Allahabad High Court
Tufail Ansari vs State Of U.P. on 20 February, 2015
Bench: Amar Saran, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- CAPITAL CASES No. - 929 of 2014 Appellant :- Tufail Ansari Respondent :- State Of U.P. Counsel for Appellant :- M.J. Akhtar,Sriprakash Srivastava,V.M. Zaidi Counsel for Respondent :- Govt. Advocate Hon'ble Amar Saran,J.
Hon'ble Vipin Sinha,J.
(Delivered by Hon'ble Amar Saran, J).
We have heard Sri V.M. Zaidi, learned counsel for the appellant and Sri Akhilesh Singh, learned Government Advocate, assisted by Sri Rajiv Gupta, learned A.G.A for the State.
This capital appeal arises from the judgement of the District and Sessions Judge, Kushi Nagar dated 6.2.2014, convicting and sentencing the appellant Tufail Ansari to death under section 302/34 I.P.C and fine of Rs. 20,000/. Under section 376 I.P.C, the appellant was convicted to ten years RI and awarded a fine of Rs. 20,000/ and under section 201 I.P.C, the appellant was convicted to seven years RI and fine of Rs. 10,000/. For not depositing the fine under section 302 I.P.C, the appellant has to undergo further simple imprisonment for five years. Likewise, in default of payment of fine, under section 376 IPC, the appellant has to undergo five years SI and in default of fine under section 201 IPC, he has to undergo two years simple imprisonment.
The prosecution case as disclosed in the FIR, lodged by informant Ramesh Kumar Jaiswal, father of the seven year old deceased girl child Anshu was that on 12.1.2010 at about 3.00 p.m, the appellant Tufail Ansari enticed away the deceased on his motorcycle. When the informant visited Tufail's house, then Tufail and his father stated that they did not know the whereabouts of the girl and chased him away. After that the informant and others kept searching for Anshu. Then Suresh Kumar Jaiswal, resident of village Pipra Jarampur met them and informed them that he had seen the deceased girl with the appellant on the 'Kachcha' road to the north of the Veterinary Hospital in front of the 'brick-kiln' going along in the direction of the bushes. The informant also claimed to have knowledge that his daughter had been murdered by Tufail Ansari. Ramesh Kumar Jaiswal, the informant, resident of Hydel Colony Kuberasthan lodged this report on 12.1.2010 at P.S. Kuberasthan at 9.15 p.m. Constable Munna Singh registered the FIR, under section 302/201 I.P.C and prepared the check FIR, and made the necessary G.D entry. PW-6 SI Jeet Narain Singh, who was present at the police station made the necessary entries in the case diary and recorded the statements of the informant and scribe etc and identified the documents prepared by constable Moharrir Munna Singh.
On 13.1.2010 SI Jeet Narain Singh arrested the appellant and recorded his statement. On the pointing out of the appellant, the corpse of Km. Anshu was recovered from the bushes near the raised surface (bheeta) on the East of the Bhoop Sagar water tank and its recovery memo (Ext. Ka 7) was prepared, which bore the signatures of the appellant Tufail, the informant and witnesses and SI Jeet Narain Singh. He also prepared the site plan (Ext. Ka 9) and recorded the statements of the persons, who were present there as Samai Sakshi (hearsay evidence). The G.D. entry of the return of SI Jeet Narain Singh along with other constables on 13.1.2010 at 2.15 a.m along with the appellant Tufail at the police station is exhibited as Ext. Ka 10. According to this G.D. entry, the appellant was aged about 25 years. The appellant had received a few injuries at the time of his arrest at about 00.45 hours but he was not complaining of misbehavior by the police at the time of being placed in the police station lock up. The father of the appellant was present at the time of arrest. The appellant is said to have made a confessional statement before the police. He claims to have taken the deceased to the bushes near the "Bhoop Sagar Pokhara" and tried to commit rape on the deceased and to have strangulated the deceased with her own inner clothes and thereafter to have hidden the cadaver in the bushes. As the appellant was prepared to show the place, SI Jeet Narain Singh accompanied by police and other witnesses proceeded to the said place, from where, in the bushes near the Bheeta, the concealed dead body of the deceased Anshu was taken out on the pointing out of the appellant at about 1.40 a.m. The recovery memo of the dead body was marked as Ext. Ka-7. He also conducted the inquest on the body of Km. Anshu on 13.1.2010 at 7.00 a.m which was concluded at 8.30 a.m. vide Ext. Ka-2A. The recovery memo shows that the body was found lying in the bushes three paces from the Bankat tree, which was 18 paces from the pathway. The mouth of the deceased was stuffed with clothes and the neck had been strangulated with her inner clothes. The deceased was wearing a green underwear which showed the presence of some liquid like substance. She was wearing a muddy coloured T shirt and a sweater with red checks. She was also wearing small yellow earrings in her ears. In the opinion of the witnesses, the cause of death was due to strangulation. After preparing the photo lash (Ext. Ka-11), letter for postmortem, he sealed the body and sent it for postmortem examination.
