Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 1327 of 2005
PETITIONER:
Amrit Singh
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 10/11/2006
BENCH:
S.B. SINHA & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
S.B. Sinha, J :
This appeal is directed against a judgment of conviction and sentence
dated 19.3.2005 passed by the Additional Sessions Judge, Mansa awarding
death penalty to Appellant under Sections 376 and 302 of the Indian Penal
Code and affirmed by the High Court of Punjab and Haryana at Chandigarh
in Reference No. 4/2005 and Criminal Appeal No. 284 (DB) of 2005 by a
judgment and order dated 3.8.2005.
The prosecution case is as under:-
On 3.11.2003 in the evening, the deceased Raj Preet Kaur @ Guddi,
who is a student of IInd Standard has gone to the house of her classmate
Amarpreet Kaur, daughter of Gurbax Singh, a cousin of the complainant.
The house of the said Gurbax Singh was situated in the revenue estate of
Ramgarh, Village Shahpuria. At about 5.00 p.m., the deceased allegedly left
the house of Gurbax Singh for her own house. She was accompanied to
some extent by Amanpreet. When she crossed pakka water house,
Amarpreet left her on her own. When the deceased did not reach her house,
search was carried on. Some persons then found her dead body in the
agricultural field belonging to Appellant situated in front of his house. The
dead body was found near a Neem tree and some cotton crop were found
near the dead body. Some dry leaves were found in her hair. In her hand
some streads of human hair were also noticed. It was fully smeared with
blood. The father of the deceased on seeing the dead body called his brother
Baldev Singh and leaving him at the spot, started for the police station to
inform the police and to lodge a report. He met PW-8 S.I. Joginder Singh at
the bus stand of Village Maghania on 4.11.2003. His statement was
recorded, on the basis of which a formal First Information Report was
lodged. The Investigating Officer prepared an inquest report. It was found
that in the hands of the deceased some human hair was also found. A post
mortem examination was conducted by PW-1 Dr. Reshamchand Singh.
PW-2 disclosed that he had seen the deceased in the company of
Appellant at about 5.45 p.m. He was in his agricultural field and he came to
know about the incident only at about 8.00 a.m. on the next day. Appellant
was arrested on 12.11.2003 at a bus stop of Village Sher Khan before PW-8
Joginder Singh. He was produced before the Investigating Officer by Shri
Karamjeet Singh, Panch. An application was filed by the Investigating
Officer in the Court of Judicial Magistrate for obtaining specimen of the hair
of Appellant but he refused to give any such specimen of hair. He made a
statement before the Court which was recorded. It was marked as Exhibit
PO/I.
The prosecution in order to prove its case examined eight witnesses.
PW-1 Dr. Resham Chand Singh proved the post-mortem report Exhibit PB.
In his evidence, he stated:
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
"The length of the body was 122 cm. long dead
body of 7-8 years of female, child wearing yellow shirt,
white bunyan, legs stained with blood. Bleeding from
vulva, dryleaves in the hairs, mouth open and froth
trickling out from left angle. Eyes closed. Body in state
of rigor mortis. Multiple marks of contusions and
abrasions on the anterior bild of neck with a large
contusion over the fold of neck transverse in direction.
Face also have some abrasions. Abrasions over elbows,
knuckle present. These were all ante mortem in nature.
Condition of subject was stout. Public and Axillary hair
not grown. No development of breasts. Impression of
teeth in the lips."
Although external injuries were found on the neck which were said to
be the cause of death of the deceased, according to the doctor, the death took
place because of loss of blood. It was stated:-
"20% loss of blood may cause shock and death.
Normally in a child of 6-7 years age there may be about 2
liters blood in body. On examination of injuries it was
found that more bleeding from the injury has caused the
death. In this case more than half liter blood had
oozed..."
Karamjit Singh, father of the deceased examined himself as PW-2.
