Santosh Kumar Singh V/S State thr. CBI -CRIMINAL APPEAL NO. 87 OF 2007 (OCTOBER 6, 2010)

[REPORTABLE]



IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 87 OF 2007


Santosh Kumar Singh ....Appellant
Versus
State thr. CBI ...Respondent


J U D G M E N T


HARJIT SINGH BEDI,J.


This appeal arises out of the following facts:
1. The deceased, Priyadarshini Mattoo, was residing
with her parents at B-10/7098, Vasant Kunj, New
Delhi and was a student of the LL.B. course at the
University of Delhi Campus Law Centre, and had
at the relevant time completed the 5th Semester
and was in the final 6th Semester. The appellant,
Santosh Kumar Singh had also been a student in
the same faculty and had completed his LL.B. in
Crl. Appeal No.87 of 2007 December 1994. It appears that the appellant had been attracted to the deceased and even
though he had passed out from the Law Centre in 1994, he had continued to visit the campus even thereafter on his Bullet Motorcycle bearing Registration Number DL-1S-E/1222.




2. As per the prosecution story, the appellant



harassed and intimidated the deceased and despite



her requests and then her remonstrations, did not



desist from doing so. The deceased thereupon made



several complaints against the appellant in different



Police Stations during the year 1995 on which he was



summoned to the Police Station and was advised to



behave properly and a Personal Security Officer, Head



Constable Rajinder Singh PW-32, was also deputed for



the security of the deceased. It appears that as a


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consequence of the complaints against him, the



appellant too retaliated and made a report to the



University on 30th October 1995 alleging that the



deceased was pursuing two courses simultaneously



which was in violation of the University Rules and



when no action was taken he sent two reminders



dated 4th December 1995 and 20th December 1995 to



the University as well. A show cause notice was



issued to the deceased and in response thereto she



submitted her reply dated 1st December 1995 and



during the pendency of these proceedings, the result of



her LL.B. 5th Semester examination was withheld. On



23rd January 1996 PW Head Constable Rajinder Singh,



the PSO, did not turn up at the residence of the



deceased at the stipulated time on which she left for



the University in her car along with her parents PW-1



Mr. C.L. Mattoo and PW-44 Mrs. Rageshwari Mattoo


Crl. Appeal No.87 of

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who had to visit the Tis Hazari Courts to attend to



some civil proceedings. The parents were dropped off



at Tis Hazari at 10.15 a.m. Head Constable Rajinder



Singh, however, reached the Faculty of Law directly



and saw the appellant present there. The deceased



attended the class from 11.15 a.m. to noon and



thereafter accompanied by the Head Constable left the



faculty for Tis Hazari but finding that her parents had



already left the court, she returned to her residence at



about 1.45 p.m. and directed Head Constable Rajinder



Singh to report again at 5.30 p.m. The deceased then



had her lunch whereafter Virender Prasad, the



domestic help, left the house at about 2.30 p.m. to



meet his friend Vishnu Prasad @ Bishamber at the



residence of PW-6 Lt.Col S.K.Dhar at Safdarjung



Enclave and returned to Vasant Kunj at 4.55 p.m. He



then took the dog for a walk in the colony. The


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appellant came to the residence of the deceased at



about 4.50 p.m. carrying his helmet in his hand and



was seen by PW-2 Kuppuswami. PW-3 Jaideep Singh



Ahluwalia, Security Supervisor in the colony also saw



the appellant at 5.30 p.m. near the residence of the



deceased, PW-43 and O.P.Singh, Advocate also noticed



the appellant riding out of the park area of B-10,



Vasant Kunj at the same time. Head Constable



Rajinder Singh PW reached the residence of the



deceased at about 5.30 p.m., as directed, along with



Constable Dev Kumar. The Head Constable pressed



the call bell but eliciting no response from inside, he



went to another door which opened onto the courtyard



and knocked but again to no effect. As the door was



slightly ajar the two entered the bedroom of the



deceased and found her dead body lying under the



double bed. The Head Constable immediately


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informed Police Station, Vasant Kunj about the



incident on which SHO Inspector Surinder Sharma



arrived at the site and a daily diary report (rojnamcha)



to the above facts Ex.PW-18/A was also recorded at



5.45 p.m. Inspector Lalit Mohan, Additional SHO,



Vasant Kunj was entrusted with the investigation on



which he along with Sub-Inspector Sushil Kumar,



Sub-Inspector Padam Singh, Head Constable Satish



Chand and several other police officers too reached the



residence of the deceased and found her dead body



lying under the double bed with the cord of the electric



heat convector tied around her neck. He also noticed



blood stains around the body. A case under section



302 of the IPC was thereafter registered at Police



Station, Vasant Kunj, on the complaint of the father of



the deceased, in which the day's happenings were



spelt out. It was further noted that after completing


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their work in the Tis Hazari Courts he and his wife had



visited Safdarjung Enclave and from there he had gone



on to attend an official meeting at Vikas Kuteer, ITO



whereas his wife had visited the All India Institute of



Medical Sciences and it was on returning to his



residence at 7.30 p.m. that he found that his daughter



had been murdered.




3. During the course of the inquest proceedings



initiated by Inspector Lalit Mohan the crime scene was



photographed and some hair found on the dead body,



broken pieces of glass and blood stains near the dead



body were recovered. The electric cord of the heat



convector which had been used for the strangulation



was also taken into possession. The statements of



PW-6 Lt. Col. S.K. Dhar, PW-1 Mr. C.L. Mattoo, the



complainant, and PW-44 Mrs. Rageshwari Mattoo, the


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mother of the deceased, and several others were



recorded by Inspector Lalit Mohan and the dead body



was then sent to the Safdarjung Hospital. In her



statement, Mrs. Rageshwari Mattoo raised the



suspicion that the appellant was the culprit and he



was joined in the investigation during the night



intervening 23rd and 24th January 1996. He was also



brought before Inspector Lalit Mohan and he noticed



tenderness on his right hand and an injury which was



not bandaged or plastered. He was also sent for a



medical examination and PW-23 Dr. R.K. Wadhwa of



the Safdarjung Hospital examined him at 3.45 a.m.



and found two injuries on his person - one a swelling



on the right hand dorsum lateral aspect, tenderness



with crepitus and the second, scar marks old and



healed multiple both lower limbs and on the chest.



The Doctor also advised an X-ray of the right hand.


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Nail scrapings and hair samples of the appellant were



also taken and handed over to Sub-Inspector



Shamsher Singh and after the X-ray, a fracture of the



5th metacarpal bone of the right hand was detected



and as per Dr. Wadhwa's opinion the injury was



grievous in nature and caused by a blunt weapon.



The appellant was thereafter allowed to go home and



was directed to visit the Police Station at 9 a.m. on the



25th January 1996. The dead body was also subjected



to a post-mortem on 25th January 1995 at the



Safdarjung Hospital by a Board of Doctors consisting



of Dr. Chander Kant, Dr. Arvind Thergaonkar and PW-



33 Dr. A.K. Sharma who in their report Ex.PW33/B



found 19 injuries on the dead body and also observed



that the private parts showed black, curly non-matted



pubic hair, the hymen intact with no tearing present



and admitting only one finger. The Doctors also took


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two vaginal swabs and slides were duly sealed, the



swabs and slides in a glass bottle as well as samples of



the blood and hair. The clothes of the deceased were



also taken into possession and sealed. The Board also



opined that the death was a result of strangulation by



ligature and that the injuries on the dead body were



sufficient to cause death in the ordinary course of



nature.




4. On the 25th January 1996 itself, after the



completion of the post-mortem proceedings, Inspector



Lalit Mohan searched the house of the deceased and



picked up a greeting card Ex.PW 29/B said to be



written by the appellant from her room. The Inspector



also seized a helmet with the visor missing and



indicating that it had broken and the Bullet



motorcycle belonging to the appellant. The specimens


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of his handwriting Exs.PW48/E1, E2 and E3 were also



taken by the Inspector.




5. It appears that as the murder had taken place in



very sordid circumstances and the fact that the



appellant was the son of very senior police officer



serving in the State of Jammu & Kashmir and was on



the verge of a posting as Additional Commissioner of



Police, Delhi, led to a hue and cry which was endorsed



by the parents of the deceased as they apprehended



that they would not get a fair deal from the Delhi



Police. Faced with this situation, the Delhi



Government itself requested the Central Bureau of



Investigation vide letter dated January 24, 1996 that



the investigation be taken over by that agency. As per



the prosecution, this decision was taken by the



Government on the specific request of the


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Commissioner of Delhi Police to the Lt. Governor who



referred the same to the Delhi Government.




6. Inspector Lalit Mohan thereupon produced the



appellant before PW-50 DSP Shri A.K.Ohri of the CBI



and the subsequent investigation was made by the



DSP with the assistance of several other officers from



the CBI. The underwear of the appellant was also



seized by the CBI as he represented that he had been



wearing the same underwear for the last couple of



days. DSP Ohri also visited the crime scene on the



26th January 1996 but did not find Mr. C.L.Mattoo, the



father of the deceased, present. On the next day, he



recorded the statement of Virender Parshad, the



domestic servant and also directed Shri D.P.Singh,



DSP to conduct the house search of the appellant.



On the 28th January 1996, a request Ex.PW34/A was


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made by Mr. S.K.Bhatnagar Additional Director of the



CBI to Dr.A.K.Gupta, Medical Superintendent,



Dr.R.M.L. Hospital for procuring the blood samples of



the appellant. DSP Ohri along with the other staff



took the appellant to the hospital and met PW-34 Dr.



N.S.Kalra, Head of the Biochemistry Department and



two blood samples of 10 ml. each were taken by Ms.



