
"It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well-settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of Crl. Appeal No.814-DBA of 2003 18 voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (AIR 1952 SC 214 para 30). If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of a given set of facts. The high degree of proof and probative value is insisted in capital offences."
The accused has denied making any confession only in his statement under section 313 of the Code. There is no other evidence to Crl. Appeal No.814-DBA of 2003 19 show that the accused retracted from his confession at any time. The statement under Section 313 of the Code is not evidence in trial, but is an opportunity to the accused to explain the circumstances appearing against the accused in the prosecution case. We find from the evidence on record that accused cannot be said to have retracted his confession. The accused was in judicial custody and in hospital, when, the confessional statement was recorded. The request to make confessional statement came through the doctor, who was medically examining accused. Therefore, it cannot be said that the accused retracted from his confession in his statement under Section 313 Code. The accused has not offered any explanation in his statement that such confessional statement was recorded under pressure or some other relevant circumstances which may create doubt on the prosecution case.
In view of the above, we find that the argument that the accused has retracted from his confession in not tenable in law. Thus the prosecution has proved the commission of offence under Section 372(2)(f) IPC against the accused. The accused stands convicted for such offence.
Re: Criminal Appeal No.651 of 2003 and Criminal Appeal No.11 of 2004 (FIR No. 424 dated 21.6.1997 Under Sections 364/376/302/201 IPC PS City Bahadurgarh) The prosecution case was set in motion on the statement of Jai Kishan son of Chatar Singh, which is to the effect that he is earning his livelihood as a vegetable vendor. He has two sons and two daughters including Manju aged about 7 years. He has stated that on the intervening night of 20/21.6.1997, he alongwith his wife Kavita were sleeping in the courtyard of their house. Poppy, his son was sleeping with him, while his Crl. Appeal No.814-DBA of 2003 20 daughters Manju and Suman were sleeping with their mother. At about 3.00 PM, Kavita got up and at that time Manju was sleeping at the cot. However, at about 4.00 AM, when Kavita again got up, she found Manju missing from the cot. She went to the cot of her husband and told him that Manju was missing. Both of them made search for the girl in the house as well as on the roof of the house, but the girl was not found. Thereafter, Kavita went to the house of her brother Ram Kishan in search of the girl, but she was not found there also. They all set out in search of the girl and when they reached near Piau of village Bamdoli, they saw the dead body of Manju lying under a tree. ASI Ram Kishan has recorded such statement Ex.PE of Jai Kishan, which was signed by him after admitting the same as correct. Thereafter, ASI Ram Kishan made endorsement on such statement and sent the same to the Police Station for registration of FIR. On receipt of ruqa, FIR Ex.PE/1 was lodged. ASI Ram Kishan visited the spot with the complainant and prepared the inquest report. He sent the dead body of the deceased to the hospital for post-mortem examination through Constables Ravinder and Sanjay. He also picked up a torn piece of underwear of the girl having blood stains and converted into parcel duly sealed with seal 'RK' and taken into possession vide recovery memo Ex.PI. Dr. R.K.Wadhwa, who conducted the post-mortem examination over the dead body of Manju sealed her shirt and salwar into a parcel and also prepared vaginal swab and the same were handed over to Constable Ravinder alongwith post-mortem report and inquest papers duly signed by him. Constable Ravinder handed over the same to SI Ram Kishan, who has taken into possession the same vide memo Ex.PH.
Crl. Appeal No.814-DBA of 2003 21
On 10.7.1997, one Shankar Kumar was arrested in this case. He was being prosecuted but the occurrences of similar nature continued to be occurring and ultimately the present accused namely Satish was arrested in FIR No.363 of 1998 on the pointing out of minor girl Somani, who was another victim of the accused. At that stage, the accused was interrogated by Smt. Suman Manjri, Deputy Superintendent of Police. The accused suffered a disclosure statement in that case admitting his involvement in several cases of kidnapping, rape and murder of minor girls.
