Letter of deceased which can not be treated as Dying Declaration, can not be considered as admissible evidence in the absence of corroboration = the High Court found the appellant to be guilty of the offence under Section 498A, IPC, because of some conduct or acts of the appellant of which the deceased has complained of in her letter to the Police Station on 26.03.1992. She submitted that the High Court held that the acts or conduct of the appellant amounted to cruelty for which the appellant was liable for the offence under Section 498A, IPC, but did not amount to abetment of suicide within the meaning of Section 306, IPC. She submitted that the statements of the deceased in the letter of the deceased to the Police Station (Ext.10) were not proof of the acts or conduct of the appellant in the letter and in any case these acts or conduct of the appellant did not amount to cruelty within the meaning of clauses (a) or (b) of the Explanation under Section 498A, IPC. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned. 16. In the present case also, except Ext.10, the letter written by the deceased to the Police Station on 26.03.1992, no other witness has spoken about the appellant having starved the deceased of food and having committed acts of mental cruelty to the deceased. On the other hand, the mother of the deceased (PW-3) has stated in her cross-examination: “I have not recorded in my statement before police that Amri was giving her salary to her husband. It is not true that when I went to see Amri, at that time, my daughter was crying she had food problem, I say it is false.” =in this case there is no evidence of any physical harm having been caused by the appellant to the deceased nor any acts of mental cruelty committed by him. Hence, the appellant cannot be held guilty of any cruelty within the meaning of clause (a) of the Explanation under Section 498A, IPC. In the result, we set aside the impugned judgment of the High Court and acquit the appellant of the charge under Section 498A, IPC. Since the appellant is on bail, his bail bonds be discharged.

reported http://judis.nic.in/supremecourt/imgst.aspx?filename=40593
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL No. 1567 of 2007

Kantilal Martaji Pandor                            …… Appellant

                                   Versus

State of Gujarat & Anr.                                   ….. Respondents




                               J U D G M E N T

A. K. PATNAIK, J.



      This is an appeal by way of special leave under  Article  136  of  the
Constitution against the judgment and order dated 13.09.2007 of the  Gujarat
High Court in Criminal Appeal No.294 of 1994.

FACTS
2.    The facts very briefly are that
the appellant was married to  Laxmiben
in 1980.  
The appellant, who was a teacher, used to travel in  a  bus  along
with Amriben, who was also a teacher, for their  work  in  their  respective
schools located at a distance of 2 kms. from each other.  
The appellant  and
Amriben fell in love and got married  in  1990.   
A  daughter  was  born  to
Amriben in 1991.  
The appellant, Laxmiben and Amriben were  living  together
in different portions of one house  of  the  appellant  in  village  Dhuleta Palla.  
On 26.03.1992, a letter written by Amriben was received in  Shamlaji Police Station.  
In  this  letter,  
Amriben  alleged  inter  alia  that  the
appellant was  more  interested  in  money  and  not  in  love  and  he  had
threatened and kidnapped her, although he had a wife and three children  and
the appellant had cheated her and persuaded her to have  civil  marriage  on
21.08.1990.  
She further alleged in  the  letter  that  after  marriage  the
appellant’s family was living on her salary and the  appellant  had  started
torturing her to a limit which was no longer tolerable by her  and  she  was
also not given meals and 
the appellant was threatening to kill her  and  
for
all this the appellant and his first wife  Laxmiben  and  his  other  family
members were involved.  
On 26.03.1992 in the afternoon, the  appellant  came
to the school of Amriben and enquired from the Principal of the  school  and
the teacher of Amriben as to whether Amriben had made  a  complaint  to  the
Police Station.  
That evening, the appellant who usually took  Amriben  back
from  her  school  instead  requested  the  Principal  of  her  school,  Ms.
Timothibhai, to take seat on the scooter with him and as  a  result  Amriben
had to walk along with Lilavatiben, who was holding her little daughter,  to
the bus stand.  
During the night of 26.03.1992,  the  appellant  slept  with
Laxmiben while Amriben slept with her new born daughter in another  room  of
the house.  
On 27.03.1992, early in the morning, the appellant and  Laxmiben heard the little daughter of Amriben crying and they found that Amriben  had jumped into the well and had died.

     3. A post  mortem  on  the  dead  body  of  Amriben  (for  short  ‘the
        deceased’) was conducted on 28.03.1992 at 2.30 p.m. and  the  cause
        of the death was found to be drowning.  Initially, on the report of
        the appellant, the Shamlaji Police Station registered an accidental
        death case under Section 174 of the Criminal Procedure  Code,  (for
        short ‘the Cr.P.C.’).  Subsequently, however, on 03.04.1992 an  FIR
        was registered by Shamlaji Police Station under Sections  498A  and
        306 of the Indian Penal Code (for short ‘the IPC’) in view  of  the
        allegations made by the deceased in her letter dated 26.03.1992  to
        the police station.  Investigation was carried out  and  a  charge-
        sheet was filed against the appellant and Laxmiben  under  Sections
        498A and 306, IPC.

     4. At the trial, amongst other witnesses examined  on  behalf  of  the
        prosecution, Ms. Timothibhai, Principal of the school, was examined
        as PW-1, the doctor who carried out the post mortem was examined as
        PW-2, the mother of the deceased was examined as PW-3, Lilavatiben,
        co-teacher of deceased was examined as PW-4 and  the  Investigating
        Officer was examined as PW-10.
The appellant also examined various
        witnesses in his defence.
The trial court by  its  judgment  dated
        10.02.1994  in  Sessions  Case  No.59/92  acquitted  Laxmiben,  but
        convicted the appellant under  Sections  498A  and  306,  IPC,  and
        sentenced him to simple imprisonment for one year and two years for
        the two offences respectively and also imposed a fine  of  Rs.100/-
        for each of the offences.
Aggrieved, the appellant filed  criminal
        appeal before the High Court, and by  the  impugned  judgment,  the
      High Court acquitted the appellant from the  charge  under  Section
        306, IPC,  but  maintained  the  conviction  and  sentence  on  the
        appellant under Section 498A, IPC.  
Aggrieved,  the  appellant  has
        filed this appeal.

Contentions of the learned Counsel for the parties:

     5. Learned counsel for the appellant, 
Ms. Aishwarya  Bhati,  submitted
        that in the impugned judgment,
the High Court found  the  appellant
        to be guilty of the offence under Section  498A,  IPC,  because  of
        some conduct or acts of the appellant of  which  the  deceased  has
        complained of in her letter to the Police  Station  on  26.03.1992.
       
She submitted that the High Court held that the acts or conduct  of
        the appellant amounted to  cruelty  for  which  the  appellant  was
        liable for the offence under Section 498A, IPC, but did not  amount
        to abetment of suicide within the meaning of Section 306, IPC.  
She
submitted that 
the statements of the deceased in the letter of  the deceased to the Police Station (Ext.10) were not proof of the  acts or conduct of the appellant in the letter and  in  any  case  these acts or conduct of the appellant did not amount to  cruelty  within   the meaning of clauses (a) or (b) of the Explanation under  Section   498A, IPC.

     6. Ms. Bhati submitted that the evidence of PW-3, the  mother  of  the
        deceased, would show that when the deceased was carrying the child,
        PW-3 had been to see the deceased and she did  not  find  that  the
        deceased had any food problem.  She also referred to  the  evidence
        of PW-4 to show that the appellant’s conduct was  not  such  as  to
        amount to cruelty or harassment within the meaning of  clauses  (a)
        or (b) of the Explanation of Section 498A, IPC.  She submitted that
        the post mortem report (Ext.15), on the other hand, would show that
        the deceased was well-nourished and  was  well-built  and  did  not
        suggest that she was starved of any food.