PW-5 Dr. A.K. Singh, conducted the autopsy on the deceased Anshu aged 7 years on 13.1.2010 at 3.00 p.m at the Post-mortem house, at Kasya. The body was of an average built female child. Her mouth was open, both eyes were closed. Rigor mortis was present on both upper and lower limbs. Postmortem staining was present over dependent parts of the body.
The following ante-mortem injuries were seen:
1.Abrasion 5 cm x 4 cm over dorsum of right hand covering right index, middle and ring fingers. Blood clot was present.
2.Contusion 12 cm x 5 cm over front of neck covering both sides of neck, just above supra sternal notch.
3.Abrasion 1 cm x .5 cm over left side of labia majora of vagina.
4.Swelling and abrasion 1 cm x 1 cm over labia minora.
5.Hymen ruptured.
6.Contusion 4 cm x 3 cm over medial aspect of right thinh below inguinal region 7 cm below the right illiac crest.
7.Contusion 3 cm x 3 cm over medial aspect of right thigh 7.5 cm below illiac crest.
8.Abrasion 1 cm x 1 cm over right side of neck 2.5 cm below to the right angle of mandible.
On internal examination, he found fracture of hyoid bone present. Subcutaneous bleeding was present. Brain, Pleura, Larynx, Trachea and both lungs were congested. Left chamber of heart was empty and right chamber was full of blood. The stomach contained undigested food and small intestine contained semi-digested food with gases. Large intestine contained faecal matter with gases. Gall bladder weighed 800 grams, and was half full.
The death had taken place one day earlier and the cause of death was due to asphyxia as a result of ante-mortem injuries. There was evidence of attempt at rape but for confirmation of the same, the slide of vaginal smear was handed over to the Constable for pathological examination.
PW-4 Dr. Abdul Kalam, Pathologist at District Hospital, Kushi Nagar examined the smear slide of the deceased. He found epithelial cells, plenty of RBC and polymorphs, (but no spermatozoa) and he submitted his report on 18.1.2010 (Ext. Ka-3), opining that the vaginal smear showed signs of haemorrhage. According to the Pathologist, the presence of R.B.Cs showed that the injury which had been caused might have been the result of penetration of the male organ.
PW-7 SI Mohan Ram assumed the investigation of this case on 15.1.2010. He prepared paper no.3 of the case diary, in which he recorded the statement of Suresh Kumar Jaiswal. He also recorded the statement of wife of of informant Smt. Babli Jaiswal, mother of the deceased and Km. Saumya, younger sister of the deceased on 17.1.2010. He perused the autopsy report and pathologist report which confirmed that rape has been committed on the deceased and he added section 376 I.P.C. He also sent the corpse of the deceased for examination and prepared the documents and sent it on 5.2.2010 for examination by the Forensic Science Laboratory, Varanasi. After completing the investigation, the I.O. submitted a charge sheet under sections 302, 201 and 376 I.P.C against the appellant (Ext. Ka 17).