Godavari Mangai, Lab Assistant and were handed over



to Dr. Kalra. These samples as well as the other case



property collected by DSP Ohri or entrusted to him by



Inspector Lalit Mohan were deposited with the



Moharrir Malkhana on the 29th January 1996 and



preparations were made to refer the matter for a DNA



test. Specimen hand writings Ex.PW24/A1 to A21 of



the appellant were also obtained once again this time



by the CBI. On 30th January 1996 Shri M.L.Sharma,



Joint Director, CBI addressed a letter to the Director,


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CCMB, Hyderabad requesting for DNA profiling.



Several articles were accordingly entrusted to PW-39



Sub-Inspector R.S.Shekhawat on 31st January 1996,



they being:



1. One sealed parcel containing clothes of the

deceased such as T-shirt, brassiere, jeans

and underwear.



2. One sealed packet containing underwear of

the accused Santosh Kumar Singh.



3. One sealed jar containing vaginal

swabs/vaginal slides of the deceased and



4. The blood samples of the appellant taken in

the Dr.R.M.L.Hospital.




The Sub-Inspector thereafter flew to Hyderabad



on 31st January 1996 and deposited the



aforementioned articles in the Office of Dr. Lalji Singh,



Officer on special duty at the CCMB, Hyderabad on the



next morning and an acknowledgement Ex.PW49/A



relating to the following articles was obtained:


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1. One sealed parcel containing clothes supposed

to be of the deceased, namely, T-Shirt,

brassiere, jeans and underwear.

2. Vaginal swabs/vaginal slides supposed to be of

the deceased.

3. One thermocole box containing 4 vials marked

as S-1,S-2,S-3 and S-4 supposed to be blood of

the accused.




The underwear of the appellant was, however,



returned by Dr. Lalji Singh as it was not relevant for



the DNA finger printing test. On the 1st February,



1996 DSP Ohri re-visited the house of the deceased



and recorded the statement of Mrs. Rageshwari Mattoo



and Hemant Mattoo, the brother of the deceased who



told the investigating officer that the appellant had



been noticed by PW-2 Shri Kuppuswami standing near



their house shortly before the time of the murder. The



DSP then went to the house of Shri Kuppuswami but



he was away. He, however, recorded his statement on



the 4th February 1996. During the course of the


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investigation, the appellant disclosed that he had



received the injury on the metacarpal bone in an



accident on the 14th January 1996 and had been



treated at the Nirmay Diagnostic Centre and Hindu



Rao Hospital. Inspector Terial was thereupon sent to



the Centre to collect his medical records. They were



duly collected on the 9th February 1996 and 16th



February 1996 and deposited in the malkhana of the



CBI. On 20th February 1996 a letter Ex.PW27/A was



addressed to the Medical Superintendent, Safdarjung



Hospital seeking an opinion about the injury suffered



by the appellant on his hand. An opinion was



rendered by PW-28 Dr. Mukul Sinha and PW-27 Dr.



G.K.Choubey on the 22nd February 1996 that the



injury seemed to be fresh as there was no evidence of



any callus formation. On the completion of the



investigation, the appellant was charged for offences


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punishable under Sections 376/302 of the IPC. He



pleaded not guilty and claimed trial.




7. As there was no eye witness to the incident, the



prosecution placed reliance only on circumstantial and



documentary evidence. After 51 witnesses had been



examined by the prosecution and final arguments were



being heard, the trial court decided that it would be in



the interest of justice to call Dr. G.V.Rao of the CCMB



as a court witness as he, in consultation with PW-48



Dr. Lalji Singh, had conducted the DNA test. His



statement was recorded as CW -1.



In the course of a rather verbose judgment, the



trial court noted that there were 13 circumstances



against the appellant. We quote herein below from the



judgment:


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"1.The accused had been continuously harassing

the deceased right from the end of 1994 to January

1996, a few days before her death.



2. The accused had more than once given an

undertaking that the accused would not harass the

deceased in future while admitting that the accused

had been doing so earlier.



3. The motive of the accused was to have the

deceased or to break her.



4. On the day of occurrence, the accused was

seen in the premises of Faculty of Law, University of

Delhi in the forenoon, where the deceased had gone to

attend LL.B. class. While the accused was no more a

student of Faculty of Law at that time.



5. At the crucial time before murder, i.e. about 5

p.m. on 23.1.96, the accused was seen outside the

door of the flat of the deceased, i.e. B-10/7098 with

helmet in his hand which had a visor.



6. On the day of occurrence after murder, the

accused had reached late to attend class at Indian Law

Institute, Bhagwan Dass Road, where the accused was

a student too.

7. Immediately after the murder, the mother of the

deceased had raised suspicion that the accused had a

hand in the murder of her daughter.



8. When the accused joined investigation on the

night between 23/24.1.96, the accused had an injury


Crl. Appeal No.87 of

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on his right hand. There was swelling and fracture on

5th metacarpal of right hand. There was no plaster or

bandage on his hand. That injury was fresh, having

been caused 24 to 38 hours. The blood pressure of the

accused at that time was high which showed anxiety.



9. DNA Finger Printing Test conclusively

establishes the guilt of the accused.



10. On 25.1.96, the helmet Ex.P.3 of the accused

which was taken into possession had broken visor. On

23.1.96 before murder, it was found by PW2 Shri

Kuppuswami, PW Personal Security Officer Rajinder

Singh that the helmet of the accused had a visor.

Violence was detected on both sides of visor. Helmet

was besmeared with a spec of blood. At the spot pieces

of visor were found near the body of the deceased

besmeared with her blood.



11. The deceased had 19 injuries on her person

besides three broken ribs. These injuries were

suggestive of force used for rape. A tear mark over the

area of left breast region on the T-shirt of the deceased

suggested that the force was used for molestation.



12. The accused took a false defence that fracture

on the hand of the accused was sustained by the

accused on 14.1.96 and it was not a fresh injury. The

accused also gave false replies against proved facts.



13. The influence of the father of the accused

resulting in deliberate spoiling of the case."




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The Trial Court rendered its opinion on the



circumstances 1 to 3 as under:-



(i) "The accused in January, February 1995

tortured the deceased by following her upto the

residence at Safdarjung Enclave at the place of

Colonel SK Dhar and also by telephoning at All

India Institute of Medical Sciences and at her

residence.



(ii) On 25.2.95 the accused followed the deceased

and tried to stop the car of the deceased by

shouting at her which was the cause of lodging

the report Exh. PW6/A. The accused submitted

the apologies Exh.PW6/B and Exh.PW6/DB.



(iii) The accused took the false plea that the

accused was going to IIT on the said date. The

accused also took a false stand that there was

no friendship between the accused and the

deceased. The plea of the accused that such

report was result of refusal of accused to allow

the deceased to sing in the Cultural Festival of

the University has not been substantiated. The

plea is false to knowledge of the accused.



(iv) The subordinate staff of Delhi Police attempted

to assist the accused during investigation and

during trial. Sh. Lalit Mohan Inspector was

instrumental in creating false evidence and

false defence of the accused. The witness of


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police including Rajendra Kumar Sub Inspector

deposed falsely with respect to role assigned as

an agent of law in the matter of complaints in

writing preferred by the deceased. The

subordinate staff of Delhi Police has not

discharged the agency of law in accordance with

basic principles of fair play in action. Had

Rajinder Kumar SI and the SHO of Police

Station RK Puram, SHO Vasant Kunj, ACP

Satinder and Parbhati Lal acted in accordance

with law vis-`-vis accused, as they act towards

an ordinary citizen whose father is not a senior

officer in police department perhaps the

incident would not have occurred.



(v) The accused went to the house of the deceased

at B-10, Vasant Kunj, New Delhi and banged

the door of the house of the accused when the

deceased was alone at home.



(vi) On 6.11.95, the accused tortured the deceased

in the Campus Center of Law which resulted in

lodging of FIR at police station, Maurice Nagar,

Delhi.



(vii) The accused even mentally tortured the

deceased in December, 1995.



(viii) The accused preferred petition against the

deceased to the University against her

appearing in both examinations of M.Com and

LLB in order to pressurize the deceased to


Crl. Appeal No.87 of

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succumb to the ulterior design and motive of

the accused.



(ix) The accused had the intention to have the

deceased and to convert the said intention in

reality and if it is not possible on account of

attitude of the deceased not allow the deceased

to be of anybody else. The facts proved and the

acts of the accused lead to inference that the

accused had the motive to have the deceased at

all event and failing to not to allow her to be of

anybody else. The state has established the

motive."




8. The court observed that the continuous stalking



of the deceased by the appellant despite complaints to



the police showed his utter disregard of the rule of law



and in conclusion held that "circumstances No.1, 2



and 3 are thus held to have been proved beyond any



shadow of doubt by the prosecution." The court then



examined circumstances Nos.4, 5 and 10 cumulatively



and held that the appellant had indeed been seen in



the University Campus Law Centre on the 23rd


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January 1996 riding his motorcycle wearing a helmet



with an intact visor and that on the same day in the



afternoon he had been seen by PW2 Sh. Kuppuswami



at the gate of the house of the deceased carrying a



helmet with a visor. The court further opined that



when the helmet had been seized on the 25th January



1996 it was seen to be in a badly damaged condition



and that the broken pieces of the visor which had been



recovered from the site of the crime besmeared with



the blood of deceased conclusively proved that the



visor had been broken during the commission of the



murder as it had been used to bludgeon the deceased



into submission.




9. The court, accordingly, held that these



circumstances showed that the appellant had been



seen around the house of the deceased at 4.50 pm.