     7. Ms. Bhati cited the decision of this Court in State of West  Bengal
        v. Orilal Jaiswal & Anr. [(1994) 1 SCC 73] in  which  it  has  been
        held that the charges made against an accused under  Section  498A,
        IPC, must be proved  beyond  all  reasonable  doubt  and  that  the
        requirement of proof is not satisfied by surmises and  conjectures.
        She also cited the decision of this Court in Manju  Ram  Kalita  v.
        State of Assam [(2009) 13 SCC 330]
wherein it has  been  held  that
        for holding an accused guilty under Section 498A, IPC, it has to be
        established  that  the  woman  has  been   subjected   to   cruelty
        continuously/persistently or at least in close proximity of time to
        the lodging of the complaint and petty quarrels cannot be termed as
        “cruelty” to attract the provisions of Section  498A,  IPC,  though
        mental torture to the extent that  it  becomes  unbearable  may  be
        termed as cruelty.  She vehemently submitted that in this case  the
        prosecution  has  not  proved  beyond  reasonable  doubt  that  the
        appellant was in any way guilty of any act or conduct which  is  of
        the nature described in clauses (a) and (b) of Section  498A,  IPC,
        so as to amount to cruelty within the meaning of this Section  and,
        therefore, the appellant is entitled to be acquitted by this  Court
        of the charge under Section 498A, IPC.

     8. Ms. Pinky Behera, learned counsel  appearing  for  the  respondent-
        State, on the other hand, relied on Ext.10,  which  is  the  letter
        written by Amriben to Shamlaji Police Station on 26.03.1992 to  the
        Police Station and submitted that there was sufficient evidence  in
        Ext.10 to show that the appellant had  treated  the  deceased  with
        cruelty within the meaning of Section 498A, IPC.  She  also  relied
        on the findings of the High Court in paragraph 15 of  the  impugned
        judgment in which the High Court has found the appellant guilty  of
        the offence punishable under Section  498A,  IPC.   She  vehemently
        argued that even though the High Court has found that the appellant
        was not guilty of abetment of suicide within the meaning of Section
        306, IPC, the appellant can still be held liable  for  the  offence
        under Section 498A, IPC,  if  he  had  committed  acts  of  cruelty
        towards the deceased.  In support of this contention, she relied on
        the decision of this Court in West Bengal v. Orilal Jaiswal &  Anr.
        (supra).

Findings of the Court:

     9. Section 498A, IPC, under which the appellant’s conviction has  been
        maintained by the High Court is extracted hereinbelow:


      “498A. Husband or relative of husband of a  woman  subjecting  her  to
      cruelty.-- Whoever, being the husband or the relative of  the  husband
      of a woman, subjects such woman to  cruelty  shall  be  punished  with
      imprisonment for a term which may extend to three years and shall also
      be liable to fine.


      Explanation.- For the purposes of this section,        "cruelty" means-




      (a) any wilful conduct which is of such a nature as is likely to drive
      the woman to commit suicide or to cause  grave  injury  or  danger  to
      life, limb or health (whether mental or physical) of the woman; or


      (b) harassment of the woman where such harassment is with  a  view  to
      coercing her or any person related to her to meet any unlawful  demand
      for any property or valuable security or is on account of  failure  by
      her or any person related to her to meet such demand.”

    10.  It will be clear from the language of Section 498A, IPC, that if a
        husband subjects his wife to cruelty, he  shall  be  punished  with
        imprisonment for a term which may extend to three years  and  shall
        also be liable to fine.  The Explanation under Section 498A defines
        “cruelty” for the purpose of Section 498A to mean any of  the  acts
        mentioned in clause (a) or clause (b).  In this case, clause (b) is
        not attracted as there was no harassment by the husband with a view
        to coercing her to meet any unlawful demand  for  any  property  or
        valuable security or on account of failure  by  her  to  meet  such
        demand.

    11. The first limb of clause (a) of the Explanation  of  Section  498A,
        IPC, states that “cruelty” means any wilful  conduct  which  is  of
        such a nature as is likely to drive the woman  to  commit  suicide.
        In the present case, although the trial court found  the  appellant
        guilty of conduct which had driven the deceased to  commit  suicide
        and hence liable for the  offence  of  abetment  of  suicide  under
        Section 306, IPC, the High Court  has  given  a  clear  finding  in
        paragraph 13 of the impugned judgment that the  conviction  of  the
        appellant under Section 306, IPC, cannot be sustained in the eye of
        law and the appellant deserves to be acquitted  of  the  charge  of
        abetment of suicide under Section  306,  IPC.   This  part  of  the
        finding has not been challenged by the State in appeal before  this
        Court and has, therefore, become final.  Thus, the appellant cannot
        be held guilty of any wilful conduct which was of such a nature  as
        is likely to drive the deceased to commit suicide.

    12.  The second limb of clause (a) of the Explanation of Section  498A,
        IPC, states that cruelty means any wilful conduct which is of  such
        a nature as to cause grave injury or danger to life, limb or health
        (whether mental or physical) of the woman.  In  the  present  case,
        the High Court has recorded findings against the appellant to  hold
        him guilty of the offence under Section 498A, IPC,  presumably  for
        “cruelty” which falls within the second limb of clause (a)  of  the
        Explanation under Section 498A, IPC.  The relevant findings of  the
        High Court in paragraph 15 of the impugned judgment  are  extracted
        hereunder:

          “As discussed earlier, permitting to enter his first wife in  the
          house of deceased Amariben with new born child, is an act of  the
          appellant – accused, which can be said to be a  cruel  act.   The
          document Exhibit 10 indicates that she was financially  exploited
          and the demand of money were made  by  the  appellant  –  accused
          frequently.  She has stated that on  account  of  this,  she  was
          falling in starving.  It is not in evidence that this  Court  can
          notice on one fact based on biological reasons assigned that  the
          pregnant lady or lady, who has given birth to  child,  need  more
          food, as such women are feeling more  hungry  then  other  normal
          women.  She was facing very  much  financial  problem  and  there
          should be possibility to  go  into  depression  and  the  present
          appellant – accused was the responsible person for creating  this
          situation.  The deceased was dropped woman, but  self-respect  is
          privilege of each  individuals.   The  accused  depended  on  the
          income of deceased Amariben after performing second marriage with
          her and was under legal as well as moral obligation to  see  that
          she may be treated well and may not be felt to insult or  ignore.
          It is settled position that the cruelty includes mental  cruelty,
          physical marks falls over the body are not required to be  proved
          by the prosecution.  The date of the application received by  the
          police is 26.3.1992 and the evidence of PW-1 also  show  that  on
          26.3.1992 the appellant-accused had come to the school to inquire
          whether the deceased Amariben had  made  an  application  to  the
          Principal of school or not. He must have been frightened that the
          deceased may complain  genuinely  to  the  school  authority  and
          Government and he may lose the job or at least, may  invite  some
          departmental action,  so  anxiety  of  the  appellant-accused  is
          found, which is exposed in  the  deposition  of  PW-1.  When  the
          deceased Amariben felt in creating apprehension in the mind  that
          she may be killed by her husband is sufficient to  conclude  that
          the wife must have been treated with cruelty either  mentally  or
          physically or both types of cruelty and that too frequently  made
          otherwise the defence ought to have prove that she was a  patient
          of depression.   No such suggestive evidence made to  the  school
          teacher or other  witness  including  mother.   Meaning  thereby,
          there is sufficient  evidence  to  show  that  the  deceased  was
          treated with cruelty and that had  led  her  to  frustration  and
          thereafter, depression, this is not an act  of  commission  of  a
          lady with child. She had decided to jump into  the  well  leaving
          the child and accused behind, therefore, the act of  the  suicide
          appears to be intentional act to get rid of the frequent  insult,
          ignorance and exploitation. The learned Trial Judge  has  rightly
          linked the accused with  the  offence  punishable  under  Section
          498A. There is no error in evaluating  the  evidence  so  far  as
          cruelty is concerned.

