Full Judgment Text
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PETITIONER:
STATE OF TAMIL NADU ETC.PERAJMAL BALLAJI & ORS.
Vs.
RESPONDENT:
SURESH (A-2) & ANR.STATE OF TAMIL NADU & ORS.
DATE OF JUDGMENT: 05/12/1997
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
THE 5TH DAY OF DECEMBER, 1997
Present:
Hon’ble Mr.Justice M.K. Mukherjee
Hon’ble Mr.Justice K.T. Thomas
N.Natarajan, Sr.Adv., V.G.Pragasam, (S. Tripathi) Adv. for
Ms. Rani Jethmalani, Ms. Binu Tamta, Ranjit Kumar advs. with
him for the appearing parties.
J U D G M E N T
The following Judgment of the Court was delivered:
WITH
CRIMINAL APPEAL NOS. 155-156 OF 1991
THOMAS, J.
A young enceinte housewife fell from the top of a four-
storeyed building down on the payment of a street at Madras
during the odd hours on the night of 9-6-1987, and died in a
trice with her skull and the bones extensively broken into
pieces. Initially it was taken by the neighbours and the
police as a case of suicide, but eventually it became a case
of gruesome murder. Her husband, a flourishing businessman
at Madras (now Chennai) and his brother (another
businessman) and two of their employees were put on trial in
the Sessions Court for criminal conspiracy, rape and murder.
One of the culprits was made an approver and he gave
evidence in support of the prosecution case. The Sessions
Court acquitted the husband of the deceased, but convicted
the other two persons of murder and rape and sentenced both
of them to death.
A Division Bench of the High Court of Madras heard the
reference which was made under Section 366 of the Code of
Criminal Procedure on the sentence of death, along with the
appeals preferred by the appeals preferred by the convicted
persons as well as the appeal preferred by the State in
challenge of the acquittal. the Division Bench confirmed
the acquittal and set aside the conviction and sentence
passed by the Sessions Court. Hence the present appeals by
special leave.
First accused Ramesh Kumar and his younger brother
Suresh Kumar (A-2) hailed from Rajasthan, and they have
settled down in Madras. Each of them acquired separate
business establishments. Ramesh Kumar, the eldest, had
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married Kamla Devi (the deceased) who was then only 19 and
belonged to a less affluent family in Rajasthan, about four
years before her death. Thereafter the couple lived on the
top floor apartment of a multi-storeyed building situated on
Thulasinga Mudali Street at Madras. Second accused Suresh
Kumar got married to a girl from Rajasthan a few months
before the occurrence but he did not bring his wife to
Madras from Rajasthan. He too was residing with his eldest
brother Ramesh Kumar on the 4th floor of the building.
Kamla Devi (deceased) had a little child (Sandeep) who was
only 4 years old when she died.
As the business of first accused expanded he started
entertaining a feeling that if he had married from a rich
family he would have got a handsome dowry. This led to some
estrangement between the spouses. Second accused Suresh
Kumar did not see eye with Kamla Devi (deceased) for certain
reasons of his own, one among them alone has come to the
forefront in evidence that he believed that Kamla Devi was
injecting hatred in the mind of his brother that A.2 was
becoming a habitual drunkard.
In the above backdrop, the synopsis of the prosecution
case having an eerie profile, can be narrated as follows:
A couple of days prior to the death of Kamla Devi her
husband Ramesh had gone abroad (Singapore) in connection
with his business and before he left India he and the other
three culprits had entered into a criminal conspiracy to
finish Kamla Devi off during his absence. After he left,
second accused informed the remaining culprits that the best
way to achieve the target was to drop her down from the top
floor of the building so that it would appear to the rest of
the world that she had committed suicide.
On the midnight of 9-6-1987 when everybody else was
asleep the three culprits (A2-Suresh, A3-Kuman Singh and
PW1-Bhoparam) moved from the room on the 4th floor where
they were to sleep and entered the room where deceased was
sleeping with her little child Sandeep. They first gagged
her mouth with a cloth but then she woke up and
instinctively resisted the onslaughts of the assailants.