He supported his statements made in the First Information Report. PW-3
Gurmail Singh, was a resident of the same village i.e. Village Ramgarh
Shahpuria. He categorically stated that at about 5.45 \026 6.00 p.m., he found
that the deceased was catching a finger of Appellant but at that point of time
he did not think of anything. He remained in his agricultural field for the
purpose of watering the same. He came back to the village on the next
morning at about 8.00 a.m. and then came to learn that the deceased was
raped and murdered after strangulation. He, therefore, having seen them
together formed an opinion that Appellant must be the person who raped and
murdered the deceased. In his cross-examination, he categorically stated :
"\005I told to the Thanedar that Amrit Singh accused
was going by holding the finger of Rajpreet
Kaur...".
It was not suggested to him that he had any enmity with Appellant.
His evidence that the deceased was last seen with Appellant, therefore,
remain uncontroverted.
PW-6 is Dr. Sharad Kumar, Medical Officer, Incharge Mini PHC.
Beero ke kalan. He examined Appellant on 13.11.2003. He opined :
"There was nothing abnormal found which can
suggest that the accused cannot perform sexual
intercourse. He was physically and medically fit..."
PW-8 is the Investigating Officer. The witnesses stated that on the
day on which the First Information Report was lodged, the house of
Appellant was raided, but it was found locked and thus he could not be
arrested. As regards the arrest of Appellant, his statements are as under :
"On 12.11.2003 in connection with
investigation I along with other police officials
was present at Bus stop of V. Sher Khan, where
accused Amrit Singh now present in Court was
produced before me by Karamjit Singh Panch.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
The personal search of the accused was conducted,
but nothing was recovered from him and memo in
this respect Exh. PN was prepared, which was
thumb marked by the accused and attested by PW
Karamjit Singh and ASI Gurcharan Singh. I
arrested the accused..."
The learned Trial Judge relying on or on the basis of the depositions
of the prosecution witnesses came to the conclusion that Appellant was
guilty of the commission of the said offences. Upon hearing Appellant on
sentence, he was sentenced to death. The High Court in the Death Reference
made by the learned Sessions Judge as also in the Criminal Appeal filed by
Appellant herein reviewed the evidence on record, confirmed the death
sentence and dismissed the appeal, inter alia, stating:-
"...The above medical evidence consisted in the
statements of PW-1 Dr. Reshamchand Singh and PW-6
Dr. Sharad Kumar and the seat of injuries again goes a
long way to show that appellant \026 Amrit Singh, a man of
31 years of age, was not suffering from any disease. He
was found physically and medically fit. Thus, it can be
safely inferred that he was in a dominating position
whereas Rajpreet Kaur (deceased) was a girl of 7/8 years
of age studying in 2nd standard. She was coming alone to
her house after playing with her classmate Amanpreet
Kaur. On the way, the appellant caught hold of her and
then went berserk for committing rape and murder of an
innocent helpless female child. It is also established that
there were multiple marks of contusions and abrasions on
the anterior side of neck with a large contusion over the
fold of neck transverse in direction. Not only that; there
were also abrasions on her face, elbow and impression of
teeth on her lips. All these injuries were ante-mortem in
nature. Her body and pent were also found to be smeared
with excessive bleeding. Further a look at the
photographs Ex.P/4 to P/7, proved in the statement of
PW-4 Ashok Kumar, Photographer, shows that the
appellant had treated the helpless female child in a brutal
and inhuman manner."
Mr. H.L. Aggarwal, learned Senior Counsel appearing on behalf of
Appellant submitted :
(i) The prosecution cannot be said to have proved all the links in
the chain of circumstantial evidence and in that view of the
matter, the learned Sessions Judge as also the High Court
wrongly arrived at a finding that Appellant was guilty of
commission of the offence of rape and murder of the deceased.
(ii) The only evidence against Appellant being last seen with the
deceased, cannot be said to be a conclusive proof of
commission of such an offence.
(iii) The death having been caused by reason of excessive bleeding
from the private parts of the deceased, Appellant cannot have in
any event be said to have any intention to kill her and thus
sentence under Section 302 of the Indian Penal Code is not
warranted.