    13.  Obviously, the finding of the High Court that permitting the first
        wife to enter the house of deceased Amriben  with  new  born  child
        amounts to  a cruel act is erroneous as such act cannot  amount  to
        cruelty within the meaning of second limb  of  clause  (a)  of  the
        Explanation under Section 498-A, IPC.   However,  the  High  Court,
        relying on the letter written by the deceased to the Police Station
        on 26.03.1992 (Ext.10),  has  also  come  to  a  finding  that  the
        appellant had starved the deceased of food when she was pregnant by
        spending the salary earned by the deceased on his  own  family  and
        had also subjected the deceased to other acts of mental cruelty.

    14. The question that we have, therefore,  to  decide  is  whether  the
        Court could have arrived at this finding  that  the  appellant  has
        starved the deceased and committed various acts of  mental  cruelty
        towards the deceased only on the  basis  of  the  contents  of  the
        letter dated 26.03.1992 written  by  the  deceased  to  the  Police
        Station.  The letter written by the deceased on 26.03.1992 could be
        relevant only under Section 32(1) of the Indian Evidence Act, 1872,
        which provides that a statement, written  or  verbal,  of  relevant
        facts made by a person who is dead, is relevant when the  statement
        is made by a person as to the cause of his death, or as to  any  of
        the circumstances of the transaction which resulted in  his  death,
        in cases in which the cause  of  that  person’s  death  comes  into
        question.  The High Court in the present case has already held that
        the appellant was  not  guilty  of  abetting  the  suicide  of  the
        deceased and was,  therefore,  not  guilty  of  the  offence  under
        Section 306, IPC.  As the cause of the death of the deceased is  no
        more in question in the present case, the statements  made  by  the
        deceased in the letter  dated  26.03.1992  to  the  Police  Station
        cannot be taken  to  be  proof  of  cruel  acts  committed  by  the
        appellant for the purpose of holding him guilty under Section 498A,
        IPC.

    15.  For taking this view, we are supported by  the  decision  of  this
        Court in Inderpal v. State of M.P. [(2001) 10 SCC  736].   In  this
        case, Inderpal was charged and tried for the offence under  Section
        306, IPC, and convicted by the trial court for the said offence  of
        abetment of suicide.  In appeal filed by Inderpal, the  High  Court
        found that the offence under Section 306, IPC, was not made out  as
        it could not be  held  that  death  of  the  deceased  was  due  to
        commission of suicide, but the High Court held the appellant guilty
        of the offence under Section 498A, IPC.  This finding of  the  High
        Court was based on the evidence of the father, mother,  sister  and
        another relative of the deceased who deposed on the basis of  inter
        alia the two letters (Exhibits P-7 and P-8) written by the deceased
        Damyanti that Inderpal, her husband, had subjected her to  beating.
        This Court found that apart from the statement  attributed  to  the
        deceased, none of the witnesses had spoken of anything  which  they
        had seen directly and the question that this Court  had  to  decide
        was whether the statement attributed to the deceased could be  used
        as evidence including the contents of Exts.P-7  and  P-8  and  this
        Court held that the contents of Exts. P-7 and P-8  written  by  the
        deceased could not be treated as proof of the acts  of  cruelty  by
        Inderpal for the purpose of offence under Section 498A,  IPC.  
The
        reasons given by this Court in  paragraph  7  of  the  judgment  as
        reported in the SCC are as follows:
       “7.  Unless the statement of a dead  person  would  fall  within  the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence.
In  order
       to make the statement of a dead person admissible in law (written  or
       verbal) the statement must be as to the cause of her death or  as  to
       any of the circumstance of the transactions  which  resulted  in  her
       death, in cases in which the cause of death comes into  question.  
By
       no stretch of imagination can the statements of Damyanti contained in
       Exhibit P-7 or Exhibit P-8 and  those  quoted  by  the  witnesses  be
       connected with any circumstance of the transaction which resulted  in
       her death. 
Even that apart, when we are dealing with an offence under
       Section 498-A IPC disjuncted from the offence under Section  306  IPC
       the question of her death is not an issue for  consideration  and  on
       that premise also Section 32(1) of the Evidence Act will stand at bay
       so far as these materials are concerned.


    16.  In the present case also, except Ext.10, the letter written by the
        deceased to the Police Station on 26.03.1992, no other witness  has
        spoken about the appellant having starved the deceased of food  and
        having committed acts of mental cruelty to the  deceased.   On  the
        other hand, the mother of the deceased (PW-3)  has  stated  in  her
        cross-examination:

          “I have not recorded in my statement before police that Amri  was
          giving her salary to her husband.  It is not  true  that  when  I
          went to see Amri, at that time, my daughter was  crying  she  had
          food problem, I say it is false.”



    17.   This being the evidence of the mother of the deceased,  the  High
        Court could not have come to the conclusion that the  deceased  was
        subjected to financial exploitation and starving and mental cruelty
        by the appellant.
Unlike the case  of  State  of  West  Bengal  v.
        Orilal Jaiswal & Anr. (supra) cited by Ms. Behera  
in  which  there
        was evidence of the husband  coming  home  drunk  and  abusing  and
        assaulting the deceased wife, 
in this case there is no evidence  of
        any physical harm having  been  caused  by  the  appellant  to  the
        deceased nor any acts of mental cruelty committed by  him.   
Hence,
        the appellant cannot be held  guilty  of  any  cruelty  within  the
        meaning of clause (a) of the Explanation under Section 498A, IPC.

    18. In the result, we set aside the impugned judgment of the High Court
        and acquit the appellant of the charge  under  Section  498A,  IPC.
        Since the appellant is on  bail,  his  bail  bonds  be  discharged.



                                                       ..……………..……………………….J.
                                            (A. K. Patnaik)





                                                      ...…………..………………………..J.
                                               (Sudhansu Jyoti Mukhopadhaya)

New Delhi,
July 25, 2013.

Death penalty to imprisonment for life; circumstantial evidence; confession before police inadmissible but recovery part is admissible = We are, therefore, convinced that the ultimate conviction of the appellant under Section 302 of IPC and the sentence of life imprisonment imposed on him by commuting the death penalty imposed by the trial Court, was perfectly justified and we do not find any good grounds to interfere with the same. The appeal fails and the same is dismissed.; confessional statement= “16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression “accused of any offence” in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. 19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.”

                                    reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40591
                              Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1575 OF 2009



ANUJ KUMAR GUPTA @ SETHI GUPTA               …APPELLANT


                             VERSUS

STATE OF BIHAR                               …RESPONDENT


                             J U D G M E N T


FAKKIR MOHAMED IBRAHIM KALIFULLA, J.