Apart from the aforementioned formal witnesses, the prosecution has also examined three witnesses of fact; they are PW-1 Ramesh Kumar Jaiswal, informant, PW-2 Suresh Kumar Jaiswal and PW-3 Smt. Babli Jaiswal, mother of the deceased.
PW-1 Ramesh Kumar Jaiswal deposed that on 12.1.2010 at about 3.00 p.m the appellant, a resident of Kuberasthan had enticed away his seven year old daughter Km. Anshu and taken her away on his motor cycle. At that time the witness was not present at his house. When he returned home, then he learnt from his wife that the appellant had taken away Anshu. He searched for his daughter everywhere in the Bazaar but he did not find her. During the course of the search for Anshu, PW-2 Suresh Kumar Jaiswal, resident of Piprai Rampur met him, and informed him that he had seen the appellant taking away Km. Anshu on his motor cycle near the Brick kiln of Om Prakash Gupta and then he had gone home. The wife of the informant had visited the house of Tufail but she was scolded by Tufail's father and was asked to go home. Even after search when he still could not find his daughter, then he became suspicious that Tufail had murdered his daughter. He then submitted a report at the police station (Ext. Ka 1). After registration of the case, the Investigating Officer began to search for Tufail, whom he met in his house. On interrogation, Tufail disclosed that he had taken the deceased on his motorcycle and has committed rape on her in the bushes near Dhoop Sagar Pokhara and that he had murdered her by throttling her neck because he did not want Anshu to disclose these facts to anyone. The police had then taken Tufail to the bushes near Dhoop Sagar Pokhara at 2.30- 3.00 a.m. The inquest of the dead body was conducted the next morning in the presence of the informant and other villagers. The appellant has shown the place of incident to the Investigating Officer, who had also recorded his statement regarding the incident.
PW-2 Suresh Kumar Jaiswal has deposed that on 12.1.2010 after closing his shop at Kuberasthan at 4-5 p.m, he was proceeding to his house in village Pipra Jarampur. Near the Dhoop Sagar Pokhara, he saw the appellant coming away from the side of village Pipra Jarampur along Kumari Anshu on his motorcycle. The appellant stopped his motorcycle near Om Prakash's brick kiln and was proceeding towards the bushes. He had also given a statement to the Investigating Officer.
PW-3 Smt. Babli Jaiswal, wife of informant and mother of deceased has deposed that on 12.1.2010 at about 3.00 p.m, she had gone to her neighbour's house in Kuberasthan along with her two daughters. She had started knitting a sweater there while her girls were playing in a house at the Hydel Colony. After some time, her elder daughter Km. Saumya had come and told her that the appellant had taken away Anshu, aged 7 years, on his motorcycle. Then she had come out side to stop Anshu. Saumya rushed out side and tried to stop Anshu from going with Tufail and when Saumya tried to stop Anshu then Tufail caught Anshu's arms and put her on his motorcycle and had taken her away. When she came out, she saw that the appellant was taking away Anshu in the direction of the Temple. After half an hour, the appellant had returned alone and was roaming around at the market. She asked Tufail as to the whereabouts of Anshu, but he told her that he had left her near the temple. He was not giving any proper answers or he was abstaining from giving any replies. Then Tufail's relations had taken him home. Thereafter Anshu's father had gone to the police station. After that the police vehicle had arrived and after catching hold of Tufail, the police searched for Anshu the whole night. Then on the pointing out of Tufail, the corpse of Anshu was found. The I.O had recorded her statement.