But she was overpowered and the third accused pressed her
neck and mouth on the direction of the second accused who
was holding her in his grip while she was struggling to
squirm out of the lethal grip. In that melee the bangles on
her hand broke down. PW-1 caught hold of her legs and the
second accused sexually molested her in that condition. A.3
also ravished her on being prompted by the second accused.
Though PW-1 was also persuaded to do the same on her he did
not do it as he found that she was unconscious. Then all
the three persons lifted her up and brought her to the
balcony and tried to drop her down. But somehow she
regained conclousness then and gripped on the parapet frieze
but the assallants exerted greater force in pushing her down
and she lost her grip and fell deep down from such a height
of the four storeyed building - she died instantaneously.
The entire prosecution case revolved on the solitary
evidence of the approver PW-1 Bhoparam. Learned trial judge
relied on his evidence with the aid of some corroborative
circumstances and found A2 Suresh and A3 Kuman Singh guilty
of rape and murder.
It was difficult for the High Court to act on the
evidence of the approver mainly for two distinct reasons:
(1) His version of the occurrence is fraught with
improbabilities and hence it did not inspire confidence; (2)
He being an accomplice his evidence is unworthy of credit
even otherwise, as it did not receive adequate corroboration
from any source. hence the conviction and sentence were set
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aside by the High Court.
Learned counsel for the appellant contended that the
Division bench of the High Court did not make a pragmatic
approach to the evidence of PW-1, and it resulted in the
improper rejection of the evidence of an eye witness to such
a dastardly perpetrated crime. Counsel further contended
that if strict adherence to the rule of corroboration of the
evidence of an accomplice witness is insisted, as done by
the High Court in this case, no approver evidence would
stand scrutiny in any case and the consequence would be
miscarriage of justice. Learned Judges expressed a
regretful note in the judgment by way of an epilogue in the
following lines:
"We are really pained to note that
prosecution was not able to bring
home the persons really involved in
this crime. Even though there is a
lurking doubt in our mind as to the
involvement of one or more of the
accused in this crime, they cannot
be punished on such a doubt,
however strong it might be , ....
Following the high traditions of
criminal jurisprudence in our
country, we are not inclined to
send the accused to gallows on mere
suspicion, and on the evidence of
the approver whose evidence stands
uncorroborated."
We have perused the evidence carefully and considered
the reasoning of the learned Judges, but we are unable to
persuade ourselves to concur with the judgment of the High
Court.
How Kamla Devi would have died can be inferred from the
post-mortem appearances noted by PW-22 Dr. Cecila Cyril,
(Additional Professor in the Department of Forensic Medicine
of the Medical College, Madras) who conducted the autopsy on
the dead body. The doctor found that the deceased was
pregnant by 4 weeks. After listing all the ante-mortem
injuries in Ext. P-41 (post-mortem certificate) the doctor
opined that her death might have been on account of the head
injuries as well as asphyxia due to smothering and
compression of neck. There are enough data to support the
conclusion that Kamla Devi would have been smothered by
pressing her mouth and neck. Injuries Nos.1 to 7 are
abrasions and contusions and lacerations around the lips.
Nos. 17 to 24 are similar injuries on the chin and neck and
also on the lower part of the nose. None of her teeth was
affected. Form all the above features we can unhesitatingly
accept the doctor’s opinion that Kamla Devi would have been
subjected to forceful smothering.
The skull of the dead body had extensive fractures and
brain matter was found protruding. There were fractures on
the sternum and on the ribs. While giving evidence the
doctor concurred with the suggestion of the prosecution that
"there was very good chance of the victim being alive after
sustaining the injuries due to smothering and compression of
neck when she would have been in a condition of shock.
After smothering and compression of neck she could have been
alive for a few minutes depending upon her power of
volition,"
PW-1 Bhopparam narrated the evidence which preceded and
succeeded the occurrence and gave a complete picture on the
vivid details of the occurrence. It would be unnecessary to
repeat his evidence as it is consistent with the prosecution
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story summarised above. PW-1 deposed that the neighbours
and relatives of the deceased were informed of the death of
Kamla Devi and they all arrived and her husband A-1 also
flew down from Singapore He further said that on the third
day he went o the house of his brother-in-law (PW-6) and
stayed there for 6 days and then went to Mahabalipuram (a
suburb of Madras) where he got a temporary employment in the
tea shop of Pw-15. On 24-6-1987 he happened to notice his
photo in a Tamil daily and then he rushed back to PW-6’s
house and made a shrift to him of all what happened and with
the help of Pw-6 he surrendered to the police.