   1. This appeal is directed against the judgment  of  the  High  Court  of
      Patna at Bihar dated 02.11.2007, passed in Criminal Appeal  No.690  of
      2005.  The said appeal was disposed  of  along  with  Criminal  Appeal
      No.606/2005, as well as Death Reference No.8 of 2005.

   2. To trace the brief facts, the deceased Chhotu Kumar Das @ Abhinav  Das
      (hereinafter referred to as  ‘Chhotu’)  son  of  the  informant  Gopal
      Prasad Das (PW-6), left his house on 21.04.2002 at  about  8.15  p.m.,
      for visiting a local Mela, which was held every year in the village on
      the eve of Ram Navami.  Thereafter, he could not be traced inspite  of
      a search by his parents and, therefore, a written report was submitted
      by PW-6 at the police station on  22.04.2002  at  10.30  a.m.  briefly
      narrating the circumstances in which the deceased could not be traced.
       No suspicion was raised against any person for the  disappearance  of
      the deceased.

   3. Based on the written report, the police registered  the  FIR  in  P.S.
      Case  No.39/2002  and   proceeded   with   the   investigation.    The
      investigation was carried out by PW-9, the  Sub-Inspector  of  Police.
      In the course of the investigation, he  came  across  some  suspicious
      materials against the  appellant  by  some  of  the  witnesses.  PW-9,
      therefore, interrogated the appellant on 22.04.2002, whereafter he was
      arrested. The appellant  made  a  confessional  statement  before  the
      police on 23.04.2002 and based on the admissible portion of  the  said
      confessional statement, the dead body of the  deceased  was  recovered
      from a river known as Maldiha Dhar. 
The co-accused Arun Mandal @  Arun
      Kumar Mandal was also arrested, while  another  accused  Sudhir  Kumar
      Mandal could not be apprehended on that day.
The inquest of the  body
      was prepared  on  24.4.2002  at  5.00  p.m.  and  the  postmortem  was
      conducted by PW-10.
 It was based  on  the  above  investigation,  the
      prosecution proceeded against  the  appellant  along  with  the  other
      accused, namely, Girendra Gupta, Arun Mandal  and  Sudhir  Mandal  for
      offences under Sections 364(A), 302, 201 and 120-B IPC.

   4. The appellant and the co accused pleaded innocence and the trial Court
      proceeded with the case.
The prosecution  examined  PWs-1  to  10  on
      their side.
 In the 313  questioning,  the  appellant  and  the  other
      accused made a total denial.
The trial Court  based  on  the  evidence
      placed before it reached the conclusion that the appellant and the co- accused Arun  Mandal,  were  guilty  of  the  offences  falling  under Sections 364(A), 302, 201 and 120-B, IPC and imposed death penalty  on  them and in the light of the  said  sentence  held  that  no  separate sentence was passed against them.  
The other accused, namely, Girendra
      Gupta and Sudhir Mandal, were acquitted of all  the  offences  charged
      against them.

   5. By virtue of the death penalty imposed, the Death  Reference  No.8  of
      2005 came to be dealt with by the High Court along  with  the  appeals
      preferred by the appellant being Criminal Appeal No.690/2005  and  the
      other appeal preferred by  the  co-accused  Arun  Mandal  in  Criminal
      Appeal No.606/2005.  The High Court by the  judgment  impugned,  while
      upholding the conviction imposed on the appellant held that no offence
      was made out as against Arun Mandal and he was acquitted  of  all  the
      charges.
As far as the appellant was concerned, while  affirming  the
      conviction, the High Court commuted the death sentence to imprisonment
      for life for the offence under Section 302 IPC and held that there was
      no sufficient evidence to hold him guilty of the charge under  Section
      364 and 120-B IPC. He was found guilty of charges under  Sections  302
      and 201 IPC.

   6. We heard Ms. Rakhi Ray, Amicus Curiae for the appellant and Mr.  Sanat
      Tokas, learned counsel representing Mr. Gopal Singh,  learned  counsel
      for the State.  Learned counsel for the appellant in  her  submissions
      was mainly contending  that  this  case  being  one  purely  based  on
      circumstantial evidence, the reliance placed upon by the trial  Court,
      as well  the  High  Court  on  the  confessional  statement   of   the
      appellant  made  to   the   investigating officer  PW-9  cannot  stand
      and, therefore, the conviction and sentence imposed on  the  appellant
      is liable to be set aside.   The  learned  counsel  was  not  able  to
      address any other submission, while attacking the judgment impugned in
      this appeal.

   7. Learned counsel for the State would contend that the trial  Court,  as
      well as the High Court have gathered the chain of circumstances, which
      led to the killing of the deceased by  the  appellant  and  since  the
      chain of circumstances was complete in every respect,  the  conviction
      and sentence imposed on the appellant does not call for  interference.
      Learned counsel for the State also contended that the trial Court,  as
      well as the High Court have only placed  reliance  on  the  admissible
      portion of the confessional statement of the appellant made  to  PW-9,
      the investigating officer.

   8. Having considered the respective submissions of  the  learned  counsel
      and having perused the judgment of the Division Bench, as well as  the
      trial Court and all other material  papers,  we  find  that  the  only
      contention of the learned counsel for the appellant  was  that  merely
      based on the confessional statement of  the  appellant  to  PW-9,  the
      Investigating officer, the conviction came to be imposed and the  same
      was not in consonance with law.

   9. When we examine the case on hand,  we  find  that  there  was  no  eye
      witness  to  the  occurrence.
The  whole  case  is  based   on   the
      circumstantial evidence, therefore, our only endeavour is to find  out
      whether the chain of circumstance noted by the trial Court, as well as
      the High Court was complete without any disruption in order to confirm
      the conviction and sentence imposed on the appellant.

  10. As far as the admissibility of the confessional statement made by  the
      appellant to the investigating officer PW-9 was concerned, the law  on
      this aspect is quite clear, which we  wish  to  explain  at  the  very
      outset and before examining  the  chain  of  circumstances  noted  and
      explained in the judgment impugned.

  11. As far as the admissibility of the confessional statement made  by  an
      accused to the police officer is concerned, the law is  well  settled,
      which can be succinctly stated  by  making  reference  to  an  earlier
      decision of this Court in Bheru Singh v. State of Rajasthan - 1994 (2)
      SCC 467.  In the said decision,  paras  16  and  19  can  be  usefully
      referred, which read as under:
      “16. A confession or an admission is evidence against the maker of  it
      so long as its admissibility is not excluded by some provision of law.
      Provisions of Sections 24 to 30 of the Evidence Act and of Section 164
      of the Code of Criminal Procedure deal with confessions. By virtue  of
      the provisions of Section 25 of the Evidence Act, a confession made to
      a police officer under  no  circumstance  is  admissible  in  evidence
      against an accused. The section deals with confessions made  not  only
      when the accused was free and not in police custody but also with  the
      one made by such a person before  any  investigation  had  begun.  The
      expression “accused of any offence” in Section 25 would cover the case
      of an accused who has since been put on trial, whether or not  at  the
      time when he made the confessional statement, he was under  arrest  or
      in custody as an accused in that case or  not.  Inadmissibility  of  a
      confessional statement made to a police officer under  Section  25  of
      the Evidence Act is based on the ground of public policy.  Section  25
      of the Evidence Act not only bars proof of admission of an offence  by
      an accused to a police officer or made by him while in the custody  of
      a police officer but also the admission contained in the  confessional
      statement of all incriminating facts relating to the commission of  an
      offence. Section 26 of the Evidence Act deals with partial ban to  the
      admissibility of confessions made to a  person  other  than  a  police
      officer but we are not concerned with it in this case. Section  27  of
      the Evidence Act is in the nature of a proviso or an exception,  which
      partially lifts the ban imposed by Sections 25 and 26 of the  Evidence
      Act and makes admissible so  much  of  such  information,  whether  it
      amounts to a confession  or  not,  as  relates  to  the  fact  thereby
      discovered, when made by a person  accused  of  an  offence  while  in
      police custody. Under Section 164 CrPC a statement or confession  made
      in the course of an investigation, may be recorded  by  a  Magistrate,
      subject to the safeguards imposed by the section  itself  and  can  be
      relied upon at the trial.