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The High Court also supplemented these findings by



pointing out that as the appellant was no longer a



student of the Law Faculty of the University of Delhi



he had a duty to explain as to why he had visited the



University on the 23rd January 1996. The trial court



nevertheless did not find any conclusive evidence



against the appellant with respect to circumstance



No.6 observing that in view of the uncertain traffic in



the National Capital Territory of Delhi the timing factor



could not be taken as a conclusive one. The High



Court, however, differed with trial court on this aspect



as well and held that the appellant had attended his



classes in the Indian Law Institute on 23rd January



1996 and had been late for the class and this



circumstance showed that this had happened as he



had been involved in committing the rape and murder.



While dealing with circumstance No.8, the trial court


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observed that DSP Ohri had not taken into account



the defence story that the appellant had suffered an



injury on the metacarpal about 10 days prior to the



murder and had thereby not given an opportunity to



the court to review the evidence on this aspect and



had, thus, not acted in a fair manner. The court then



went on to say that "the accused too has not assisted



the court in discharging the onus which was upon him



to justify the defence taken by him in the matter of



alleged injury. Consequently, on the face of an injury,



on
5th
me
tacarpal on the date of crime of murder, with



swelling and tenderness, the court is of the view that



the injury possibly is fresh but on account of lack of



fair play on the part of the CBI, it cannot say that the



defence of the accused is not plausible." This finding



too has been reversed by the High Court in appeal on



the plea that the onus to prove his defence lay on the


Crl. Appeal No.87 of

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appellant and he had admittedly not led any evidence



to support his plea. The High Court, accordingly, held



that the finding of the trial court was perverse on this



aspect. The trial court then went on to circumstance



No.9 and evolved its own theories and after a huge



discussion, rejected the DNA report given by the



CCMB, Hyderabad as also the evidence of Dr. Lalji



Singh and Dr. G.V. Rao. This finding has also been



reversed by the High Court by observing that though



there appeared to be no physical evidence of rape on



the body but the DNA test conducted on the vaginal



swabs and slides and the underwear of the deceased



and the blood sample of the appellant, it was clear that



rape had been committed, and that too by him. The



High Court held that it would be a dangerous doctrine



for the court to discard the evidence of an expert



witness by referring to certain texts and books without


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putting those texts to the expert and taking his



opinion thereon. The High Court also reversed the



finding of the trial court that the vaginal swabs and



slides and the blood samples of the appellant had been



tampered with. The trial court and the High Court



both held circumstance No.11 in favour of the



prosecution and it was observed that the deceased was



alone at the time of incident and that she had been



brutally attacked with the helmet which had been



used with great force to cause as many as 19 injuries,



including three broken ribs. On circumstance No.12,



the trial court gave a finding that there was no



conclusive evidence to show that the injury on the



metacarpal had been suffered by the appellant in the



incident on the 14th January 1996 as the evidence of



Dr. Ashok Charan, the Radiologist was not entirely



credible. The High Court has, however, reversed this


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finding. The Trial Court then examined circumstance



No.13 and found that though there was nothing on



record to show the direct interference of the father of



the appellant in the investigation but as he was likely



to be posted as a senior police officer in the Delhi



Police, the possibility that the lower investigating staff



were influenced by his status was a factor which could



not be ruled out. The trial court also held that



Inspector Lalit Mohan, the first investigating officer



and a member of the Delhi Police had done no credit to



himself but lauded the Commissioner of Police, Delhi



for suggesting that the matter be handed over to the



CBI, to obviate any suspicion of an unfair



investigation.





10. A perusal of the above discussion would reveal


that the trial court had itself held circumstances 1 to


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5, 7 and 10 to 13 in favour of the prosecution,



circumstance No.8 has been held in a manner which



could fall both ways whereas circumstance No.6 has



been held to be of no consequence. The High Court



has, however, held all 13 circumstances as having



been proved in favour of the prosecution. The trial



court, accordingly, on the basis of findings recorded



particularly circumstance No.9, held that the case



against the appellant could not be proved and



acquitted him. The matter was taken in appeal to the



High Court and the High Court has reversed the



judgment of the trial court, as already indicated above



and awarded a death sentence. It is in this



background that this matter is before us. We have



dealt with the arguments in the sequence in which



they have been projected by Mr. Sushil Kumar, the



learned senior counsel for the appellant.


Crl. Appeal No.87 of

2007





11. Mr. Sushil Kumar has first and foremost


submitted that circumstances 8 and 12 with regard to



the defence story projected by the accused were first



required to be considered and in the light of the fact



that the trial court had, in a manner, rejected these



circumstances as supporting the prosecution, it could



not be said that the injury suffered by the appellant on



his right hand fixed his presence at the spot. He has



referred us to the document D-61 an opinion dated



24th January 1996 of PW-23 Dr. Ranjan Wadhwa



which revealed a swelling on the right hand on the



dorsal and lateral aspect, tenderness plus crepitus of



the 5th metacarpal and had suggested an X-ray of the



right hand. He has also taken us to the evidence of



the Doctor to argue that the X-ray had, indeed, been



done and the film had been examined by Dr.


Crl. Appeal No.87 of

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A.Charan, PW-28 Dr. Mukul Sinha and PW-27 Dr.



G.K.Chobe. He has referred to the statement of Dr.



Mukul Sinha to point out that the X-ray performed on



the 14th January 1996 at Nirmay Diagnostic Center



and the other one at the Safdarjung Hospital on 24th



January 1996 could not be said to be of the same



person as the picture had been taken from different



angles. Mr. Sushil Kumar has, further, brought to our



specific notice that as the callus formation had set in,



the injury could not be of the 24th January 1996 and



would have been sustained much earlier. He has also



referred us to the statement of Dr. Chobe who had



examined the X-rays of the appellant taken on 14th



January 1996 and 24th January 1996 and pointed out



that even this Doctor could not give a categoric opinion



as the instructions given by him to the investigating



agency to probe the matter further in a particular


Crl. Appeal No.87 of

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direction, had not been complied with. It has,



accordingly, been submitted that in the face of no



other evidence produced by the prosecution, there was



nothing to suggest that the fracture of the metacarpal



had happened on the 24th January 1996 and the



evidence on the contrary indicated that this fracture



had been suffered during an accident on the 14th



January 1996.




12. Mr. P.P. Malhotra, the learned ASG has, however,


controverted the plea raised on behalf of the appellant.



It has been pointed out that the evidence of Dr.



Wadhwa, Dr. Mukul Sinha and Dr. G.K.Chobe, when



read cumulatively, proved that the injury had been



suffered by the appellant on the 24th January 1996



and was, therefore, fresh at the time when the Doctors



had examined him on that day.


Crl. Appeal No.87 of

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13. We now examine the evidence on these two


circumstances. As already mentioned above, the



medical report dated 24th January 1996 recorded by



Dr. Wadhwa refers to a swelling on the right hand at



the 5th metacarpal. In the very next line in the same



report there is a reference to a scar mark old healed



multiple lower ribs. It is apparent therefore, that the



Doctor himself noticed that the scar mark was an old



and healed injury, whereas the swelling on the right



hand revealed tenderness and presence of the



crepitus. When this Doctor came into the witness box



as PW23, an attempt was made to show that the



condition of the injury indicated that it was about 10



or 15 days old. This plea was specifically denied by



the Doctor. Dr. Mukul Sinha was, however, more



categoric when he stated that the presence of swelling


Crl. Appeal No.87 of

2007




on the right hand was symptomatic of a recent injury



and that after the inflammation slowly subsided the



soft provisional callus would start forming from the



third to the fourteenth day and due to the absence of



any callus formation on the 24th January 1996, it



appeared that the injury could not have been



sustained on the 14th January 1996. Dr. G.K.Chobe



was still more emphatic. After reviewing the medical



report dated 24th January 1996 he put the maximum



duration of the injury between 48 to 72 hours and



further deposed that a fracture of the 5th metacarpal



was generally produced by direct violence, the most



common factor being the striking of the hand against



an opponent during an altercation. He further



clarified that in the case of a fracture of the metacarpal



the swelling would not remain for more than 3 to 4



days and that the callus formation had not yet started


Crl. Appeal No.87 of

2007




as the clicking sound which was known as crepitus



was still noticeable and which always remained till the



callus was formed. Dr. Chobe also made another



significant statement. He pointed out that had the



incident happened on 14th January 1996 a plaster or



bandage would have been applied to the fracture but



there was no indication as to whether this line of



treatment had been adopted. A perusal of this



evidence would reveal two striking facts, one, it



confirms the deposition of the other two doctors that



because the injury was recent the swelling on the



fracture had not settled down, and two, the callus



formation had not yet started as the crepitus was still



present.





14. We see that the positive stand of the appellant


was that he had sustained the injuries on the 14th of


Crl. Appeal No.87 of

2007




January 1996 in the course of a road accident in



which the visor of his helmet had also been broken.



Inspector Terial of the CBI accordingly collected



certain documents from the Nirmay Diagnostic Centre



and the Bara Hindurao Hospital where the appellant



had allegedly been treated for the injuries suffered by



him. Statements of several doctors were also recorded.



These documents were deposited in the CBI Malkhana



on the 9th February 1996 and 16th February 1996. In



the course of his evidence PW DSP Ohri gave the above



facts and further clarified that the appellant's father



had produced an X-ray film before him on the 20th



February 1996 and that he had also issued a notice to



him to produce the treatment record of the appellant



within two days. We see that the documents seized by



Inspector Terial have been exhibited as defence



documents. We further see that a reading of these


Crl. Appeal No.87 of

2007




documents does indicate that an X-ray was taken on



the 14th January 1996. Significantly however no



Doctor of the Nirmay Diagnostic Centre or Bara



Hindurao Hospital had been summoned as a witness.