In the present case, the prosecution has examined PW-2 Dr. Rajiv Gupta, who has deposed that the accused did not show any oddities of behaviour and was co-operative towards the treating team. He was never found to be aggressive and hostile. He described all the events without anger, shame, guilt or fear. In the later part of history, his statements were found contradictory and he said that he was forced to admit all the crimes by the police, while he had only committed the last abduction. It was opined that he is not suffering from any psychotic disorder. In his cross- examination, he has deposed that there was no previous history of insanity of Satish.
The father of the prosecutrix namely Jai Kishan appeared as PW-10, who deposed that the post-mortem examination of her daughter's dead body was conducted and thereafter the dead body was cremated by him; the mother of the prosecutrix namely Kavita appeared as PW-11; Mahender, brother of Jai Kishan- father of the deceased appeared as PW-12; and Shri Harnam Singh Thakur, the learned Magistrate appeared as PW-16, who proved the confessional statement made by the accused as Ex.PK/4. The prosecution has also examined numerous other witnesses to complete Crl. Appeal No.814-DBA of 2003 22 the chain of circumstances. After going through the evidence on record, the learned trial Court convicted and sentenced the accused Satish, as mentioned above.
However, an additional argument was raised in the present case that the post-mortem report has not been proved by examining the doctor namely Dr. R.K.Wadhwa, who has conducted the post-mortem examination on the dead body of the deceased. Reliance is placed upon a Division Bench judgment of this court reported as Pal Singh Vs. The State of Punjab 1995 Crl. L.J. 3596 and upon Division Bench judgment of Andhra Pradesh High Court reported as Suntru Somi Reddy Vs. State of A.P. 2009 Cr.L.J. 2102 The said judgment no doubt, prima facie, supports the argument raised by the learned counsel for the accused, but we find that the said judgment is not helpful to the accused for more than one reason. Firstly, in response to the question of post mortem examination and other related issues in the statement under Section 313 of the Code, the answer of the accused is "I do not know". The prosecution witnesses including father of the girl have clearly deposed about the recovery of dead body of Manju and that the post-mortem examination was conducted. PW 13, Constable Ravinder Kumar has deposed that after post mortem examination, doctor has handed over two sealed parcels including inquest report. PW 20 Inspector Satyavir Singh has proved an application moved for the post mortem examination and that ASI Ram Kishan, since indisposed on account of paralysis, has taken into possession of the clothes of the deceased. Both of these witnesses were not cross examined at all. The post-mortem report is relevant to prove, whether the death is homicidal or suicidal. The death is Crl. Appeal No.814-DBA of 2003 23 not suicidal as all the witnesses have deposed so. No cross examination has been conducted in respect of manner of death. The fact that it was an unnatural death is proved on record. Therefore, the non-examination of the doctor, who conducted the post-mortem, is not material.
Secondly, under Section 294, where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding without proof of the signature of the person by whom it is purported to be signed. The judgment in Pal Singh's case (supra) is, in fact, based upon earlier judgment of Bombay High Court reported as Ganpat Raoji Suryavanshi Vs. The State of Maharashtra 1980 Crl. L.J. 853, and of Allahabad High Court reported as Jagdeo Singh Vs. State 1979 Criminal Law Journal 236.