Sri V.M. Zaidi, learned counsel for the appellant, (who has not filed written arguments), argued that there was no reliable evidence for connecting the appellant with this crime. The FIR was registered after the dead body had been found, hence the FIR was lodged under section 302/201 I.P.C and not under section 364 I.P.C which would not have been the case if the body had not been found and the deceased had disappeared. According to the witnesses, the police appears to have reached at about 8.00 p.m or earlier. The body was recovered, then the recovery was said to have been made on the pointing out of the appellant. No memo of arrest was prepared and there was no proper medical examination of the appellant in compliance of section 53 Cr.P.C. There was no corroboration of the rape charge. No independent witness of recovery has been produced. Also other persons such as brick-kiln workers, or the temple priest or witnesses who were present at the time of recovery were not produced and examined. The last seen evidence of PW-2 Suresh Kumar Jaisal, who was a close relation of the informant was not reliable. He was a chance witness as he claims to be coming in that direction after closing his shop. He also did not make any inquiry as to why the girl was going with the appellant. Also he gave out this information on the next day. He also argued that there were illicit relations between Smt. Babli Jaiswal and Suresh Kumar Jaiswal and that Tufail had knowledge of this fact, hence Babli and Suresh had murdered Babli's daughter and falsely implicated the appellant for this crime. Saumya, sister of the deceased was not produced. The FIR appears to be ante-timed and the report was lodged after information was given on telephone to the police, who arrived between 7 or 8 p.m and then foisted the case on the appellant. The conduct of the accused of having returned back home and not absconding was suggestive of his innocence. The appellant has been falsely implicated in this case because there had been an agitation by the Hindu Vahini and only to show the case as solved, the appellant was falsely implicated for this crime. He also argued that the chain of circumstance were not complete and lastly, he submitted that this was not the rarest of rare case, where a death sentence should have been awarded.
Learned Government Advocate (who has filed written arguments) on the other hand argued that there was evidence of last seen given by PW-2 Suresh Kumar Jaiswal which was wholly reliable. The allegations of illicit relations between Babli and Suresh Kumar Jaiswal about which the appellant is alleged to have information, was a completely far fetched reason for Babli and Suresh to murder Babli's seven year old daughter, only for implicating Tufail in this crime, who might have otherwise exposed them. Also no evidence of the alleged illicit relations of Suresh and Babli has been adduced. The dead body of the deceased was recovered only on the pointing out of the appellant after his arrest at 00.45 a.m, i.e. at 1.40 a.m. Even if PW-1 had stated that the arrest had taken place at 9.00 p.m, it would not affect the quality of the evidence relating to the discovery, as the body of the deceased could not have been found in the the winter night of 12th January, unless the appellant had actually shown the body to the police and witnesses. As the recovery had taken place late in the night, there was little chance of other village witnesses being present. However, one villager Anup Krishna was present, who has been shown as a signatory in the recovery memo along with the informant and the appellant, although he has not been produced, but there is no need to multiply witnesses of recovery, and if private witnesses do not appear, there is no reason to discard the evidence of the police witnesses of recovery The Pathologist as well as the doctor conducting the autopsy have clearly affirmed the rape charge and that the injuries to the deceased could have been caused due to penetration of the male organ because the hymen was ruptured. Even if it was assumed that the police had arrived a little earlier, that would not mitigate the value of the prosecution evidence as the corpse could only have been found on the pointing out of the appellant during the night as it was hidden in the bushes, at the side of the raised platform (bhita) and the evidence of discovery under section 27 of the Evidence Act was available against the appellant. The mere averment in the FIR that the informant had information that his daughter had been murdered, and that no case under section 364 IPC was registered at the time of the FIR, could not give rise to an inference that the body had been already recovered, and the same was then planted on the appellant. The statement that the informant had knowledge that his daughter had been murdered was only a loose expression, and only implied that the informant had drawn an inference that the appellant who had taken away his daughter might have murdered her as she could not be found inspite of search in all nearby areas, and Tufail was giving no proper answer regarding the whereabouts of his daughter, and by using such an expression that probably Tufail had murdered his daughter, the informant might have hoped that the police would get more active and pick up Tufail and interrogate him for locating the whereabouts of his daughter.
ANALYSIS OF EVIDENCE:
The crucial issue which arises for consideration in this case is as to how the dead body of the deceased was discovered; whether police or the witnesses had come across the body on their own or whether the same could only have been discovered on the pointing out by the appellant, after he was arrested.