The trial court has held that the omission to produce



the defence evidence in Court was unbecoming of the



investigating agency but that the appellant himself



was also guilty of not producing any evidence in his



defence and by some curious reasoning has opined



that :



"The accused too has not assisted the

court in discharging the onus which was

upon him to justify the defence taken by

him in the matter of alleged injury.

Consequently, on the face of an injury, on

5
th
metacarpal on the date of crime of

murder, with swelling and tenderness, the

court is of the view that the injury

possibly is fresh but on account of lack of

fair play on the part of the CBI, it cannot

say that the defence of the accused is not

plausible. Therefore this circumstance will

have to be considered in both ways in the


Crl. Appeal No.87 of

2007




cumulative effect of various

circumstances to consider if the case is

proved beyond reasonable doubt."



15. We are indeed astonished at these remarkably


confusing and contradictory observations, as the CBI



was not called upon to prove the defence of the



appellant. The CBI had fairly secured the documents



which could prove the appellant's case and they were



put on record and it was for the defence to use them to



its advantage. No such effort was made. Moreover, we



are unable to see as to how these documents could



have been exhibited as no one has come forward to



prove them. It has to be kept in mind that the



appellant was a lawyer and his father a very senior



Police Officer, and we are unable to understand as to



why no evidence in defence to prove the documents or



to test their veracity, had been produced. In this



background, we find that the medical evidence clearly


Crl. Appeal No.87 of

2007




supports the version that the injury had been



sustained by the appellant on the 24th of January



1996 during the course of the rape and murder. This



finding raises yet another issue. It has been held time



and again that a false plea taken by an accused in a



case of circumstantial evidence is another link in the



chain. In Trimukh Maroti Kirkan vs. State of


Maharashtra 2006 (10) SCC 681 it has been held :


"The normal principle in a case

based on circumstantial evidence is

that the circumstances from which an

inference of guilt is sought to be drawn

must be cogently and firmly

established; that those circumstances

should be of a definite tendency

unerringly pointing towards the guilt of

the accused; that the circumstances

taken cumulatively should form a chain

so complete that there is no escape

from the conclusion that within all

human probability the crime was

committed by the accused and they

should be incapable of explanation on

any hypothesis other than that of the


Crl. Appeal No.87 of

2007




guilt of the accused and inconsistent

with their innocence.



and again



"If an offence takes place inside the

privacy of a house and in such

circumstances, where the assailants

have all the opportunity to plan and

commit the offence at the time and in

circumstances of their choice, it will be

extremely difficult for the prosecution to

lead evidence to establish the guilt of

the accused if the strict principle of

circumstantial evidence, as noticed

above, is insisted upon by the courts. A

judge does not preside over a criminal

trial merely to see that no innocent man

is punished. A judge also presides to

see that a guilty man does not escape.

Both are public duties. The law does

not enjoin a duty on the prosecution to

lead evidence of such character which

is almost impossible to be led or at any

rate extremely difficult to be led. The

duty on the prosecution is to lead such

evidence which it is capable of leading,

having regard to the facts and

circumstances of the case. Here it is

necessary to keep in mind Section 106

of the Evidence Act which says that

when any fact is especially within the


Crl. Appeal No.87 of

2007




knowledge of any person, the burden of

proving that fact is upon him."




16. We, accordingly, endorse the opinion of the High


Court on circumstances 8 and 12. The onus to prove



his defence and the circumstances relating to his



injury and treatment were within the special



knowledge of the appellant. He could, therefore, not



keep silent and say that the obligation rested on the



prosecution to prove its case.




17. Mr. Sushil Kumar has then argued with


emphasis, that the case rested primarily on the factum



of rape and if it was found that there was no evidence



of rape, the case of murder would also fall through.



He has, accordingly, taken us to circumstance No.9



which the trial court noted as under:



"DNA finger printing test conclusively

established the guilt of the accused."


Crl. Appeal No.87 of

2007





He has first pointed out that the post-mortem did



not reveal any evidence of rape. Reference has been



made to the statement of PW33 Dr.A.K.Sharma, who



along with a Board of two other Doctors had performed



the post-mortem on the dead body on the 25th January



1996 at the Safdarjung Hospital and it was observed



that the deceased was wearing a full sleeved high neck



pinkish T-shirt with a small tear on the breast, blue



coloured jeans, one brassiere and underwear and



woolen socks and though there were a large number of



injuries on the dead body and the local examination of



the private parts showed black, curly non matted



pubic hair, and an intact hymen, with no tearing. The



Doctor was also questioned as to whether the hymen



would always be torn and ruptured during the first



sexual encounter and he explained that though this


Crl. Appeal No.87 of

2007




would be the normal case but it was not always so



and that the hymen could remain unruptured even



after repeated sexual intercourse for certain reasons



which he then spelt out. It has, accordingly, been



submitted that there was absolutely no evidence of



rape detected during the course of the examination.



He has also pointed out that as there were no semen



stains on the dead body of the deceased or her clothes



and as the underwear of the appellant sent to the



CCMB, Hyderabad had been returned without



examination and had been examined thereafter in the



Central Forensic Science Laboratory, Delhi and the



semen's stains found were of group A which was not



the blood group of the appellant, there were no



evidence suggesting rape.


Crl. Appeal No.87 of

2007




18. It has, finally, been submitted that the


observation of the High Court that the DNA test



conclusively proved the involvement of the appellant in



the rape was not tenable as it appeared that the



vaginal swabs and slides which were allegedly taken



from the dead body at the time of the post-mortem



examination and the blood samples of the appellant



taken under the supervision of PW Dr. N.S.Kalra had



been tampered with. It has been argued that as per



the findings of the trial court the record of the



Malkhana with respect to the vaginal swabs and slides



had been fudged and though these items had been



handed over to the CBI officers on the 25th January



1996 they had been deposited in the Malkhana on the



29th January 1996 and no explanation was



forthcoming as to how and why this delay had



happened. It has also been submitted that as per the


Crl. Appeal No.87 of

2007




evidence of Dr. N.S.Kalra a request had been made to



him by the CBI to take 2 samples of blood of 10 ml.



each from the appellant but 2 samples of 10 ml. had



been taken and transferred to 4 vials and when the



vials had been opened at the CCMB, only 12 ml. of



blood had been found, and this too cast a doubt on the



prosecution case. It has finally been submitted that



the tests conducted by the CCMB, Hyderabad were



faulty and could not be relied upon.




19. The learned Additional Solicitor General has,


however, controverted the above submissions and has



pleaded that they were based on the supposition of a



bias against the appellant and that all those involved



including the officials of the CBI, the Doctors who had



conducted the post-mortem examination, those who



had taken the blood samples and the Scientists of the


Crl. Appeal No.87 of

2007




CCMB were in league to implicate him in a false case.



He has further argued that there was no evidence of



tampering with the vaginal swabs and slides which



had been sealed by the Doctors and handed over to



the police and had been collected from the Malkhana



by PW-39 Inspector Shekhawat and taken to the



CCMB, whereas the blood samples, on the contrary,



had been retained in the office of Dr. N.S. Kalra in the



RML Hospital and that Inspector Shekhawat had



taken them from there and gone straight on to



Hyderabad and delivered them to the CCMB with seals



intact.




20. At the very outset, we must dispel Mr. Sushil


Kumar's rather broad argument that the primary



allegations were of rape whereas murder was a



secondary issue in the facts of the case and that the


Crl. Appeal No.87 of

2007




proof of murder would depend on proof of rape. We see



from the record that there is very substantial evidence



with regard to the allegations of murder simpliciter



and have been dealt with under circumstance No.11.



We first see that right from the year 1994 to January



1996, that is a few days before the murder, the



appellant had been continuously harassing the



deceased and that this allegation has been proved by



ocular and documentary evidence. We also see that the



appellant had been seen in the Faculty of Law,



University of Delhi on the morning of the incident and



had no business to be present at that place as he had



passed out in the year 1994. He was also seen by PW-



2 Shri Kuppaswami outside the house of the deceased



at about 5 p.m. and was carrying a helmet with an



intact fixed visor, and was seen moving out of the



Vasant Kunj Colony by two witnesses soon after 5 p.m.


Crl. Appeal No.87 of

2007




(though these witnesses ultimately turned hostile).



The only argument against PW-2 is that his statement



under Section 161 of the Code of Criminal Procedure



had been recorded after three days. We find nothing



adverse in this matter as there was utter confusion in



the investigation at the initial stage. Moreover, PW-2



was a next neighbour and a perfectly respectable



witness with no bias against the appellant. In



addition, the recovery of the helmet with a broken



visor and the recovery of glass pieces apparently of the



visor from near the dead body and the fact that the



appellant himself sustained injuries while mercilessly



beating the deceased with his helmet (as per the F.S.L.



Report Ex.PW50/H4) and causing 19 injuries



including three fractured ribs, are other circumstances



with regard to the murder. Assuming, therefore, for a



moment, that there was some uncertainty about the


Crl. Appeal No.87 of

2007




rape, the culpability of the appellant for the murder is



nevertheless writ large and we are indeed surprised at



the decision of the Trial Judge in ordering an outright



acquittal.



With this background, we now examine the



evidence leading to the charge of rape.




21. It is the primary submission of Mr. Sushil Kumar


that the vaginal swabs and slides taken from the dead



body at the time of the post-mortem examination had



been tampered with and as there was some suspicion



with regard to the blood samples taken by Dr.