(iv) Although Appellant was medically examined, there is nothing
to show that any evidence was found linking the offence of rape
of the deceased with her murder.
(v) Having regard to the location of the houses near the scene of
occurrence and in view of the time of the commission of the
offence, it was improbable that the deceased did not cry out and
nobody’s attention was attracted thereto.
Our attention was also drawn to statements made by PWs. 2 and 3 to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
the effect that Appellant was arrested on 4.11.2003 itself and as he was not
produced before the Magistrate, he had sent a telegram to the Chief Justice
of the High Court complaining of his illegal detention, in regard whereto the
learned Sessions Judge as also the High Court had not paid adequate
attention.
Mr. Sanjay Jain, learned counsel appearing for Respondent, on the
other hand, submitted:-
(i) The circumstances brought on records clearly point out to the
involvement of Appellant as he was last seen with the deceased
as was stated by PW-3 and in view of the fact no reason has
been ascribed as to why he would have been implicated falsely,
the Courts below have rightly relied on evidence.
(ii) Appellant had been absconding for a long time and his house
was found to be locked by the Investigating Officer.
(iii) An application was filed by the Investigating Officer on
13.11.2003 for obtaining sample of the hairs of Appellant but
he refused to do so without assigning any reason and thus an
adverse inference against him could have been drawn.
(iv) The dead body of the deceased was found near the house of
Appellant in a cotton field belonging to Appellant, which shows
his complicity in the matter.
(v) Injuries on the neck appearing on the person of the deceased
clearly establishes that Appellant had made attempts to
strangulate her also.
The prosecution case as regards commission of a heinous offence of
rape on a minor girl and her death is not seriously disputed on behalf of
Appellant. Appellant and the deceased were residents of the same village.
Prosecution has brought enough materials on record to show the culpability
which for all practical purposes remained unrebutted. That deceased has
come to see her friend (Amanpreet Kaur) who happened to be her relation
also. She was last seen alive in the company of Appellant. It was not
suggested that PW-3 has bore any animosity towards Appellant. PW3 was
not cross-examined on vital aspects of his statement made in his
examination-in-chief. He made his statement before the villagers and also
before the Investigating Officer as soon as he came to know about the
manner in which the deceased has met with her fate.
The evidence of last seen may be relied upon or may form the basis
for a conviction which, however, would depend upon the facts and
circumstances of each case. In some cases, the Court also look for
corroborative evidence; in some cases the Court may rely fully thereupon.
In Prem Thakur v. State of Punjab, [AIR 1983 SC 61], whereupon Mr.
Aggarwal has placed strong reliance, the links of the chain were not
complete, although the prosecution case rested on circumstantial evidence.
In that case, five persons were murdered, the pattern involved in the
commission of the crime belied the conclusion that Appellant therein had
any hand in it. This Court disagreed with the findings of the High Court that
Appellant therein was present with the deceased person on the evening of
November 8 and he had been missing from there from the next morning;
which was the only circumstance which had led the High Court to conclude
that Appellant was guilty of commission of the offence beyond any shadow
of doubt. The circumstances upon which the High Court relied were
considered by this Court to be hazardous to base conviction.
In State of Rajasthan v. Smt. Kamla [AIR 1991 SC 967], this Court
again on the fact situation obtaining therein did not base its judgment of
conviction on the circumstantial evidence laid therein. A similar question
came up for consideration recently in Sunny Kapoor v. State (U.T. of
Chandigarh), [JT 2006 (11) SC 298], wherein it was observed :
"19.The appellants have been convicted on the basis of
circumstantial evidence. It is now well settled by a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
catena of decisions of this Court that for proving the guilt
of commission of an offence under Section 302 IPC, the
prosecution must lead evidence to connect all links in the
chain so as to clearly point the guilt of the accused alone
and nobody else\005"
Post mortem examination was held at 11.00 a.m. on 4th November,
2003. The time of death was said to be within 24 hours. The deceased died
of bleeding from her private parts, which indisputably was the result of
rape. Exact time as to when the occurrence took place is not known and it
would be hazardous to make any guess in this behalf. Deceased died a
painful death which would appear from impression of teeth on her lips. She
did not have even a developed body; public and axillary hairs not grown and
breasts were also not developed. Organs of generation external and internal
were that hymen was torn, complete pereneal tear, multiple vaginal
laceration, complete vault tear and uterus was infantile. No rigor mortis was
noticed. Dead body was found at or before 10.00 p.m. as her body was
brought to home at that time. There exists a controversy as to whether
Appellant was arrested immediately on 9.11.2003 or 12.11.2003. He was
indisputably suspected of commission of the offences. He was either
arrested or he fled away from his house. It was true that according to PWs.