      19. From a careful perusal of this first information  report  we  find
      that it discloses the motive for the murder and the  manner  in  which
      the appellant committed the six murders. The  appellant  produced  the
      bloodstained sword with  which  according  to  him  he  committed  the
      murders. In our opinion the first information report Ex. P-42, however
      is not a wholly confessional statement, but only that part  of  it  is
      admissible in evidence which does not amount to a  confession  and  is
      not hit by the provisions of Section  25  of  the  Evidence  Act.  The
      relationship of the  appellant  with  the  deceased;  the  motive  for
      commission of the crime and the presence of his sister-in-law PW 11 do
      not amount to the confession of committing any crime. Those statements
      are non-confessional in nature and can be used against  the  appellant
      as evidence under Section 8 of the Evidence Act.  The  production  and
      seizure of the sword by the appellant at the police station which  was
      bloodstained, is also saved by the provisions  of  the  Evidence  Act.
      However, the statement that the sword had  been  used  to  commit  the
      murders as well as the manner  of  committing  the  crime  is  clearly
      inadmissible in evidence. Thus, to  the  limited  extent  as  we  have
      noticed above and save to that extent only the other  portion  of  the
      first information report Ex. P-42 must be excluded  from  evidence  as
      the rest of the statement amounts  to  confession  of  committing  the
      crime and is not admissible in evidence.”

                                                           (Emphasis added)
  12. In this context we can also refer to a recent decision of  this  Court
      in Sandeep v. State of Uttar Pradesh - 2012 (6) SCC 107.  In para  52,
      the legal position as regards the admissibility of some  part  of  the
      statement of the accused, which can be treated as admission  has  been
      explained as under in para 52:

      52. We find force in the submission of the learned Senior Counsel  for
      the State. It is quite common that based on admissible portion of  the
      statement of the accused whenever and wherever  recoveries  are  made,
      the same are admissible in evidence and it is for the accused in those
      situations to explain to the satisfaction  of  the  court  as  to  the
      nature of recoveries and as to how they came into  possession  or  for
      planting the same at  the  places  from  where  they  were  recovered.
      Similarly, this part of the  statement  which  does  not  in  any  way
      implicate the accused but is mere statement of facts would only amount
      to mere admissions which can be relied upon for ascertaining the other
      facts which are intrinsically connected with the occurrence, while  at
      the same time, the same would not in any way result in implicating the
      accused in the offence directly.
                                          (Emphasis added)


  13. Since the confessional statement was  made  before  the  investigating
      officer  (PW-9),  it  is  necessary  to  note
what  exactly  was  the
      confession stated to have been made, which enabled the IO to make some
      progress in his investigation.
According  to  PW-9,  he  recorded  the
      confession of the appellant at 11.30  p.m.  on  23.04.2002.   He  also
      stated that based on the information furnished by  the  appellant,  he
      also arrested Arun Mandal  who  also  made  a  confession,  which  was
      identical to the one made by the appellant.
Though PW-9  would  refer
      to very many statements alleged to have been admitted by the appellant
      and co-accused Arun Mandal,
  in our considered opinion, the  only  part
      of the admission, which can be noted and accepted as admissible in the evidence related to the identification of the  place  where  the  dead body of the deceased Chhotu was found, based on the admission  of  the appellant and the co-accused.

  14. Insofar as the said part of the evidence of PW-9 read along  with  the
      admission found in Exhibits-4 and 5 is concerned, it has come  out  in
      evidence that the appellant was taken to the place called Maldiha Dhar
      (a river stream) along with PW-4, the paternal uncle of  the  deceased
      where the dead body of the deceased  Chhotu  was  recovered  from  the
      water of Maldiha Dhar.  PW-9 stated that since Maldiha  Dhar  (stream)
      fell within the jurisdiction of Barhara P.S., of district  Purnea,  he
      could not immediately lift the body from that place, that he left  the
      dead body at that very place under the protection of armed forces and,
      therefore, after getting necessary official clearance,  the  body  was
      handed over to the police station of his jurisdiction and the same was
      sent for carrying out necessary post mortem. PW-4 in his evidence also
      corroborated the above  said  version  of  PW-9  by  stating  that  he
      proceeded along with PW-9, as guided by the appellant and  co  accused
      Arun Mandal and that they reached the place Maldiha  Dhar,  where  the
      dead body was found as pointed out by the appellant  and  co  accused.
      He also stated that he identified the dead body as that of his nephew,
      Chhotu the deceased.  He further stated that the eyes of the dead body
      were open, the tongue was protruding out and that there were marks  of
      throttling in the neck of the deceased.

  15. From the above evidence of PW-9, supported by the version of PW-4,  it
      has come to light that at the instance of the appellant  and  the  co-
      accused Arun Mandal, the body of the  deceased  Chhotu  was  recovered
      from Maldiha Dhar (river stream) and that it was noted  at  that  time
      the eyes of the dead body and the tongue were protruding  out.   There
      were also signs of marks on the neck of the deceased Chhotu.  The said
      part of the confessional statement as recorded by PW-9, cannot be said
      to straightaway implicate the appellant  and  the  co-accused  to  the
      killing of the deceased.  Leaving aside the rest of the  part  of  the
      admission, the identity of the place at the instance of the  appellant
      and the co-accused, as to where the dead  body  of  the  deceased  was
      lying, which was exclusively within the knowledge  of  the  appellant,
      was certainly admissible by virtue of the application  of  Section  8,
      read along with Section 27 of the Evidence Act.

  16. In such circumstances, in the absence of  any  convincing  explanation
      offered  on  behalf  of  the  appellant  accused  as  to  under   what
      circumstances he was able to lead the Police party to the place  where
      the dead body of the deceased was found, it will have to be held  that
      such recovery of the dead body, which is a very clinching circumstance
      in the case of this nature, would act  deadly  against  the  appellant
      considered along with rest of the circumstances  demonstrated  by  the
      prosecution to rope in the appellant  in  the  alleged  crime  of  the
      killing of the deceased.
Therefore,  once  we  find  that  there  was
      definite admission on behalf of the appellant by which the prosecuting
      agency was able to recover the body of  the  deceased  from  a  place,
      which was within the special knowledge  of  the  appellant,  the  only
      other aspect to be examined is whether the appellant came forward with
      any  convincing  explanation  to  get   over   the   said   admission.
      Unfortunately though the above incriminating circumstance was  put  to
      the appellant in the 313 questioning where he had  an  opportunity  to
      explain,  except  a  mere  denial  there  was  no   other   convincing
      explanation offered by him.