One important aspect of this case is that not even the slightest suggestion has been given to the witnesses of fact or to the formal witnesses including the I.O PW-6 Jeet Narain Singh that the body was recovered earlier and thereafter it had been falsely claimed that the recovery had been made on the pointing out of the appellant. When the FIR was lodged at 9.15 p.m on 12.1.2010, although it is mentioned that the deceased had probably been murdered but the body had not been discovered. However, the fact that the appellant and the deceased had been seen going on a Kachcha road towards the bushes on the motorcycle along with the deceased had been seen by PW-2 Suresh Kumar Jaiswal. We also find that it was the cold night of 13.1.2010 when the said body was discovered in the bushes in the night time itself, and this was not possible if the appellant had not himself pointed out the location of the dead body.
There is evidence under section 27 of the Evidence Act againsts SI PW-6 Jeet Narain Singh and PW-1 Ramesh Kumar Jaiswal, informant, who are witnesses of discovery of the body as is mentioned in Ext. Ka-7. Also the presence of Anoop Krishna, another independent witness of recovery has been shown in the recovery memo as being present at the spot who has signed the recovery memo although he has not been examined, but in the cold night when the body was discovered, only close family members of the deceased i.e. her father and one or two other persons might have accompanied the police for searching the dead body along with the appellant and the absence of other witnesses of recovery is of no significance, and there is no reason to doubt the reliability of the evidence of the investigating officer on the point of recovery as it is corroborated on the touchstone of probabilities.
It has thus been laid laid down in Rameshbhai Mohanbhai Koli v. State of Gujarat, (2011) 11 SCC 111, at paragraphs 32 to 35, where the case law on this point have been considered:
" 32. An argument was advanced about reliance based on the evidence of investigating officer. This Court in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 has held that courts of law have to judge the evidence before them by applying the well-recognised test of basic human probabilities.
"3. ? prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case." (Vide State of Kerala v. M.M. Mathew, (1978) 4 SCC 65 at SCC p. 68, para 3.)
33. In Modan Singh v. State of Rajasthan, (1978) 4 SCC 435 it was observed (at SCC p. 438, para 9) that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was expressed in Mohd. Aslam v. State of Maharashtra, (2001) 9 SCC 362.
34. In Anter Singh v. State of Rajasthan, (2004) 10 SCC 657, it was further held that: (SCC p. 661, para 10) "10. ? even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated."
35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)"
35.It is also very difficult to imagine that the police and the witnesses had already found the dead body and deliberately not mentioned this fact in the FIR and then later on arrested the appellant and foisted the discovery of the dead body on the pointing out by the appellant so as to create such evidence under section 27 of the Evidence Act. This suggestion was so implausible that no suggestion of such a plant of the already discovered corpse on the appellant has been made to any of the witnesses.
We also think that there was no good reason for the false implication of the appellant only because the Hindu Vahini had raised a cry that such a heinous murder had been committed and someone should be nominated for this crime. We fail to understand why only the appellant and none else had been nominated for committing this crime, as admittedly there was no animosity of the appellant with the police, and the appellant had no previous criminal history, hence the police would have no reason to foist this case on the appellant unless he was actually involved in the crime.
The other half-hearted suggestion given by the appellant that he was aware of the illicit relations between PW 3 Smt. Babli and witness PW-2 Suresh Kumar Jaiswal which they apprehended he would expose, and hence they had murdered the seven year old daughter of Smt. Babli and then foisted the case on this appellant is indeed too far fetched to swallow by any criminal court as has rightly been pointed out by the learned Government Advocate. This suggestion was not given to any other witness. No person was examined in defence by the appellant for confirming this suggestion and we think that it is completely against the order of nature and not at all a plausible human normal conduct for a mother to kill her own seven year old daughter with the aid of her alleged paramour only to implicate a third person, who it is suggested might have seen them in a compromising position and might have exposed them in the distant future (though these facts are only speculated, and not established). Also the post mortem reports gives an indication of rape of the victim child, which would again negate the outlandish defence suggestion, of murder by the mother of the deceased and PW 2 Suresh. We find this suggestion, therefore, completely devoid of any merit, and it has only to be stated to be rejected.