The judgment in Ganpat Raoji Suryavanshi's case (supra) has been overruled by later Full Bench judgment of Bombay High Court in Shaikh Farid Hussinsab Vs. The State of Maharashtra 1983 Crl.L.J. 487. Similarly, the judgment in Jagdeo Singh's case (supra) has been overruled by the Larger Bench of Allahabad High Court in Saddiq and others Vs. State 1981 Crl. L. J. 379. In Saddiq's case (supra), the Full Bench of Allahabad High Court while overruling Jagdeo Singh's case (supra) has held that if the genuineness of the post-mortem report filed by the prosecution under sub-section 1 of Section 294 of the Code is not disputed by the accused, it may be read as substantive evidence under Section (3) of Section 294 of the Code. In Shaikh Farid Hussinsab's case (supra), the Full Bench of Bombay High Court noticed that though in civil cases mode of proof can be waived by the person against whom it is sought to be used, but no such waiver from the accused was permissible in criminal cases till Crl. Appeal No.814-DBA of 2003 24 the enactment of the present Code of Criminal Procedure in 1973. The accused was supposed to be a silent spectator at the trial, being under no obligation to open his mouth till the occasion to record his statement under Section 342 (present Section 313) of the Code arose. Even then he was not bound to answer and explain the circumstances put to him as being appearing against him. Reference was made to Chainchal Singh Vs. Emperor (AIR 1946 PC 1). It was noticed that Section 294 of the Code has been introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The Court noticed that post- mortem report is also a document as any other document. The primary evidence of such a document is the report itself. It is a contemporaneous record, prepared in the prescribed form, of what the doctor has noticed in the course of post-mortem of the dead body, while investigating the cause of death. It being relevant, it can be proved by producing the same. The Court considered that two different rules of evidence having different implications arise in respect of the post-mortem reports. One is as a piece of evidence as substantive or corroborative in terms of its probative value and the other that it is not evidence for want of proof of its authenticity. It was found that the evidence of post-mortem notes according to one rule has corroborative value in relation to the substantive evidence of its author i.e. the doctor at the trial. Post-mortem notes are in the nature of previous statements admissible under Section 157 of the Evidence Act. On the other hand, the authenticity of a document is altogether a different factor unconnected with its probative value. The authenticity of a document is required to be established by the mode of proof prescribed under Sections 67 to 71 of the Evidence Act. It was held to the following effect :
Crl. Appeal No.814-DBA of 2003 25
"14. ......Now, S.294 is purposefully introduced in the present Code to facilitate such waiver even in criminal cases. It has the virtual effect of making Sections 67 to 71 of the Evidence Act inapplicable. The author's evidence thus is now dispensable thereunder. Report becomes both relevant and authentic evidence of its contents without the proof of its authenticity by the author or anybody else, by force of S.294 on its conditions being complied with. S.510 of the repealed Code (corresponding to S.293 of the present Code) already contemplates dispensation of the proof of some other documents authenticity of which depends not so much on oral evidence of the author as on the efficacy of the mechanical process through which the concerned data is collected. S.294 of the Code makes the same rule applicable when the authenticity of the document is not disputed. The documents covered by both these sections stand on par and are receivable in evidence without anything more. The post-mortem report also is receivable in evidence without the doctor's evidence and can still furnish corroborative evidence to support other evidence in the case. ..... "
The Full Bench of Rajasthan High Court in a judgment reported as Shabbir Mohammad Vs. State of Rajasthan 1996 Crl. L. J. 2015 has considered the scope of Section 294 of the Code of Criminal Procedure. It was held to the following effect :
"8. The plain reading of Section 294 of the Code shows that on the genuineness of a document in question being admitted by the party concerned, it can be read in evidence for the purposes of deciding the issue pending before the Court in any inquiry, trial or other proceedings. It appears to us that Section 294 of the Code was introduced to dispense with the avoidable waste of time and to facilitate the removal of obstruction in the speedy trial and is based on the rule of evidence contained in Section 58 of the Evidence Act that the facts admitted need not Crl. Appeal No.814-DBA of 2003 26 be proved. If it is held that such a document can be used in evidence only for the purposes mentioned in Sections 145, 157 and 159 of the Evidence Act, as has been held by a Division Bench of this Court in Mahaveer's case (supra), it would amount to reading something in the Section which is not written therein and the very object of the Section itself would be frustrated."
Later another full Bench judgment of Karnataka High Court in a case reported as Boraiah @ Shekar Vs. State 2003 Crl. L. J. 1031 has also considered the scope of Section 294 of the Code of Criminal Procedure and held to the following effect :
""10. The object of Section 294 of Cr.P.C. is to accelerate the pace of trial by avoiding the time being wasted in examining the signatory to the document filed by either of the parties to prove his signature and correctness of its documents, if its genuineness is not disputed. This section is intended to dispense with the formal proof of certain documents. It is obviously intended to slim the proceedings by dispensing with elaborate and sometimes long drawn procedure of examining the concerned person when the genuineness of document is not in dispute. Sub-section (3) providing for such dispensation is the main provision, sub-sections (1) and (2) being merely procedural. Such dispensing of proof is restricted only to such documents of which genuineness is not disputed when called upon to do so under sub-section (1) of Section 294 of Cr.P.C.. The refrain from such procedure is not invariable and the Court is empowered to examine depending upon the circumstances and expediency. This is also in consonance with the provisions of Section 58 of the Evidence Act. ....."