N.S.Kalra on the 25th January, the DNA report too



could not be relied upon. This is a rather far fetched



plea as it would mean that not only the investigating



agency, that is the senior officers of the CBI and DSP



Ohri in particular, the doctors who had taken the


Crl. Appeal No.87 of

2007




vaginal swabs and slides, the doctors and other staff



who had drawn the blood samples, and the scientists



in Hyderabad had all been in a conspiracy to harm the



appellant. To our mind, this premise is unacceptable.



We see from the post mortem report Ex.PW33/B dated



25th January 1996 and the endorsement thereon that



one bundle containing a full sleeved high neck pinkish



violet colour T-shirt having a cut mark over the area of



the left breast region, one blue coloured jeans, one pair



of woolen socks, one white coloured brassiere and one



blue coloured underwear had been sealed and handed



over to the investigating officer, Inspector Lalit Mohan.



It also finds mention that these items along with two



vaginal swabs and two slides had also been handed



over to the I.O. It has been submitted by Mr. Sushil



Kumar that these items had been retained by



Inspector Lalit Mohan till the 25th of January 1996 and


Crl. Appeal No.87 of

2007




then handed over to PW-38 Inspector Sunit Kumar of



the CBI. Inspector Sunit Kumar, however, deposed



that on the 29th January 1996, and on the direction of



DSP Ohri, he had gone to the department of Forensic



Medicine, Safdarjung Hospital, and taken the bundle



of clothes and one jar containing vaginal swabs and



slides duly sealed and several other items as well and



that a specimen of the seal had also been obtained by



him. It is, therefore, obvious that till 29th of January



1996 the aforesaid articles remained in the custody of



the Safdarjung Hospital and that they were deposited



in the malkhana on the 29th January 1996.




22. We notice from the cross-examination of Inspector


Sunit Kumar that not a single question had been put



to him in the cross-examination doubting the receipt



of the aforesaid items from the hospital on the 29th


Crl. Appeal No.87 of

2007




January 1996. DSP Ohri confirmed the evidence of



Inspector Sunit Kumar Sharma that he had received



the case property from the hospital and it had been



deposited in the malkhana the same day. We have



also examined the photocopy of the Ex.PW47/A, which



is the malkhana register. It first refers to the various



items taken by Inspector Sunit Kumar from the



hospital earlier that day including the clothes and



there is some overwriting with respect to the vaginal



swabs and slides. Mr. Sushil Kumar has thus raised a



suspicion that the entry with regard to the vaginal



swabs and slides was an interpolation with no sanctity



attached to the semen samples. We are unable to



accept this submission for the simple reason that the



post-mortem clearly refers to the aforesaid samples



along with several other items which had been taken



from the dead body on the 25th January 1996 and


Crl. Appeal No.87 of

2007




which had been retained at the Safdarjung Hospital till



29th January 1996 when they had been handed over to



Inspector Sunit Kumar who had handed them over



further to PW Ohri who had deposited them in the



malkhana. Furthermore, a perusal of the post-mortem



report Ex.P33/B bears an endorsement that three



items that is a copy of the report, the inquest



proceedings and the dead body had been handed over



to the Constable at 6 p.m. on 25th January 1996 but



all the other items had been taken by the CBI on the



29th January. Significantly we find an



acknowledgement at the top right hand corner of the



post-mortem report which reads as under:



"issued against authority letter

No.399/3/1(S)/SIV V SIC-II dated

29.1.96 from CBI - authorizing Shri

Sunit Sharma Insp. CBI."


Crl. Appeal No.87 of

2007




Inspector Sunit Kumar had also acknowledged the



receipt of the articles on the 29th at Point X. It is thus



clear that the three first mentioned items had been



handed over to the Constable on the 25th January at 6



p.m. but the other items had been handed over to the



Inspector on the 29th. It bears notice that the 26th to



28th January 1996 were holidays which was perhaps



the cause as to why some of the items including the



semen swabs and stains and the clothes of the



deceased remained in the custody of the hospital



authorities till the 29th. We have also perused the



evidence of PW47 Constable Rajinder Singh of the CBI



who was the In-charge of the malkhana on the day in



question. He admitted that there was no mention that



the swabs and slides were contained in a glass jar, but



the fact that the entries had been interpolated has



been emphatically denied. It is also significant that


Crl. Appeal No.87 of

2007




these items had been taken by Inspector Shekhawat



from the malkhana on the 31st January 1996 in a



sealed condition and in a glass jar and handed over to



the CCMB Hyderabad in an identical condition. In



this connection, we have gone through the evidence of



PW49 Dr.Lalji Singh who deposed on oath that all the



aforesaid items along with several others, (which we



will deal with later) had been received in a sealed



condition as his organization did not accept any item



which was without a seal. He further stated that along



with samples he had received the sample seals which



had been affixed on the bundle of clothes and the



bottle carrying vaginal swabs and slides. It is also of



significance that the vaginal swabs and slides find



mention on the third page of the post-mortem report



whereas the other items taken from the dead body are



on internal page one. This raises the possibility that


Crl. Appeal No.87 of

2007




the Head Constable had, at the initial stage, missed



the articles on page 3 and thereafter rectified the



mistake. No adverse inference against the prosecution



can, thus, be drawn with regard to the retention of the



items in the malkhana. It is also pertinent that no



suggestion was put either to the Doctors or to DSP



Ohri or to Sub-Inspector Shekhawat that the seals of



the aforesaid articles had been tampered with.




23. We now come to the suspicion with regard to the


taking and storage of the blood samples of the



appellant. PW Dr. N.S.Kalra who was the Head of the



Bio-Chemistry Department of Ram Manohar Lohia



Hospital at the relevant time deposed that by letter



Ex.34/A a request had been made to the hospital to



take blood samples of the appellant in two vials



totalling 20 ml. Ms. Godawari, a Laboratory


Crl. Appeal No.87 of

2007




Assistant, was accordingly directed to take the blood



samples in two 10 ml. syringes whereafter the blood



was transferred to 4 vials each containing 5 ml.



which were duly sealed and tape applied over them



which was signed by Dr. Kalra, Dr. S.K.Gupta and



DSP Ohri and a memo Ex.PW34/B to that effect was



prepared. He further deposed that the said vials had



been kept in a refrigerator under his supervision and



were taken by the CBI officers on January 31, 1996



from him and that while the vials remained in his



custody, they were not tampered with in any manner.



He also testified that whenever blood was kept in a



refrigerator, as in the present case, there was little



possibility of evaporation if the rubber cork was air



tight and in cross-examination he deposed that the



watery constituent of blood would not evaporate in the



cool atmosphere of a refrigerator. Mr. Sushil Kumar


Crl. Appeal No.87 of

2007




has accordingly argued that though the CBI had



requested for two samples of 10 ml. each yet the 20



ml. blood had been divided into four vials, and that



when the samples had been opened in the Laboratory



at Hyderabad, only 12 ml. blood in all had been



recovered from the four vials. We, however, find that



no suspicion can be raised with regard to the sanctity



of the samples. It has come in the evidence of Dr. Lalji



Singh that 12 ml. of blood said to be that of the



appellant Santosh Kumar Singh in four sterile vials



containing about 3 ml. each had been received



through Inspector Ranbir Shekhawat along with other



items. He further explained that in cross-examination



that if the blood samples were kept in a refrigerator



and handed over to the Inspector on the 31st January



and received in the laboratory the next day, it was not



likely that 2 ml. out of each of the four vials would


Crl. Appeal No.87 of

2007




evaporate although some blood could have evaporated.



He further stated that there appeared to be some



leakage in the vials as traces of blood appeared to be



in the material with which the vials had been sealed



although this fact did not find mention in his report.



Here too, we must emphasize that the blood samples



were in the custody of the hospital till they were



received by the Inspector Shekhawat for the first time



on 31st January 1996 and he had left for Hyderabad



the same day and handed over the samples and other



items to the laboratory on 1st February 1996. The trial



court has had much to say on this aspect. It has held



that Dr. N.S.Kalra was a doctor who could be



influenced in the matter. Reliance has also been



placed on the document PW34/A of Shri Bhatnagar



addressed to the Medical Superintendent of RML



Hospital that two samples of blood of 10 ml. be taken


Crl. Appeal No.87 of

2007




from the accused and then goes on to say that 20 ml.



blood was taken but it had been divided into four vials



of 5 ml. each which was against the requisition. The



trial court observed that as per the deposition of CW1



Dr. G.V.Rao of the CCMB, Hyderabad the samples had



been received in the laboratory but only 12 ml. blood



had been found in the vials which raised serious



questions and the prosecution was thus called upon to



explain as to how 8 ml. of blood had disappeared and



in the absence of a proper explanation, the possibility



that the said samples had been tampered with, could



not be ruled out. The trial court has, accordingly,



rejected the evidence of Dr. N.S.Kalra, Dr. Lalji Singh



and Dr. G.V.Rao as to why and how the quantity of the



blood may have been reduced. The court also



examined the document PW-34/B, which is the memo



relating to the taking of the blood samples, and by


Crl. Appeal No.87 of

2007




some very curious reasoning concluded that some



additions had been made in the document as some



words were not in their proper place and sequence and



appeared to have been squeezed in and that the



handwriting was also not identical. We have minutely



perused the document ourselves and can find no such



flaw. We also find absolutely no reason to accept the



very broad and defamatory statement of the trial court



that Dr. N.S.Kalra was a convenient witness for the



prosecution as there is no basis for this finding. On



the other hand, there is ample evidence to suggest that



the blood samples had been kept in the hospital in a



proper way and handed over to Inspector Shekhawat



who had taken them to the CCMB, Hyderabad and



that the explanation tendered by Dr. Lalji Singh and



Dr. G.V.Rao as to why the quantity of blood may have



been reduced, merits acceptance. The High Court


Crl. Appeal No.87 of

2007




was, therefore, fully justified in holding that the trial



court's conclusions on the question of the retention



and dispatch of the swabs and slides and the clothes



of the deceased the blood samples was faulty, and



based on a perverse assessment of the evidence.