The last seen evidence reflected in the evidence of PW-2 Suresh Kumar Jaiswal that he had seen Anshu going along with Tufail on the motorcycle by the Kachcha Road in front of Om Prakash's brick-kiln near the Veterinary Hospital, was mentioned in the FIR, can be considered to be reliable, as it was subsequently corroborated by the discovery of the dead body in the bushes in the middle of the night on the pointing out by the appellant. Simply because the informant Ramesh Kumar Jaiswal, father of the deceased Anshu was a relation of Suresh, and merely because some doubts have been raised as to whether Ramesh Kumar Jaiswal was earlier a tenant in Suresh's house could not provide reason for discarding his testimony, specially when as we have observed above that the suggestion given to Suresh Kumar Jaiswal and to Smt. Babli Mishra that they had illicit relations, being the reason for murdering Babli's daughter Anshu by Babli and Suresh and foisting the case on the appellant was wholly devoid of any substance.
Suresh Kumar Jaiswal's not asking Tufail as to why he was taking Anshu on his motorcycle is also not an important circumstance for discarding Suresh's testimony because this witness has stated that the appellant Tufail used to visit the informant's house sometimes and was familiar with Anshu and hence this witness would not have any reason to suspect at that stage that the appellant would try and commit the rape of Anshu and then would strangulate her.
No doubt, at one point in his evidence, Suresh Kumar Jaiswal stated that he had come back on the next day but this statement might have been made under some confusion as in his cross examination, he clarified that on the date of incident, he had told the informant that when he, Suresh Kumar Jaiswal was coming from his village Pipra Jaranpur at about 5.15 p.m. he had seen the deceased going along with the appellant Tufail, and this fact was mentioned in the FIR itself. This fact that the appellant used to play with the deceased Anshu at her house also as Tufail had earlier not made any wrong advances towards Anshu had been admitted by PW-3 Smt. Babli in her cross examination. That may have been the reason why Suresh had not questioned Tufail as to where he was taking the girl.
The non-production of Saumya in court, who was said to be only about 8 years in age at the time of incident and who claimed to have seen Anshu going along with the appellant Tufail on his motorcycle and who had disclosed this fact to her mother is also not very important as the child may have had little understanding and may have not been able to appear in court to give evidence and to withstand a gruelling cross examination by a seasoned defence lawyer. Also although convictions are recorded in cases on the sole testimony of child witnesses, if the Court finds the child as able to understand the need for speaking the truth and to depose rationally and considers her testimony to be reliable and trustworthy, but the testimonies of child witnesses are usually assailed for being the product of tutoring. There is also no requirement in law to multiply witnesses, if the testimony of the witnesses of fact who are examined are found to be implicitly reliable or are corroborated by the circumstances of the case. Section 134 of the Evidence Act only speaks of the quality and not the quantity of witnesses, and there is no legal requirement requiring the production of a particular number of witnesses. The basic test is whether the evidence is cogent, credible and reliable and trustworthy and that the non-examination of some material witnesses ceases to be significant, if credible testimony which inspires confidence of witnesses who have been examined is available, and there is no need for duplication of witnesses, and no adverse inference can be drawn from the non-production of a few witnesses. This has been emphasized in Namdeo v. State of Maharashtra, (2007) 14 SCC 150, Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91, Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, Dahari v. State of U.P., (2012) 10 SCC 265, Harivadan Babubhai Patel v. State of Gujarat, (2013) 7 SCC 45 and more recently in Manjit Singh v. State of Punjab, (2013) 12 SCC 746 where the case law on the point has been considered in extenso.