2 and 3 he was arrested immediately whereas according to the Investigating
Officer, he was found absent from his house and the house was locked.
Sending of a telegram to the Chief Justice of the High Court is not in dispute
but the Courts below did not lay much stress thereupon as allegations made
by the grandfather of Appellant in that behalf were withdrawn at a later
stage. Appellant examined two defence witnesses who proved the fact that a
telegram was sent but later on an application was filed which was marked as
Exhibit DA, from a perusal whereof it appears that the complaint was
withdrawn by Makhan Singh, maternal grandfather of the accused. It is,
however, interesting to note that it was a former Sarpanch of the village who
caused the production of the body of Appellant before the Investigating
Officer; if latter’s statement is to be believed. The place of occurrence also
plays some importance. It was on the cotton field of Appellant himself.
Height of cotton crop according to the villagers goes upto 6 ft. The cotton
crop was in front of the house of Appellant.
Mr. Aggarwal has also drawn our attention to a suggestion made to
PW-2 that four young boys aged about 10 years were seen in the cotton field
from outside areas. If an outsider had committed the crime, she would
definitely cried out but Appellant, a neighbour and known to her was a
person of trust. She was seen to be holding Appellant’s finger. It is clear
that she was allured by Appellant to accompany him to his own field which
was near his house. We, however, do not agree with the contention of the
learned counsel for the State that in this case, the provisions of the
Identification of Prisoners’ Act will have any application. The provisions of
the said Act may not be ultra vires to the Constitution but it cannot be said
to be applicable in a case of this nature. It cannot be said to be an area
which is contemplated under the Act. Appellant had a right to give or not to
give sample of his hair. He could not have been made a witness against
himself against his will.
Offence of rape took place on an agricultural field. She might have
suffered a lot of pain. She might have resisted also. She might have been
gagged. Possibilities of some assault on her person cannot be ruled out. It
would, however, be improper to hold that he killed her intentionally.
The opinion of the learned Trial Judge as also the High Court that
Appellant being aged about 31 years and not suffering from any disease, was
in a dominating position and might have got her mouth gagged cannot be
held be irrelevant. Some marks of violence not only on the neck but also on
her mouth were found. Submission of Mr. Aggarwal, however, that
Appellant might not have an intention to kill the deceased, thus, may have
some farce. The death occurred not as a result of strangulation but because
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
of excessive bleeding. Deceased had bleeded half a liter of blood. Dr.
Reshamchand Singh, PW-1 did not state that injury on the neck could have
contributed to her death. The death occurred, therefore, as a consequence of
and not because of any specific overt act on the part of Appellant.
Imposition of death penalty in a case of this nature, in our opinion,
was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare
cases. The manner in which the deceased was raped may be brutal but it
could have been a momentary lapse on the part of Appellant, seeing a lonely
girl at a secluded place. He had no pre-meditation for commission of the
offence. The offence may look a heinous, but under no circumstances, it can
be said to be a rarest of rare cases.
Appellant, however, in any event, is an accused under Section
276(2)(f) of the Indian Penal Code.
In a case of this nature where the brutality with which the offence was
committed leading to the death of the prosecutrix, in our opinion, maximum
sentence should be imposed. Appellant, thus deserves imposition of
Rigorous Imprisonment for life.
The appeal is allowed to the above extent.