  17. Thus, we reach a conclusion that the said circumstance of recovery  of
      the body of the deceased from the place called Maldiha Dhar  (a  river
      stream) at the instance  of  the  appellant  as  spoken  to  by  PW-9,
      supported by the evidence of PW4, we have to only see whether rest  of
      the circumstances considered by the trial Court, as well as  the  High
      Court, were sufficient to  confirm  the  ultimate  conviction  of  the
      appellant and the sentence imposed on him.  On  this  aspect  when  we
      perused the judgment of the trial Court, as well as  the  High  Court,
      the following circumstances have been found to be established:

      (i) PW-1 referred to the factum of the appellant attempting to ride  a
      motorcycle in a narrow lane opposite to the shop of PW-1 and that when
      PW-1 advised him that vehicle cannot pass through the  said  lane  the
      appellant parked the said motorcycle near the shop of  PW-1  and  went
      away to Thakurbari on foot;

      (ii) PW-1 was asked by the father of the accused who was also  arrayed
      as A-3, namely, Girendra Gupta who requested PW-1 not to  divulge  the
      said fact about the parking of the motorcycle to anyone;

      (iii) According to PW-4, the uncle of the  deceased,  while  he  along
      with others were searching for the deceased he was informed by an  old
      lady that she saw two persons going in a motorcycle with a boy sitting
      in between them though she could not  identify  any  of  them  due  to
      darkness.

      (iv) The deceased who went to attend the Mela at about 8 or 9 p.m.  on
      21.04.2002 did not return back as spoken to by    PW-7.

      (v) The body of the deceased was recovered from Maldiha Dhar (a  river
      stream) based on the identification of the appellant.

      (vi) When the body was recovered it was noted  that  the  eyeball  was
      bulging out and the tongue was protruding out apart from bruises noted
      on both sides of the neck.

      (vii) The postmortem report of PW-10 confirms that the  death  of  the
      deceased was  due  to  asphyxia  by  strangulating  the  neck  of  the
      deceased. The said postmortem report also made it clear  that  eyeball
      was bulging and the tongue was protruding out  and  the  abrasions  on
      both sides of the neck were also noted.

      (viii) The admissible version of the  confessional  statement  of  the
      appellant also revealed that his father A-3 asked PW-1 not to disclose
      the fact about the parking of a motorcycle of the appellant  near  his
      shop.

      (ix) The recovery of the motorcycle bearing registration No.BR-39 0148
      used by the appellant at the instance of the appellant from his  house
      which was marked as Ext.8.

      (x) PW-10 the postmortem doctor in the course of the cross-examination
      confirmed that he could mention the cause of death with certainty  and
      that in any case it was not a case of drowning.




  18. The above circumstances having been found to be fully established, the
      conclusion of the trial Court, as well  that  of  the  High  Court  in
      holding that the chain of circumstances was complete in every  respect
      in order to lead  to  the  only  conclusion  that  the  appellant  was
      squarely responsible  for  the  killing  of  the  deceased,  was  well
      justified. Though the learned counsel for the appellant  attempted  to
      point out some discrepancy in the matter of arrest of Arun Mandal  and
      recording of the alleged confessional statement of the appellant under
      Ext.4, pursuant to which the body was traced out, we are of  the  view
      that the said discrepancy was a very trivial one and on that score  we
      do not find any scope to dislodge the findings of the Courts below.
We
      are,  therefore,  convinced  that  the  ultimate  conviction  of   the
      appellant  under  Section  302  of  IPC  and  the  sentence  of   life
      imprisonment imposed on him by commuting the death penalty imposed  by
      the trial Court, was perfectly justified and we do not find  any  good
      grounds to interfere with the same. The appeal fails and the  same  is
      dismissed.


                                                     ………….……….…………………………..J.
                                    [A.K. Patnaik]








                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 July 24, 2013.

The medical evidence also to a large extent confirmed that the deceased Radha Bai was raped prior to the suicide committed by her. = The appellant, who was initially charged under Section 306 and 376(2)(f) IPC, was convicted by the trial Court only for the offence under Section 376(1) IPC and was imposed with the punishment of 10 years rigorous imprisonment, along with the fine of Rs.500/- and in default of the payment of fine to undergo one more year’s rigorous imprisonment.= Having regard to our above conclusion, we do not find any merit in the appeal. The appeal fails and the same is dismissed.

           reported in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40590                                                 

  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2260 OF 2009

KAILASH                                            …APPELLANT

                             VERSUS
STATE OF M.P.                                      …RESPONDENT

                             J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA, J.

   1. This appeal by the sole accused is directed against the  Single  Bench
      decision of the High Court  of  Madhya  Pradesh,  Indore  Bench  dated
      08.09.2006, passed in Criminal Appeal No.1030 of 2003.
The  appellant,
 who was initially charged under Section 306  and  376(2)(f)  IPC,  was convicted by the trial Court only for the offence under Section 376(1) IPC  and  was  imposed  with  the  punishment  of  10  years  rigorous  imprisonment, along with the fine of Rs.500/- and in  default  of  the  payment of fine to undergo one more year’s rigorous imprisonment.

   2. The  brief  facts  which  are  required  to  be  stated  are  that  on
      23.07.2002, PW-2 - the mother of the deceased, when she returned  from
      her day’s work in the field  at  6  p.m.,   found  her  daughter,  the
      deceased Radha Bai, who had returned back from the field at  around  3
      O’clock, inside the house  with  the  door  locked  from  inside.  
One
      Parmanand climbed the roof and found the  deceased  hanging  from  the
      roof with a Saree. 
The said Parmanand stated to have opened the  door,
      cut the rope and brought the body down. 
PW-1 reported  the  matter  to
      Aagar Police Station  and  thereafter,  PW-9  went  to  the  place  of
      incident and prepared the sketch map Ext.P-8 and sent the dead body of
      the deceased for postmortem. 
He also    stated   to   have   recovered
      the  Saree   under   seizure  letter
Ext.P-10.

   3.  The  postmortem  was  conducted  by  PW-4,  Dr.  Shashank  Saxena  on
      24.07.2002, at 3.45 p.m and in the postmortem report the doctor  noted
      that the deceased was aged about 15 years, that below the  neck  there
      was mark of bluishness and on the ligetcher mark, there were marks  of
      abrasion and on one side of the ligetcher mark, ecmoyosis was present.
     
From the vagina of the body blood  was  found  oozed  out,  which  was
      frozen and spread over in the midst of the legs on the front side.  On
      inspecting the vagina, it was found that it was reddish, congested and
      frozen blood was present.
 Laceration on the wall of the vagina of 1 cm
      size was also noted. 
The doctor in his opinion stated that  the  cause
      of the death of the deceased was due to stoppage of  breathing,  which
      was due to hanging and the injuries which were present on the body  of
      the deceased were antemortem. 
The  doctor  stated  to  have  collected
      blood stained clothes of the deceased, viscera  and  pubic  hairs,  as
      well as the liquid oozed out from the vagina on the  role  of  cotton,
      sealed and sent the same to the Station House Officer.
The  postmortem report was marked as Ext.P-3.
According to the doctor, the age of  the
      deceased was 15 years based on the  age  written  in  the  application
      form.
The further opinion of the doctor was that due  to  hanging,  no
      injuries could have been caused on the private organs.