The contention that PW-3 Smt. Babli Jaiswal has admitted in her cross examination that the police had come to their house at about 8.00 p.m, and that she was unsure when she had left for the police station and that PW-1 Ramesh Kumar Jaiswal, informant had stated that he had reached the police station at about 7.00 p.m or that the appellant Tufail was arrested at about 9.00 p.m. Even if there were some conflicts in the timings, it only suggests that the rural witnesses were a little confused about the timings of the incident or the time when the police had taken the appellant Tufail at about 2.00 a.m to get the body recovered. Even if there are certain minor discrepancies in the timings and conduct of the investigation, as the basic structure of the prosecution evidence is intact in this case, on the basis of the factum of discovery of the dead body in the middle of the night on the pointing out of the appellant, which was admissible under section 27 of the Evidence Act and the last seen evidence against the appellant by PW-2 Suresh is also intact, little reason exist for not relying on these crucial circumstances which are sufficient to establish the complicity of the appellant in this offence.
It has appositely been observed in Satish Narain Savant v. State of Goa, (2011) 2 SCC 110, cited by the learned G.A. in paragraphs 22 to 27 that the mere arrival of the police and even the initiation of a preliminary investigation or inquiry by the police before lodging of the FIR cannot vitiate the eventual proper investigation by the police or impair the value of the testimony of the evidence adduced in Court, if it is found to be reliable.
Likewise we also think that some slight delays and minor infirmities and discrepancies in the prosecution evidence, can provide no ground for discarding the prosecution case in its entirety. It is rightly pointed out in Nepal Singh v. State of U.P., 2014(2) JIC 575, and State of U.P. v Krishna Master, (2010) 12 SCC 324 that for every minor discrepancy or slight embellishment in the prosecution version, which does not touch the core of the prosecution case, the entire prosecution version cannot be discarded, if the testimonies of the witnesses are found to be worthy of reliance and have a ring of truth in them. The presence of some discrepancies and minor contradictions in the testimonies of rustic witnesses as a result of prolonged cross-examinations is completely natural and only to be expected.
For all these reasons we are satisfied that the prosecution has successfully established its case against the appellant and the trial Court has committed no error in recording a finding of conviction against the appellant.
The Approriate Sentence ? Death or Life Even though we have held as above that there was sufficient evidence for establishing the complicity of the appellant in this crime, however the question still remains to be answered as to what would be the appropriate sentence in this. Should the sentence of death awarded by the trial Court be upheld or that the death sentence be substituted with a sentence of imprisonment for life?
For three reasons, we are of the view that this is not the rarest of rare cases where only a sentence of death is appropriate, and where the lesser option of awarding a sentence of life imprisonment is unquestionably foreclosed. One ground for this view is that we find that in this case, whatever be the reasons, but Saumya, the eight year old sister of the deceased Anshu, with whom she was playing, when the appellant enticed Anshu away on his motorcycle has not been examined. Also, although it would be difficult, as the victim was a small child incapable of offering any resistance to the assault by the appellant, but as a matter of fact there was no scientific forensic evidence from a medical examination of the body of the appellant to confirm the allegation of rape and murder. No independent witness of the discovery of the dead body at the instance of the appellant have been produced, although as we have shown above, that the production of such independent witnesses is not necessary. These are the kinds of limitations (though we could not describe them as "infirmities,") that induce us to reach a conclusion that the evidence, to adopt the phrase used in Suresh v. State of U.P., (1981) 2 SCC 569 although sufficient for recording a conviction and awarding a sentence of life imprisonment, was not sufficient for "putting out a life."
There is a passage in Shankar v. State of T.N., (1994) 4 SCC 478, at page 518 which may be aptly cited here:
60. This Court in Dudh Nath Pandey case, (1981) 2 SCC 166 while reducing the death sentence to imprisonment for life observed thus: (SCC p. 175, para 22) "? if witnesses on whose evidence the life of an accused hangs in the balance, do not choose to reveal the whole truth, the Court, while dealing with the question of sentence, has to step in interstitially and take into account all reasonable possibilities, having regard to the normal and natural course of human affairs."