The High Court seems to have accepted the contention of
the defence counsel that PW-1 would have been in police
custody from 10-6-1987 till 25-6-1987 (When he was produced
before the magistrate). The following reasons were advanced
by the high Court for accepting the said define contention.
First is, as first accused had offered money to PW-1 for
carrying out the operation PW-1 would normally have remained
in the house until the money was paid. (PW-1 could not have
remained in the same house as tension would have been
mounting up in his mind and it was only natural that he
would have moved out of that jinxed house instead of
lingering on there as money could have been collected even
at a later stage). Second is that PW-1, was unable to
remember the names of PW-6’s employees, and if was unable to
remember the names of PW-6’s employee, and if he had really
stayed in that house he could have remembered those names.
(This is too fragile a reasoning as one may or may not
remember the names of such employees particularly his mind
would then have been preoccupied with thought about the
horrendous crime committed by them). The third is that he
failed to disclose the incident to PW-6 or to his employer
Pw-15. (It is too much to expect that PW-1 would have
readily divulged it to any one else at the first instance
because the whole episode was perpetrated by the culprits in
secrecy). Fourth reason is that PW-1 did not read
newspapers during the interregnum and that indicates his
absence in the free world. (There is nothing on record to
show that this employee of A.1 was regular newspaper reader,
without which such an inference is out of place).
All the above reasons are hence very tenuous grounds
for disbelieving the version of PW-1 that he had stayed with
Pw-6 and PW-15. Learned Judges of the High Court should
have appreciated his testimony in the light of the evidence
of PW-6 and PW-15 against which nothing has been pointed out
either by the High Court or before us as to why those two
witnesses should have perjured in court about PW-1’s sojourn
with them.
The High Court did not believe the case of PW-1 that A-
2 and A-3 would have sexually ravished Kamla Devi. The sole
circumstance which learned Judges highlighted on that score
is the absence of semen or supermatozoa in the vaginal swab
collected from the dead body as the result of laboratory
analysis of the swab showed. The High Court seems to have
overlooked the following data available in the post-morterm
report which is a very telling circumstance regarding the
sexual molestation the victim would have been subjected to;
"Bruising of tissues on right side of vagina 2x1x1/2
cms. Bruising is reddish blue in colour. Bruising 1x1/2x1/2
cms. over the anterior lip of the cervix."
Dr. Cecila Cyril (PW-22) had no doubt that the above
features are consistent with the victim offering resistance
against forcible sexual intercourse. The doctor witness
emphatically repudiated the suggestion that such bruises
could have been caused in a fall. In view of the above, the
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High Court went wrong in negativing the version of PW-1
regarding sexual ravage merely on the basis of non-detection
of semen or supermatozoa in the vaginal swab. There could
be more than one explanation for absence of semen in the
vaginal swab. We have no doubt that Kamla Devi would have
been made a victim of a forcible sexual assault.
One of the points which dissuaded the High Court from
believing the version of PW-1 is the most abominable and
despicable act attributed to A.2 vis-a-vis his own sister-
in-law. High Court has stated thus on that aspect:
"Even if there was some reason for A.2 to end the life
of the deceased with a view to secure peaceful life for his
brother, certainly he would not have resorted to the most
inhuman method of committing rape on his own brother’s wife
that too, along with two of his servants."
Learned counsel for the accused also repeated the same
reasoning before us in support of his contention that such
an act of barbarity would be unthinkable and counter to the
social order for a brother to do it on his sister-in-law.
We too agree that if A.2 had done those acts attributed to
him then it would have been woeful and despicable of a human
conduct.