   4. Based on the investigation, the prosecution  came  to  the  conclusion
      that the deceased was raped and a case under Section 306 and 376(2)(f)
      IPC was registered against the appellant accused  on  04.08.2002.
The
      appellant was arrested and was put to trial.
The  trial  Court  after
      appreciating the evidence placed before it,  acquitted  the  appellant
      from the charge under Section 306 IPC, but found  him  guilty  for  an
      offence punishable under Section  376(1)  IPC  and  sentenced  him  as
      stated above.

   5. The prosecution examined PW-1 to PW-10.  PW-5 who is the cousin of the
      deceased, was an eye-witness to the  occurrence  and,  therefore,  his
      evidence became imperative.
According to PW-5, who was aged  about  15
      to 16 years on the date of the occurrence, deposed that on the date of
      the incident he went to  the  field  around  11  a.m  for  discharging
      excreta, when he heard the crying sound of his  sister,  the  deceased
      Radha Bai.
On hearing the cries of his sister, when he rushed  to  the
      place he found the deceased lying on the ground and the appellant  was
      mounted on her by putting off  his  pant  and  the  petticoat  of  the
      deceased was also lifted, while the appellant was sitting over her.
It
      was also stated by him that the appellant was thrusting his penis  and
      was indulging in some shameful activity.
According to  PW-5,  when  he
      questioned the appellant  as  to  what  he  did  to  his  sister,  the
      appellant stated to have slapped him twice by  catching  hold  of  his
      shirt and asked him not to speak to anyone about that or else he would
      be killed.
PW-5 further deposed that his sister  returned  back  home,
      while PW-5 went to Tanodiya and when he returned back from Tanodiya he
      came to know that the deceased committed suicide by hanging.

   6. PW-5 stated to have narrated what he saw on the morning of  23.07.2002
      to PW-2 and PW-1 on the day after the cremation of  the  deceased  was
      over.
Thereafter, PW-2 stated to have informed based on the version of
      PW-5 that she  came  to  know  that  it  was  the  appellant  who  was
      responsible for the commission of rape on the deceased Radha Bai.
The
      above fact was also supported by the evidence of PW-7, Babulal who  in
      his evidence stated that the deceased Radha Bai was his niece, that on
      the date of the occurrence he had also gone to the field, where he saw
      PW-5, Pappu, going towards his house  weeping  and  he  also  saw  the
      deceased Radha Bai going from the bushes weeping  towards  her  house.
      PW-7 stated to have seen the appellant also going  towards  his  house
      and that when he asked the appellant as  to  what  had  happened,  the
      appellant stated to have silenced PW-7 or else threatened to beat him.
      Though, PW-7 was treated as hostile, some part  of  the  evidence  did
      support the version of   PW-5.

   7. The medical evidence  also  to  a  large  extent  confirmed  that  the deceased Radha Bai was raped prior to the suicide committed by her. 
It
      has also come in evidence that the seized articles  of  the  deceased,
      which were sent to the forensic laboratory, were  returned  back  with
      the report Ext.P-15. As per the report of the forensic laboratory  the
      slides of the deceased Radha Bai, her  clothes,  underwear,  petticoat
      and Saree contained spots of sperm and in the slide of the deceased on
      her pubic hair, clothes etc., human blood was  found  and  such  human
      blood was also found on the underwear and petticoat, as well as  Saree
      of the deceased. As per the report, sexual  intercourse  committed  on
      the deceased Radha Bai was confirmed. The  trial  Court  has  observed
      that though there was a lengthy cross-examination of PW-5, nothing was
      brought out and his evidence was natural and did not create any  doubt
      as to the veracity of his statement.

   8. Keeping the above findings of the trial Court, as well as that of  the
      High Court on the commission of the offence of rape by  the  appellant
      on the deceased Radha Bai, when  we  heard  learned  counsel  for  the
      appellant, the only submission placed before us was that PW-5,  stated
      to have informed PWs-1 and 2, namely, the grand-mother and  mother  of
      the deceased Radha Bai on the very next day after  the   funeral   had
      taken   place, but   yet   the  statement  of  PW-5, was  recorded  by
      the police only on 04.08.2002. In so far as  the  said  submission  is
      concerned, it was true that the evidence of PWs-1 and 2 disclose  that
      PW-5 informed them about the alleged rape committed by  the  appellant
      on the deceased Radha Bai, on 24.07.2002 i.e. on  the  very  next  day
      after the funeral had taken  place.  However,  there  was  nothing  on
      record to suggest that the said  information  was  passed  on  to  the
      prosecution  agency  immediately  after  the  receipt  of   the   said
      information by PWs1 and 2. In  such  circumstances,  it  can  only  be
      stated that as soon as it was brought to the notice of the prosecution
      agency as to the commission of the offence by the appellant through PW-
      5, further action was taken by the police by nabbing the appellant and
      proceeding with the prosecution in  accordance  with  law.  Therefore,
      when we consider the submission  of  the  learned  counsel  about  the
      abnormal delay in proceeding against the appellant up to  the  alleged
      date of occurrence, the trial Court has also held that  the  witnesses
      were all of rural background and illiterate  persons  and,  therefore,
      some allowance will have to be given for their laxity in bringing  the
      factum of the rape alleged to have been committed by the appellant  on
      the deceased Radha Bai. When we consider the evidence of PW-5, who was
      a child witness, who was stated to be between 13 to 14  years  at  the
      time of occurrence, we find that his evidence was found to be  natural
      and he withstood the lengthy cross-examination, which  did  not  bring
      out any contradiction in his version apart from the fact that  he  had
      no axe to grind against the  appellant.  Further  when  based  on  the
      evidence  of  PW  5  and  the  medical  reports,   the   incriminating
      circumstances that existed against  the  appellant  were  put  in  313
      questioning, he had no explanation to offer. The medical evidence also
      fully supported the crime alleged against the appellant. Moreover, the
      evidence  of  PW-7,  also  corroborated  the  version   of   PW-5   to
      considerable extent regarding the involvement of the appellant in  the
      commission of the crime on the deceased  Radha  Bai.   Therefore,  the
      ultimate conclusion of guilt found proved  against  the  appellant  as
      held by the trial Court as well as the High Court cannot be faulted.

   9. Having regard to our above conclusion, we do not find any merit in the
      appeal. The appeal fails and the same is dismissed.

  10. The appellant is on bail. The bail bond stands cancelled and he  shall
      be taken into custody forthwith to serve out  the  remaining  part  of
      sentence, if any.




                                                     ………….……….…………………………..J.
                                    [A.K. Patnaik]




                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]


 New Delhi;
 July 24, 2013.

Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.” = No test identification is necessary - She denied all the suggestions made by the prosecution that she was a girl of easy virtue or bad character and she was a consenting party to the said incident or she was habitual to sex.- when she categorically deposed that some boys also raped and she fell unconscious = The test identification parade could not be held as the prosecutrix had fled away from her village and gone to reside with her sister at Bokaro after being threatened by the accused, therefore, appellants should not be allowed to take the benefit of this circumstance. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.= under Section 313 Cr.P.C.,- No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime.= Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix. In case of rape besides the psychological trauma, there is also social stigma to the victim. Majority of rapes are not sudden occurrences but are generally well planned as in this case. Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation. Physically she must feel safe in the society, mentally she needs help to restore her lost self esteem, psychologically she needs help to overcome her depression and socially, she needs to be accepted back in the social fold. Rape is blatant violation of women’s bodily integrity. 17. After considering the case from all angles, we do not see any cogent reason to interfere with the findings of fact recorded by the courts below. The appeals lack merit and are, accordingly, dismissed.

                    reported in         http://judis.nic.in/supremecourt/imgst.aspx?filename=40588                         
       Non-Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOS. 109-110 of 2011




      Md. Iqbal & Anr.
           …Appellants


                                   Versus




      State of Jharkhand
             …Respondent



                               J U D G M E N T

      Dr. B.S. Chauhan, J.