24. We now come to the circumstance with regard to


the comparison of the semen stains with the blood



taken from the appellant. The trial court had found



against the prosecution on this aspect. In this



connection, we must emphasize that the Court cannot



substitute its own opinion for that of an expert, more



particularly in a science such as DNA profiling which



is a recent development. Dr. Lalji Singh in his



examination in chief deposed that he had been



involved with the DNA technology ever since the year



1974 and he had returned to India from the U.K. in


Crl. Appeal No.87 of

2007




1987 and joined the CCMB, Hyderabad and had



developed indigenous methods and techniques for



DNA finger printing which were now being used in this



country. We also see that the expertise and experience



of Dr. Lalji Singh in his field has been recognized by



this Court in Kamalantha & Ors. Vs. State of Tamil


Nadu 2005 (5) SCC 194. We further notice that CW-1


Dr. G.V.Rao was a scientist of equal repute and he had



in fact conducted the tests under the supervision of



Dr.Lalji Singh. It was not even disputed before us



during the course of arguments that these two



scientists were persons of eminence and that the



laboratory in question was also held in the highest



esteem in India. The statements of Dr. Lalji Singh and



Dr. G.V. Rao reveal that the samples had been tested



as per the procedure developed by the laboratory, that



the samples were sufficient for the purposes of


Crl. Appeal No.87 of

2007




comparison and that there was no possibility of the



samples having been contaminated or tampered with.



The two scientists gave very comprehensive statements



supported by documents that the DNA of the semen



stains on the swabs and slides and the underwear of



the deceased and the blood samples of the appellant



was from a single source and that source was the



appellant. It is significant that not a single question



was put to PW Dr. Lalji Singh as to the accuracy of the



methodology or the procedure followed for the DNA



profiling. The trial court has referred to a large



number of text books and has given adverse findings



on the accuracy of the tests carried out in the present



case. We are unable to accept these conclusions as



the court has substituted its own opinion ignoring the



complexity of the issue on a highly technical subject,



more particularly as the questions raised by the court


Crl. Appeal No.87 of

2007




had not been put to the expert witnesses. In Bhagwan


Das & Anr. vs. State of Rajasthan AIR 1957 SC 589


it has been held that it would be a dangerous doctrine



to lay down that the report of an expert witness could



be brushed aside by making reference to some text on



that subject without such text being put to the expert.





25. The observations in Gambhir vs. State of


Maharashtra AIR 1982 SC 1157 are even more


meaningful in so far as we are concerned. In this case,



the doctors who had conducted the post-mortem



examination could not give the time of death. The



High Court, in its wisdom, thought it proper to delve



deep into the evidence and draw its own conclusions



as to the time of death and at the same time, made



some very adverse and caustic comments with regard



to the conduct of the Doctors, and dismissed the


Crl. Appeal No.87 of

2007




appeal of the accused. This Court (after the grant of



special leave) allowed the appeal and reverting to the



High Court's opinions of the doctors observed:



"The High Court came to its own opinion

when the doctors failed to give opinion.

The Court has to draw its conclusion on

the basis of the materials supplied by the

expert opinion. The High Court has tried

to usurp the functions of an expert."



This is precisely the error in which the trial court



has fallen. It is significant that at the initial stage only



Dr. Lalji Singh had been summoned to prove the DNA



report and it was during the course of final arguments



that the court thought it fit to summon Dr. G.V.Rao as



a court witness. This witness was subjected to an



extra-ordinarily detailed examination-in-chief and even



more gruelling and rambling a cross-examination



running into a hundred or more pages spread over a



period of time. The trial court finally, and in


Crl. Appeal No.87 of

2007




frustration, was constrained to make an order that the



cross-examination could not go on any further. We



are of the opinion that the defence counsel had



attempted to create confusion in the mind of CW-1 and



the trial court has been swayed by irrelevant



considerations as it could hardly claim the status of an



expert on a very complex subject. We feel that the trial



court was not justified in rejecting the DNA Report, as



nothing adverse could be pointed out against the two



experts who had submitted it. We must, therefore,



accept the DNA report as being scientifically accurate



and an exact science as held by this Court in Smt.


Kamti Devi v. Poshi Ram AIR 2001 SC 2226. . In


arriving at its conclusions the trial court was also



influenced by the fact that the semen swabs and slides



and the blood samples of the appellant had not been



kept in proper custody and had been tampered with,


Crl. Appeal No.87 of

2007




as already indicated above. We are of the opinion that



the trial court was in error on this score. We,



accordingly, endorse the conclusions of the High Court



on circumstance No.9.




26. Mr. Sushil Kumar, has almost at the fag end of


his arguments, dealt with the question of motive. He



has pointed out that it was by now well settled that



motive alone could not form the basis for conviction as



in a case of circumstantial evidence the chain



envisaged was to be complete from the beginning to



the end and to result in the only hypothesis that the



accused and the accused alone was guilty of the crime.



In this connection, he has pointed out that the oral



and documentary evidence relied upon by the



prosecution raised some misgivings and confusion in



the relationship of the appellant and the deceased


Crl. Appeal No.87 of

2007




inter-se, but they could not have been the cause for



the rape and murder. The learned ASG has, however,



taken us to the evidence to argue that there was



absolutely no doubt that the appellant felt frustrated



as the deceased was not giving in to his overtures



despite having been pursued relentlessly over two



years, and had in anger and frustration, committed



the rape and murder. It has been reiterated that the



finding of the trial court and the High Court on the



motive (which were circumstances Nos.1, 2 and 3) has



been concurrent inasmuch that the appellant had the



motive to commit the murder.




27. We have gone through the evidence on this score.


As already observed, this comprises ocular and



documentary evidence. The relevant documents in



this connection are Ex.PW6/C, a complaint dated 25th


Crl. Appeal No.87 of

2007




of February 1995 in which the deceased referred to an



earlier incident in which the appellant had been



harassing her either at her residence B-1/4



Safdarjung Enclave or in the Faculty of Law and then



pointed out that on that day as well when she had left



her house at 10.30 a.m. to go to a friends place she



had found the appellant following her and trying to



stop her at every traffic light and harassing and



shouting at her on which she had made a complaint at



the R.K.Puram Police Station and as a consequence



thereof the appellant had tendered two apologies



Ex.PW6/DB, and an undertaking not to harass her



any more either himself or through his friends or to



spoil her reputation. These apologies also dated 25th of



February 1995 were witnessed by PW Lt. Col.



S.K.Dhar and Sub-Inspector Rajinder Kumar. This



was followed by another complaint Ex.PW 11/A


Crl. Appeal No.87 of

2007




regarding some incident at the Khyber Petrol Pump



and another undertaking was given by the appellant



that he would not harass her on which she withdrew



her complaint. The trial court further noticed that yet



another incident had happened at about 3 p.m. on 16th



August 1995 when the appellant had followed her



home all the way from the University. A message was



accordingly flashed from a PCR and received at Police



Station, Vasant Kunj, and was recorded in the Daily



Entry Register as Ex. PW12/A. An enquiry was



entrusted to PW-12 Head Constable Vijay Kumar who



went to the house of the deceased and took a report



Ex.PW1/A dictated by her to her father and the



appellant was thereafter arrested and taken to the



police station along with his motorcycle. In this report



the deceased wrote about the earlier incidents of



harassment and also the apologies that had been


Crl. Appeal No.87 of

2007




tendered by the appellant from time to time. It



appears, however, that the police was under some



influence and instead of pursuing the complaint to its



logical end, several police officers, including the SHO,



ACP Parbhati Lal and ACP Satender Nath persuaded



the deceased to compromise the matter on which the



deceased was compelled to state that the complaint be



kept pending for the time being. We also find that an



incident had happened on 16th February 1995 which



led the deceased to file an FIR against the appellant



under Section 354 of the IPC at Police Station, Maurice



Nagar in which she wrote that despite the fact that a



PSO had been attached with her because of the



appellant's misconduct, he had still continued to



chase and harass her and that as she was entering her



class room he had caught hold of her arm and



threatened her and tried to forcibly talk to her and


Crl. Appeal No.87 of

2007




that she had immediately called her PSO who made a



call to the Maurice Nagar Police Station and the police



had come and taken him away. In addition to this, we



find that the appellant had made a complaint against



the deceased to the University authorities and followed



it up with a reminder that she was pursuing two



courses in the University at the same time which was



against the rules with the result the University had



issued a show cause notice to her and that the matter



was still under enquiry with the University when the



present incident happened. There is ocular evidence



as well. PW1 Shri C.L.Mattoo, deposed that when he



visited Delhi in December 1995 he noticed that the



appellant and two or three boys were passing lewd



remarks at his daughter. Likewise, it has come in the



evidence of PW44 Smt. Rageshwari Mattoo, who



testified that while she was admitted in the AIIMS, the


Crl. Appeal No.87 of

2007




appellant had repeatedly called the deceased on



telephone despite the fact that she was not taking his



calls. The courts below have also placed reliance on



the evidence of three witnesses in support of the



telephone calls i.e. PW10 Tanwir Ahmed Mir, PW13



Satender Kumar Sharma, Advocate and PW16 Ms.



Manju Bharti, Advocate who came into witness box to



state that the deceased had told them that the



appellant was harassing her on the telephone as well.