We have considered the said contention with the
Seriousness it deserves. One thin is clear that somebody
had done it one her during that night. Whoever had done
those acts during that night i.e. by sexually molesting her
and then dragging her and throwing her living body down from
the balcony, the assailant would have been someone who was
simmering with unquenchable grudge towards her. It is
extremely remote that a burglar or a stranger rapist would
have gatecrashed into the house and done all those
atrocities on that helpless woman when the house was
occupied by 3 adult male members. It must be remembered in
this context that even the defence had no suggestion that
the deceased had any enemy outside, for, if she had any such
enemy that fact would not have escaped from the knowledge of
her husband, if not of A.2 also. If PW-1’s version is true
A.2 had his own grudge towards the deceased. The intensity
of that grudge was known only to himself or perhaps the
deceased also. If A.2 had decided to kill his sister-in-law
in such a savagery manner by throwing her from the balcony
that itself would indicate the superlative degree of gravity
of his wrath towards her. With such a mind simmering with
acerbity he would as well have thought to subject her to
excruciating mental pain by devastating her womanhood in the
manner it was done on her. So the degree of woefulness of
the onslaught is not enough to militate against the
horrendous nature of the crime.
We are hence totally unable to agree with the view of
the High Court that the story narrated by PW-1 lacked
probability. After all PW-1 is an accomplice and hence his
narration would be incriminating to him also.
The testimony of an accomplice is, no doubt, a
stigmatised evidence in criminal proceedings. It is on
account of the inherent weakness which such evidence is
endowed with that illustration (b) to Section 114 of the
Evidence Act suggests that it is open to the court to
presume that the uncorroborated testimony of an accomplice
is unworthy of credit. But the legislature had advisedly
refrained from including the said category of evidence
within the ambit of legal presumptions but retained it only
within the area of factual presumptions by using the
expression "the court may presume". In order to make the
position clear the same enactment has incorporated Section
113 saying that it is not illegal to convict a person on the
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uncorroborated testimony of an accomplice. The raison
d’etre for such legislative marshalling is to enable the
court to have its freedom to act on the evidence of an
accomplice in appropriate cases, even without corroboration,
if the court feels that a particular accomplice evidence is
worthy of credence.
Thus, the law is not that the evidence of an accomplice
deserves outright rejection if there is no corroboration.
What is required is to adopt great circumspection and care
when dealing with the evidence of an accomplice. Though
there is no legal desirable that court seeks reassuring
circumstances to satisfy the judicial conscience that the
evidence is true.
A Bench of three judges of this Court in Dagdu and ors.
Vs. State of Maharashtra, [1977 (3) SCC 68] has laid down
the legal position after making a survey of the case law by
referring to Rameshwar vs. State of Rajasthan, [AIR 1952 SC
54] and a number of other decisions of this Court as well as
of English courts. Chandrachud...] (as the learned Chief
Justice then was) has stated for the three Judges Bench as
follows:
"There is no antithesis between
Section 133 and illustration (b) of
section 114 of the Evidence Act,
because the illustration only says
that the Court ’may’ presume a
certain state of affairs. It does
not seek to raise a conclusive and
irrebuttable presumption. Reading
the two together the position which
emerges is that though an
accomplice is a competent witness
and though a conviction may
lawfully rest upon his
uncorroborated testimony, yet the
Court is entitled to presume and
may indeed be justified in
presuming in the generality of
cases that no reliance can be
passed on the evidence of an
accomplice unless that evidence is
corroborated in material
particulars, by which is meant that
there has to be some independent
evidence tending to incriminate the
particular accused in the
commission of the crime........All
the same, it is necessary to
understand that what has hardened
into a rule of law is not hat the
conviction is illegal if it
proceeds upon the uncorroborated
testimony of an accomplice but that
the rule of corroboration must be
present to the mind of the Judge
and that corroboration may be
dispensed with only if the peculiar
circumstances of a case make it
safe to dispense with it"
This is not a cases where evidence of PW-1 is totally
bereft of any reassuring circumstance. This occurrence as
featured by Pw-1 is supported by the following
circumstances:
(1) Post-mortem appearances noted by PW-22 Dr. Cecila Cyril.
(2) broken bangles found on the floor of the room and on
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the balcony
(3) The admission of A.2 and A.3 that they along with Pw-1
wee present in the same flat during that night. [It is
quite improbable that any outsider would have made an
entry into this apartment during that night and with or
without the help of PW-1 would have made all those
atrocious acts least disturbing the sleep of her four
year old son huddling on the mother or the sleep of A.2
and A.3].
(4) The statement by PW-6 that on 24-6-1987 Pw-1 told him
of this incident in which he involved all the three
culprits.