11. ....... The intention of the Legislature in introducing this provision under Section 294 of Cr. P.C. is to eliminate the formal procedure of proving the mere signature on such documents in trial enquiry or any other proceedings which used Crl. Appeal No.814-DBA of 2003 27 to take sufficient time previously as there was no such provision in the earlier Cr. P.C. It has to be pointed out that this provision dispenses with the formal proof of a document when the genuineness of which is not disputed by the other side. Section 294 dispenses proof of every document when it becomes formal on its genuineness not being disputed. A Post Mortem report or any other document of which genuineness is not disputed by accused can be read as substantive evidence without formal proof. Even if the genuineness of the PM report is not disputed and the report is read as substantive evidence, it may still be necessary to examine the doctor concerned to clarify his opinion in the reports or to obtain his opinion on medical questions. This section dispenses with proof of every document when it becomes formal on its genuineness not being disputed. Sub-section (3) of Section 294 of Cr. P.C. covers Post Mortem reports and every other document of which genuineness is not disputed. Thus such documents can be read in evidence as genuine without the formal proof. ...... "
Hon'ble Supreme Court in Akhtar v. State of Uttaranchal, (2009) 13 SCC 722 while considering the admissibility of post mortem report without examining Doctor has observed as under:
"21. It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section (3) of Section 294 CrPC. Accordingly, the post-mortem report, if its genuineness Crl. Appeal No.814-DBA of 2003 28 is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined."
The overruled decisions in Ganpat Raoji Suryavanshi's and Jagdeo Singh's cases (supra) were made basis by the Division Bench of this Court in Pal Singh's case (supra) to return a finding that the post- mortem report is not admissible in evidence without examining the doctor, who conducted such post-mortem. It was not brought to the notice of the Court that the judgments relied upon stand overruled. We find that in view of the Larger Bench judgments of four High Courts and the decision of Hon'ble Supreme Court, in terms of Section 294 of the Code, a document on satisfaction of the conditions mentioned in sub-section (3) of Section 294 of the Code can be read as substantive evidence.
In the present case, the accused was not called upon to admit the genuineness of the post-mortem report. But the fact remains that the accused has not disputed the correctness of the post-mortem in his statement under Section 313 of the Code. Still further, in the present case the post- mortem report is corroborative of the fact of act of commission of rape and murder. The other evidence on record supports the finding of commission of rape and murder. Therefore, even in the absence of corroborative medical evidence, it stands proved by the prosecution that it is the accused, who committed crime. Such proof is further stands strengthened by the confessional statement of the accused.
In view of the above, we find no reason to differ with the findings recorded by the learned trial Court, as the prosecution has Crl. Appeal No.814-DBA of 2003 29 successfully proved the commission of crime by the accused. Accordingly, we do not find any merit in the appeal filed by the accused.