We also notice other evidence with regard to the sexual



harassment. PW44 deposed that when she had visited



Lt. Col. S.K.Dhar's home Delhi in January 1995 (with



whom the deceased was then residing), the appellant



had tried to forcibly enter the house while she was



present on which she had told him that as the



deceased was already engaged, he should not harass



her. She also referred to the fact that in February


Crl. Appeal No.87 of

2007




1995 when she had visited Delhi again, Bishamber,



the domestic servant of Lt. Col. S.K.Dhar had brought



a bouquet from the outside with a chit reading



"Valentines Day - with love from Santosh". These



incidents of harassment were confirmed by Lt. Col.



S.K.Dhar as well who deposed that the appellant had



been harassing the deceased from November 1994



onwards and would repeatedly come to his house on



his black Bullet motorcycle. In the light of the above



evidence, the motive stands proved beyond any doubt.



It appears that as the appellant's overtures had been



rebuffed by the deceased, he had resorted to harassing



her in a manner which became more and more



aggressive and crude as time went by. It is evident



that the appellant was well aware of her family



background and despite several complaints against



him and the provision of a PSO, he had fearlessly and


Crl. Appeal No.87 of

2007




shamelessly pursued her right to the doorsteps of her



residence ignoring the fact that she had first lived in



the house of Lt. Col. S.K.Dhar, an Army Officer from



the end of 1994 onwards and after January 1996 with



her parents, her father too being a very senior officer



in a Semi-Government Organization. It has come in



the evidence of PW Smt. Rageshwari Mattoo that the



police officers before whom the appellant had been



brought on the complaints had desisted from taking



any action against him and had, on the contrary



harassed her, her husband and the deceased by



summoning and detaining them in the Police Station



at odd hours and for long periods of time. It was this



behaviour that led the trial court to comment very



adversely on the conduct of some of the police officers



involved. We endorse the findings of the trial court



that the conduct of these officers deserves to be


Crl. Appeal No.87 of

2007




condemned as reprehensible.




28. We are, therefore, of the opinion that


circumstances 1 to 3 which have been found by two



courts against the appellant and in favour of the



prosecution constitute a very strong chain in the



prosecution's case. We agree with Mr. Sushil Kumar's



broad statement that motive alone cannot form the



basis of conviction but in the light of the other



circumstances, the motive goes a very long way in



forging the links in the chain.




29. A few additional submissions made by Mr. Sushil


Kumar while arguing the matter in reply must now be



dealt with. He has first pointed out that the trial court



had acquitted the appellant and the High Court had



reversed the judgment and the matter before us was,



therefore, in the nature of a first appeal and the


Crl. Appeal No.87 of

2007




guiding principles relating to interference in such an



appeal by the High Court postulated in Arulvelu &


Anr. vs. State & Anr. (2009) 10 SCC 206 had to be


adhered to. He has also submitted that it was now



well settled that all circumstances which were to be



used against an accused in a criminal case were to be



put to him in his statement under Section 313 of the



Cr.P.C. failing which the said circumstance could not



be taken into account. Reliance for this plea has been



placed on Ishwar Singh vs. State of U.P. (1976) 4



SCC 355 and Ashraf Ali vs. State of Assam (2008) 16



SCC 328. Elaborating on this aspect, it has been



pointed out that the allegation that the appellant had



strangulated the deceased with the use of a wire of the



heat convector and the fact that the helmet had been



used for causing the injuries to the deceased had not



been put to him. The learned ASG too has placed


Crl. Appeal No.87 of

2007




reliance on a large number of judgments to the effect



that the omission to put a question to an accused



would not ipso-facto result in the rejection of that



evidence as the onus lay on the accused to show



prejudice. These judgments are Sharad Birdhichand


Sarda vs. State of Maharashtra (1984) 4 SCC 116


and Suresh Chandra Bahri vs. State of Bihar 1995


Supp (1) SCC 80.




30. We first examine the argument with regard to the


propriety of the High Court's interference in an



acquittal appeal assuming the present matter to be a



first appeal. Undoubtedly, a judgment of acquittal



rendered by a trial court must be given the greatest



consideration and the appellate court would be slow in



setting aside that judgment, and where two views are



possible, the one taken by the trial court would not be


Crl. Appeal No.87 of

2007




disturbed. On the contrary if the trial court's



judgment was perverse, meaning thereby that it was



not only against the weight of evidence but was all



together against the evidence, interference was called



for. The High Court was alive to its limitation in such



a matter and while dealing with this argument first



expressed its shock and observed that though virtually



all the findings were in favour of the prosecution, yet



curiously, the decision had been rendered in favour of



the accused. The judgment of the trial court was



accordingly held to be perverse and against the



evidence. The High Court (in paragraph 28) observed



thus:



"We have carefully and extensively gone

through the material on record with the aid

of counsel for the parties. Since this is an

appeal from judgment of acquittal we can

interfere only if we are satisfied that the

findings of the trial court are perverse and

have resulted in grave miscarriage of


Crl. Appeal No.87 of

2007




justice. High Court while hearing an appeal

against acquittal has the power to

reconsider the whole evidence and to come

to its own conclusion in place of the

findings of the trial court but only if the

decision of the trial court is such which

could not have been arrived at all by

reasoning."




31. We too believe from a perusal of the evidence that


the High Court's observations were justified on the



facts. In other words, even assuming that the matter



before us was to be treated as a first appeal, we too



would have interfered in the matter and set aside the



judgment of the trial court, as it was against the



evidence and to desist from doing so would cause great



injustice not only to the prosecution but even to the



deceased victim and her family.




32. We now come to the argument with regard to the


omission in putting certain questions to the appellant.


Crl. Appeal No.87 of

2007




It does appear from the circumstance that it was the



appellant who had strangulated the deceased and that



too with the convector wire had not been put to the



appellant but it is clear from question No.86 that the



fact that death had been caused by asphyxiation as a



result of strangulation by ligature and that the ligature



material was one with a soft surface, had been put to



him. We also see that when the injuries at serial



Nos.1 to 11 in the post-mortem report Ex.PW33/B had



been put to the appellant, he had merely made a



statement that he did not know anything. We further



notice from the evidence of PW-33 Dr.A.K.Sharma that



the cause of death was strangulation and that the



nature of injury Nos. 4 and 5, which referred to the



ligature marks on the neck, had been pointedly asked



of the Doctor in cross-examination. Likewise, the fact



that the helmet had been used as weapon of offence,


Crl. Appeal No.87 of

2007




had not been specifically put to the appellant but here



again we find absolutely no prejudice to the appellant



on this score as the death had been caused not by the



use of the helmet but by strangulation and that the



appellant and his counsel were fully alive to the



prosecution story that the helmet had been used as a



weapon to beat the deceased into submission. Ishwar



Singh's case (supra) cited by Mr. Sushil Kumar was



not dealing with a statement under Section 313 of the



Cr.P.C. The facts show that the ballam or bhala



which were alleged to be the murder weapons had not



been shown to the doctor and this Court held that in



this situation, it was not possible to convict the



accused (who had been charged under Section



302/149) under Section 302 IPC simpliciter. This



present case does not fall within this category. Mr.



Sushil Kumar has, however, placed greater reliance on


Crl. Appeal No.87 of

2007




Ashraf Ali's case (supra) whereby this Court relying on



a large number of judgments observed as under:



"The object of Section 313 of the Code is

to establish a direct dialogue between the

court and the accused. If a point in the

evidence is important against the

accused, and the conviction is intended to

be based upon it, it is right and proper

that the accused should be questioned

about the matter and be given an

opportunity of explaining it. Where no

specific question has been put by the trial

court on an inculpatory material in the

prosecution evidence, it would vitiate the

trial. Of course, all these are subject to

rider whether they have caused

miscarriage of justice or prejudice. This

Court also expressed a similar view in

S.Harnam Singh v. State (Delhi Admn.)

while dealing with Section 342 of the

Criminal Procedure Code, 1898

(corresponding to Section 313 of the

Code). Non-indication of inculpatory

material in its relevant facts by the trial

court to the accused adds to the

vulnerability of the prosecution case.

Recording of a statement of the accused

under Section 313 is not a purposeless

exercise."


Crl. Appeal No.87 of

2007




33. Undoubtedly, the observations are extremely


relevant for the purpose of this case but each case has



to be seen on its own facts, more particularly that the



omission had caused prejudice to the accused as



would be clear from the rider put by the court in this



very case (and highlighted by us). On the contrary, we



find that prejudice must ensue has been reiterated by



this Court in Suresh Chandra Bahri's case (supra) and



a very large number of other cases. This is what the


Court has to say in Bahri's case:



"Learned Senior Counsel Shri Sushil Kumar
appearing for the appellant Raj Pal Sharma
submitted that in view of the fact that no
question relating to motive having been put to
the appellants on the point of motive under
Section 313 of the Code of Criminal Procedure,
no motive for the commission of the crime can
be attributed to the appellants nor the same
can be reckoned as circumstance against the
appellants. It is no doubt true that the
underlying object behind Section 313 CrPC is
to enable the accused to explain any
circumstance appearing against him in the
evidence and this object is based on the maxim
audi alteram partem which is one of the
principles of natural justice. It has always
been regarded unfair to rely upon any
incriminating circumstance without affording


Crl. Appeal No.87 of

2007




the accused an opportunity of explaining the
said incriminating circumstance. The
provisions in Section 313, therefore, make it
obligatory on the court to question the accused
on the evidence and circumstance appearing
against him so as to apprise him the exact
case which he is required to meet. But it would
not be enough for the accused to show that he
has not been questioned or examined on a
particular circumstance but he must also
show that such non-examination has actually
and materially prejudiced him and has
resulted in failure of justice. In other words in
the event of any inadvertent omission on the
part of the court to question the accused on
any incriminating circumstance appearing
against him the same cannot ipso facto vitiate
the trial unless it is shown that some prejudice
was caused to him. In Bejoy Chand Patra v.
State of W.B., this Court took the view that it is
not sufficient for the accused merely to show
that he has not been fully examined as
required by Section 342 of the Criminal
Procedure Code (now Section 313 in the new
Code) but he must also show that such
examination has materially prejudiced him.
The same view was again reiterated by this
Court in Rama Shankar Singh v. State of W.B.
In the present case before us it may be noted
that no such point was raised and no such
objection seems to have been advanced either
before the trial court or the High Court and it
is being raised for the first time before this
Court which appears to us to be an
afterthought. Secondly, learned counsel
appearing for the appellants was unable to
place before us as to what in fact was the real
prejudice caused to the appellants by omission
to question the accused/appellant Suresh
Bahri on the point of his motive for the crime.
No material was also placed before us to show
as to what and in what manner the prejudice,
if any, was caused to the appellants or any of
them.