Dealing with the last corroborative circumstance i.e.
the statement made by PW - 1 to PW - 6 on 24-6-1987, we may
have to consider the admissibility of the said statement
Section 157 of the Evidence Act reads thus:
"In order to corroborate the
testimony of witness, any former
statement made by such witness
relating to the same fact, at or
about the time when the fact took
place, or before any authority
legally competent to investigate
the fact, may be proved."
The section envisages two categories of statements of
witnesses which can be used for corroboration. First is the
statement made by a witness to any person "at or about the
time when the fact took place". The second is the statement
made by him to any authority legally bound to investigate
the fact. We notice that if the statement is made to an
authority competent to investigate the fact such statement
gains admissibility, no matter that it was made long after
the incident. But if the statement was made to a non-
authority it loses its probative value due to lapse of time.
Then the question is, within how much time the statement
should have been made? If it was made contemporaneous with
the occurrence the statement has a greater value as res
justea and then it is substantive evidence. But if it was
made only after some interval of time the statement loses
its probative utility as res justea, still it is usable,
though only for a lesser use.
What is meant by the expression "at or about the time
when the fact took place"? There can be a narrow view that
unless such a statement was made soon after the occurrence
it cannot be used for corroboration. A broader view is that
even if such statement was made within a reasonable
proximity of time still such statement can be used for
corroboration. The legislature would not have intended to
limit the time factor to close proximity though a long
distance of time would deprive it of its utility even for
corroboration purposes.
We think that the expression "at or about the time when
the fact took place" in Section 157 of the Evidence Act
should be understood in the context according to the facts
and circumstances of each case. The mere fact that there
was an intervening period of a few days, in a given case,
may not be sufficient to exclude the statement from the use
envisaged in Section 157 of the Act. The test to be
adopted, therefore, is this; Did the witness have the
opportunity to concoct or to have been tutored? In this
context the observation of Vivian Bose, J. in Rameshwar vs.
The State of Rajasthan (AIR 1952 SC 54) is apposite:
"There can be no hard and fast rule
about the ’at or about the’
condition in Section 157. The main
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test is whether the statement was
made as early as can reasonably be
expected in the circumstances of
the case and before there was
opportunity for tutoring or
concoction".
(Emphasis supplied)
Here when PW-1 disclosed to his brother-in-law (PW6) on
24-6-1987 about his version of the occurrence we have not
come across anything to indicate that PW-1 was either
tutored or influenced by anybody during the interregnum.
Looking at the statement from that perspective we are
inclined to treat it as a corroborative piece of evidence
giving us a reassurance regarding the truth of PW-1’s
evidence in court so far as the persons involved in the
episode are concerned.
Shri Ranjit Kumar, learned counsel for A.3 took much
pains to impress us that PW-1’s version that they trekked
along a cornice to reach deceased’s room, is highly
incredible as they could easily have walked through the
normal passage. PW 1 has an explanation for choosing that
circuitous route. But we are not interested to know why
they chose a longer passage to reach deceased’s room. What
we known is that they reached her room during that midnight
hour.
The above discussion takes us to the final conclusion
that the High Court has seriously erred in upsetting the
conviction entered by the Sessions Court as against A.2 and
A.3 The erroneous approach has resulted in miscarriage of
justice by allowing the two perpetrators of a dastardly
crime committed against a helpless young pregnant housewife
who was sleeping in her own apartment with her little baby
sleeping by her side and during the absence of her husband.
We strongly feel that the error committed by the High Court
must be undone by restoring the conviction passed against
A.2 and A.3, though we are not inclined, at this distance of
time, to restore the sentence of death passed by the trial
court on the those two accused.
In the result, we allow the appeals and set aside the
judgment of the High Court of Madras and restore the
conviction passed by the trial court under Section 302 and
376 read with Section 34 of the IPC as against A.2 - Suresh
and A.3 - Kuman Singh, and we sentence them each to undergo
imprisonment for life on the first count and rigorous
imprisonment for a period of 10 years on the second count.
Sentences on both counts will run concurrnetly. We direct
the Sessions Judge, Madras (now Chennai) to take immediate
steps to put the aforesaid convicted persons in jail for
undergoing the sentence