Re: Criminal Appeal No.82-DB of 2004 (FIR No. 650 dated 1.10.1997 U/S 302,376,377,201 IPC PS City Bahadurgarh) The prosecution case was set in motion on the statement of Ramesh Kumar son of Mangat Ram, who had a daughter named Komal aged about 6 years. On 8.10.1998, the complainant was admitted in Vimal Hospital, Nangloi, Delhi, whereas his wife Archana and mother Bhagwati and the children i.e. two daughters and a son wee present in the house. At about 8.00 PM, Komal left the house saying that she was going to see the Ramlila which was being staged in the nearby park. When she did not turn up, the elder daughter was sent for calling Komal to the house, but on return she told her mother that Komal was not available. On such information, all the members of the family set out in search of the girl. They had heard about the kidnapping and murder of minor girls in the city and so they had become panicky and informed the complainant in the hospital that Komal was missing from the house and was not available. The complainant came to his house. He accompanied by Sube Ram and Ramkishan set out in search of the girl and when they reached near a Dharamshala situated near the village pond of Village Parnala, they noticed a dead body of minor girl half buried under the earth was lying in Dharamshala. It was identified as that of Komal. The statement Ex.PC of the complainant was recorded by SI Raghbir Singh. SI Raghbir Singh had made his endorsement Ex.PC/1 on such statement and sent the same to the Police Station for registration of a case. On receipt of ruqa Ex.PC/1, an FIR Ex.PG was recorded by SI Crl. Appeal No.814-DBA of 2003 30 Rajender Singh, P.S.City Bahadurgrh. Thereafter, SI Raghbir Singh accompanied the complainant to the said Dharamshala and found the dead body of Komal lying in that deserted room on the bank of the pond. Inquest report Ex.PM was prepared. The statements of Subhash and Raj Kishore were recorded in those inquest proceedings. The frock and slippers lying near the dead body of the girl were taken into possession vide recovery memo Ex.PN and converted into parcels duly sealed. The dead body of Komal was sent for post-mortem examination through Constable Raj Kishan. The doctor after conducting post-mortem examination on the dead body of Komal handed over Constable Raj Kishan sealed parcels of vaginal swab, rectal swab and the clothes of the deceased, which were taken into possession by SI Raghbir Singh vide recovery memo Ex.PJ.
PW-20 Dr. Aruna Sangwan has deposed that she alongwith Dr. Murai Lal conducted the post-mortem on the dead body of deceased and found that the girl was wearing white baniyan smeared with soil, face and neck smeared with soil, eyes were closed, mouth was opened and was gagged with brownish colour underwear. There was bleeding per vagina. There was contusion of 13 x 5 cm over anterior medial aspect of left thigh; labia majora was contused on both sides with bleeding from vagina; hymen and posterior commissioure with fourchedde were ruptured; recetal mascusa was lacerated all around with tear postriorly; there was contusion over lower and upper lip; and multiple contusion on right side of face.
To prove the commission of crime against the accused, the prosecution has also examined PW-2 Shri Harnam Singh Thakur, the learned judicial Magistrate, who recorded the confessional statement of the accused; PW -3 Dr. D.S.Rana, who medico-legally examined the accused; Crl. Appeal No.814-DBA of 2003 31 and PW-8 Ram Kishore. The prosecution has also examined numerous other witnesses to complete the chain of circumstances. After appreciating the entire evidence the learned trial Court convicted the accused and sentenced him to undergo life imprisonment, as stated above. The accused has not filed any appeal. The state is in appeal seeking enhancement of punishment to death.
We have considered the facts on record. Since, the conviction is based on confessional statement of the accused, which has been proved on record and has been admissible in earlier judgment as well in the earlier part of this judgment; therefore, there is no reason to upset the finding of conviction recorded by the learned trial court.
Now coming to the sentence to be imposed upon the accused in these cases arising of three First information reports, we may notice that the out of three victims, two have lost their life to the lust and perversity of the accused. The third victim is fortunate not to loose her life but one can understand the trauma of violation of her person in young age of 7 years. The accused has been found guilty of kidnapping minor girls of tender age and then subjecting them to rape not only in the present cases, but in eight other earlier cases, therefore, we find that there exist aggravating circumstances, which makes it a rarest of rare case for imposition of death penalty. The accused is repeatedly involved in most heinous crimes of kidnapping, rape and murder of small girls to satisfy his lust. From the medical evidence, it has been found that the accused was not suffering from any psychotic mental disorder. Therefore, there is no mitigating circumstance not to award death sentence to such a convict. But a Division Bench of this Court in Criminal Appeal No.235-DB of 2005, has sentenced Crl. Appeal No.814-DBA of 2003 32 the accused to undergo imprisonment for a period of 20 years, without any remission. Therefore, we do not sentence him to death but order that the accused - Satish shall undergo life imprisonment for a period of twenty years without remission in each of the three cases. With the said sentence, we dismiss Criminal Appeal No.651-DB of 2003 filed by accused Satish but accept the appeals filed by State partly in the manner of sentence as mentioned above.
(HEMANT GUPTA)
JUDGE
May 27, 2010 (JASWANT SINGH)
Vimal JUDGE