Apart from what has been stated above, it
may be pointed out that it cannot be said that


Crl. Appeal No.87 of

2007




the appellants were totally unaware of the
substance of the accusation against them with
regard to the motive part. In this regard a
reference may be made to Question Nos. 5, 6
and 7 which were put to the appellant Suresh
Bahri in the course of his statement recorded
under Section 313 CrPC. The sum and
substance of these questions is that from the
prosecution evidence it turns out that the
acquitted accused Y.D. Arya the maternal
uncle of the appellant Suresh Bahri was living
in a portion of the upper storey of his house at
Delhi. He with the consent of Santosh Bahri
the mother of Suresh Bahri, was interfering in
the family affairs as well as in business
matters by reason of which the maternal uncle
had to leave the house and that having regard
to the future of her children Urshia Bahri not
only wanted to manage the property but also
to dispose of the same which was not liked by
Suresh Bahri and with a view to remove
Urshia Bahri from his way the appellant
Suresh Bahri wanted to commit her murder. In
view of these questions and examination of
Suresh Bahri, it cannot be said that he was
totally unaware of the substance of the
accusation and charge against him or that he
was not examined on the question of motive at
all. In the facts and circumstances discussed
above it cannot be said that any prejudice was
caused to the appellant. The contention of the
learned counsel for the appellants in this
behalf therefore has no merit."





34. We see that the facts of each case have to be


examined but the broad principle is that all



incriminating material circumstances must be put to



an accused while recording his statement under


Crl. Appeal No.87 of

2007




Section 313 of the Code, but if any material



circumstance has been left out that would not ipso-



facto result in the exclusion of that evidence from



consideration unless it could further be shown by the



accused that prejudice and miscarriage of justice had



been sustained by him. We see from the case in hand



that not only were the questions pertaining to the



helmet and the ligature marks on the neck put to the



Doctor and even in a way to the appellant but the



defence counsel had raised comprehensive arguments



on these core issues not only before the trial court and



the High Court but before us as well. The defence



was, therefore, alive to the circumstances against the



appellant. No prejudice or miscarriage of justice has,



thus, been occasioned.


Crl. Appeal No.87 of

2007




35. We have also kept in mind the broad principle


that a particularly nasty and revolting a crime imposes



a yet greater caution on the Court which must resist



the tendency to look beyond the file and not be swayed



by the horror of the crime or the character of the



accused. In Kashmira Singh vs. State of Madhya


Pradesh AIR 1952 SC 159 it has been observed thus:-


"The murder was a particularly cruel and

revolting one and for that reason /it will be

necessary to examine the evidence with

more than ordinary care lest the shocking

nature of the crime induce an instinctive

reaction against a dispassionate judicial

scrutiny of the facts and law."




36. Likewise the observations in Ashish Batham vs.


State of Madhya Pradesh (2002) 7 SCC 317 too are


relevant:



"Realities or truth apart, the fundamental

and basic presumption in the

administration of criminal law and justice

delivery system is the innocence of the


Crl. Appeal No.87 of

2007




alleged accused and till the charges are

proved beyond reasonable doubt on the

basis of clear, cogent, credible or

unimpeachable evidence, the question of

indicting or punishing an accused does not

arise, merely, carried away by the heinous

nature of the crime or the gruesome manner

in which it was found to have been

committed. Mere suspicion, however, strong

or probable it may be is no effective

substitute for the legal proof required to

substantiate the charge of commission of a

crime and graver the charge is, greater

should be the standard of proof required.

Courts dealing with criminal cases at least

should constantly remember that there is a

long mental distance between "may be true"

and "must be true" and this basic and

golden rule only helps to maintain the vital

distinction between "conjectures" and "sure

conclusions" to be arrived at on the

touchstone of a dispassionate judicial

scrutiny based upon a complete and

comprehensive appreciation of all features of

the case as well as quality and credibility of

the evidence brought on record."




The aforesaid principles have been scrupulously



adhered to by us while hearing this matter over almost



5 days.


Crl. Appeal No.87 of

2007





37. We now come to the question of sentence. It has


been submitted by Mr. Sushil Kumar that the present



case was not one which fell in the category of the



`rarest of rare cases' as several mitigating



circumstances with respect to the sentence were



discernable. He has first pointed out that the High



Court had reversed an acquittal judgment based



exclusively on circumstantial evidence. He has further



argued that the appellant was a young man about



24/25 of age on the date of incident and had been led



astray by the vagaries of youth and that after his



acquittal in December 1999, he had got married (in



the year 2003) and a baby girl had been born to him



and his wife before the judgment of the High Court



had been delivered in October 2006. These



submissions have been stoutly opposed by the learned


Crl. Appeal No.87 of

2007




ASG who has submitted that even the trial court had



given a positive finding that the motive and murder



were truly barbaric and revolting and had been



preceded by continuous harassment of the deceased



over a period of two years and the appellant was an



advocate with an over indulgent police officer father



who had repeatedly come to the rescue of his son.




38. We have considered the arguments of the learned


counsel and have also gone through the judgments



relied upon by them in support of their respective



cases.



We think that the answer on the question of the



sentence can be found in the judgment of the High



Court itself. We quote from paragraph 3 of the



sentencing part of the judgment delivered on 30th



October 2006:


Crl. Appeal No.87 of

2007




"We have heard learned counsel for the

parties and have given our consideration

to what has been placed before us. We

need hardly say that sentencing is the

most difficult part of a judgment and this

indeed has been a case here. There is

absolutely no doubt in our mind that

what was required of Santosh Singh was

exemplary behaviour being a son of a

police officer and also a lawyer himself yet

with a premeditated approach he

continued to harass the victim for nearly

two years and ultimately in spite of

repeated warnings by the police and his

undertakings to them went about

committing a most ghastly act. The act

itself sent ripples in the society and

showed how insecure a citizen can get

against this kind of a person. In the

various judgments which have been

referred to by counsel from both sides we

find the principles laid down to the

considered while deciding the question of

sentence are best reported in `Bachan

Singh vs. State of Punjab' AIR 1980 SC

898 and `Machhi Singh vs. State of

Punjab, 1983 SC 211. These cases sum

up the law on the subject of death penalty

which we have kept in mind. Evaluating

the circumstances in favour and against

the convict which have already been

enumerated above, we find that the

aggravating circumstances referred to by


Crl. Appeal No.87 of

2007




the Additional Solicitor General for

outweigh the circumstances which

according to the counsel to the convict are

mitigating circumstances, although we do

not consider them to be so. We are thus

of the opinion that for a crime of this sort

which has been committed with

premeditation and in a brutal manner the

convict deserves no other sentence but

death."



The underlined words themselves give a hint as to



the sentence that should be awarded in this case.



Undoubtedly the sentencing part is a difficult one and



often exercises the mind of the Court but where the



option is between a life sentence and a death sentence,



the options are indeed extremely limited and if the



court itself feels some difficulty in awarding one or the



other, it is only appropriate that the lesser sentence



should be awarded. This is the underlying philosophy



behind `the rarest of the rare' principle. Furthermore,



we see that the mitigating circumstances need to be


Crl. Appeal No.87 of

2007




taken into account, more particularly that the High



Court has reversed a judgment of acquittal based on



circumstantial evidence, the appellant was a young



man of 24 at the time of the incident and, after



acquittal, had got married and was the father of a girl



child. Undoubtedly, also the appellant would have



had time for reflection over the events of the last fifteen



years, and to ponder over the predicament that he now



faces, the reality that his father died a year after his



conviction and the prospect of a dismal future for his



young family. On the contrary, there is nothing to



suggest that he would not be capable of reform. There



are extremely aggravating circumstances as well. In



particular we notice the tendency of parents to be over



indulgent to their progeny often resulting in the most



horrendous of situations. These situations are



exacerbated when an accused belongs to a category


Crl. Appeal No.87 of

2007




with unlimited power or pelf or even more



dangerously, a volatile and heady cocktail of the two.



The reality that such a class does exist is for all to see



and is evidenced by regular and alarming incidents



such as the present one. Nevertheless, to our mind,



the balance sheet tilts marginally in favour of the



appellant, and the ends of justice would be met if the



sentence awarded to him is commuted from death to



life imprisonment under Section 302 of the Indian



Penal Code; the other part of the sentence being



retained as it is. With this modification in the



sentence, the appeal is dismissed.






...................................J.

(HARJIT SINGH BEDI)





...................................J.

(CHANDRAMAULI KR. PRASAD)


Crl. Appeal No.87 of

2007




DATED: OCTOBER 6, 2010

NEW DELHI.