Likewise in Suresh case, (1981) 2 SCC 569 taking into account the quality of evidence, this Court observed thus: (SCC p. 574, para 11) "The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life." (Emphasis added) The telling expression in Suresh regarding the imprudence of recording the conviction on the basis of the testimony of a child witness which could be the product of tutoring (in that case) has recently been reiterated in Uttam Chakraborty v. State of Assam, (2010) 14 SCC 518.
The second reason why award of a death sentence may not be the most appropriate option in this case. It is possible that the appellant may have momentarily lost control of his senses and committed the rape of the child, and fearing the consequence of her disclosure to others he may have strangulated her. In similar circumstances, where the appellant appeared to have lost control of his senses, and committed the crime of rape, and thereafter fearing disclosure by the victim to have committed her murder, the Apex Court in Raju v State of Haryana, (2001) 9 SCC 50, Amrit Singh v. State of Punjab, (2006) 12 SCC 79, Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 has preferred the lesser option of imprisonment for life, in place of a sentence of death.
The third reason for preferring the option of the awarding a sentence of life imprisonment in place of a sentence of death, it that the prosecution has led no evidence for showing that the appellant had any criminal antecedents or that he was likely to repeat such a crime.
It has come in evidence that the appellant had earlier not shown any such tendency as was evinced by his conduct in this case, and that he would play with the child earlier and take her out, and that is why the witness, PW 2 Suresh, did not even question him as to where he was taking the child when he last saw the appellant with the child Anshu. Smt. Babli, PW 3 the mother of the child has also admitted in her cross-examination that the appellant would play with the child earlier, and had made no such advances in the past.
In the Constitutional Bench decision in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, for taking a decision whether a death sentence or a sentence of life imprisonment was appropriate, aggravating and mitigating circumstances as delineated by Chitaley have been referred to with approval. Whilst aggravating circumstances are meticulous planning, extreme depravity of the crime etc., two of the mitigating circumstances as elucidated by Chitaley mentioned at serial numbers 3 and 4 are:
"(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above."
It is apparent that no evidence has been led in the present case to show that there was probability of the appellant committing such a crime in future, and no evidence has been led for showing that the appellant would repeat a crime of this kind.
In Amrit Singh v. State of Punjab, (2006) 12 SCC 79 where the appellant had committed the rape and murder of an 11 year old deceased after enticing her with toffees, and then given two brick blows on her head causing her death, the Supreme Court had commuted her sentence from death to life imprisonment because the appellant the appellant appeared to have acted without premeditation in giving two brick blows to the deceased after she threatened to expose him, and had no criminal antecedents, and it could not be concluded that he would be a danger to society.
In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 there was a difference of opinion of the two Judges who had heard the case on the sentence to be awarded. Accordingly the matter was referred to a larger Bench which observed that as the accused was about 27 years of age who had raped and killed a child studying in a school in Class IV, but as there was no finding regarding the possible reformation and rehabilitation of the appellant and the possibility of his becoming a useful member of society on being given the opportunity, hence the proper course in the case would be to substitute the sentence of death with a sentence of imprisonment for life subject to remissions and commutation at the instance of the Government for good and sufficient reasons.
In Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28, where the 30 year old accused had raped and killed a one-and-a-half year old child, even after describing the crime as heinous, and that the appellant had no control over his carnal desires, the Apex Court had converted the death penalty to one of imprisonment for life holding that a humanist approach needed to be followed and it could not be held that the appellant was such a dangerous person who would endanger the community.
For the aforesaid reasons we are of the view that the order of conviction under various provisions passed by the trial judge is upheld, with the only modification that the sentence of death awarded to the appellant under 302 IPC be substituted with a sentence of imprisonment for life. The fines awarded to the appellant by the trial court under 302 IPC as well as the sentences of imprisonment and fines awarded to the appellant under the various other sections are upheld. With the aforesaid modification the appeal is dismissed.
The reference for confirmation of the death sentence is rejected.
Order Date :- 20.2.2015 sfa/