      1.    These appeals have been preferred against the impugned  judgment
      and order dated 2.9.2009 passed by the  High  Court  of  Jharkhand  at
      Ranchi in Criminal Appeal Nos. 316 and 218 of 2002, by which the Court
      has affirmed the judgment and order of the trial court dated 22.5.2002
      passed in GR. No. 151 of  1999,  by  which  the  appellants  had  been
      convicted for the offence punishable under Section 376(2)(g) of Indian
      Penal Code, 1860 (hereinafter referred to as the  ‘IPC’).  
They  were
      sentenced to undergo RI for a period of 10 years and further, to pay a
      fine of Rs.5,000/- each, and  in  default  of  the  same,  to  further
      undergo RI for a period of 6 months.
However, both the appellants were
      acquitted of charges punishable under Sections 3(1)(xii)  and  3(2)(v)
      of The Scheduled  Castes  and  the  Scheduled  Tribes  (Prevention  of
      Atrocities) Act, 1989.


      2.    Facts and circumstances giving rise to these appeals are that:
      A.    Aliva Kongari (PW.10) – the prosecutrix  at  about  10  a.m.  on
      13.6.1999 came to the district headquarters Simdega from  her  village
      Jhingur Pani Toli.
There she met her  friends  Kiran  and  Shashi  and
      alongwith them  she  went  to  enjoy  a  movie  at  the  cinema  hall.
      Thereafter, she proceeded towards the vegetable market. Here, she  was
      followed by two boys (appellants) who  told  her  to  accompany  them.
      Though, she refused to go with them, they caught hold of her hands and
      took her forcibly to a school situated in Bhathi Toli  and  there  she
      was subjected to rape by both of them.
      B.    Subsequently, other boys also came there and some of  them  also
      raped her.  
However,  she  was  tired  and  became  unconscious.  She
      regained her consciousness in the morning and nearby, she saw  an  old
      lady.
One of the appellants, was also there just outside  the  school.
      On enquiring,  the old lady told  her that his name was Iqbal.
      C.    The  prosecutrix  went  to  the  police  station  and  lodged  a
      complaint. Her statement was recorded. Her clothes,  particularly  her
      petticoat was taken by the police and she was taken  to  the  hospital
      for  medical  examination.
In  view  of  the   aforesaid   complaint,
      investigation started and the appellants were arrested after 2-3 days.
      D.    After the conclusion of the investigation, the  chargesheet  was
      filed against the accused appellants.  They  pleaded  not  guilty  and
      thus,  were put to trial.
      E.    During the trial, most of the witnesses turned hostile.
 However,
      the trial court vide  impugned  judgment  and  order  dated  22.5.2002
      convicted and sentenced the appellants as  referred  to  hereinbefore.
      Their appeals have also been dismissed by the High Court vide impugned
      judgment and order dated 2.9.2009.
            Hence, these appeals.


      3.    Ms. Kumud Lata Das, learned counsel appearing for the appellants
      has submitted that 
the version of the prosecutrix is not in consonance
      with  medical evidence and the conduct of  the  prosecutrix  was  very
      unnatural.
Even the father of the prosecutrix who had been examined as
      a prosecution witness turned hostile and did not support the  case  of
      the prosecution.
Therefore, the version of the  prosecutrix  that  she
      had been taken from  the  market  by  the  appellants  to  the  school
      building where she was subjected to rape, is very  unlikely  as  these
      are public places  where  someone  would  have  come  to  her  rescue.
      Furthermore, in spite of the fact  that  the  school,  where  she  was
      subjected to rape had two rooms she was raped in a verandah, this  too
      seems  unlikely.
The  prosecution  failed  to  examine  the  material
      witnesses particularly the old lady who disclosed the name of  one  of
      the appellants as Iqbal to the  prosecutrix.
No  Test  Identification
      Parade was conducted. 
 Even the evidence of Surendra Kumar  (PW.9)  is
      far  from  satisfactory.  
Due  to  the  aforementioned  contentions,
      benefit of doubt should be given to  the  appellants.  Therefore,  the
      appeals deserve to be allowed.


      4.    Mr. Jayesh Gaurav, learned counsel appearing on  behalf  of  the
      State, has  opposed  the  appeal  as  there  are  concurrent  findings
      recorded by the courts below.
The test  identification  parade  could
 not be conducted because the prosecutrix had left her village for some other place  under  the  threat/pressure  of  the  accused.   
Further,
witnesses have turned hostile because of the pressure exerted  by  the accused-appellants.  
Thus, the appeals are liable to be dismissed.


      5. We have considered the rival submissions made  by  learned  counsel
      for the parties and perused the record.
      6.    Aliva Kongari, (PW.10), the prosecutrix, is  the  most  material
      witness. She deposed, that she was forcibly taken  by  the  appellants
      from the vegetable market to the school and  was  subjected  to  rape.
      Subsequently, other boys also came and some of them  also  raped  her.
      She  raised  hue  and  cry  and  was  very  tired.  Thus,  she  became
      unconscious. After regaining consciousness in the early  morning,  she
      approached the police station and lodged the  complaint.   She  showed
      her blood stained clothes as well as stains of a semen like  substance
      on them.  She had been medically examined on 15.6.1999.
            She further deposed that she was being  persistently  threatened
      from the appellants/accused, therefore, she left her house  after  the
      incident and went to stay with her sister at Bokaro.   She  identified
      both the appellants/accused in the court.  Her mother  had  died.  She
      had informed her father about the incident  when  he  came  to  police
      station on 14.6.1999.  
She denied all  the  suggestions  made  by  the
      prosecution that she was a girl of easy virtue or  bad  character  and
      she was a consenting party to the said incident or she was habitual to sex.


      7.    Dr. Jacika Dehm (PW.7)  who  had  examined  the  prosecutrix  on
      15.6.1999, found that her hymen was ruptured and noted  the  following
      injuries on her person:
            “3” x ½” abrasion on the medical side of right thigh.
           “½” x ½” abrasion on the medical side of left  thigh, which  may be due to sanitary pad.
           In the opinion of the  doctor,  
spermatozoa  was  not  found  in
vaginal swab examination and there was no injury in her  private
 parts.The patient was habitual to sexual intercourse.”


           Dr. Jacika Dehm (PW.7)  proved the medical report.




      8.    Surendra Kumar Singh, S.I., (PW.9), the Investigating Officer of
      the case, deposed that in order to hold the T.I. parade, he tried  his
      best to locate the prosecutrix as she was not residing in her village.
       Her father had given in writing that the prosecutrix had  shifted  to
      Calcutta. Therefore, there would be no sanctity of T.I.  parade  after
      such an inordinate delay.


      9.    Majahar Alam (PW.1), Bablu Khan (PW.2), Kulanand Prasad  (PW.3),
      Md.  Yakir  (PW.5)  and  Abdul  Rashid  (PW.6)  were  the  prosecution
      witnesses.   Their  statements  under  Section  161  of  the  Criminal
      Procedure Code, 1973 (hereinafter referred to as `the Cr.P.C.’),  were
      only to the extent that they had gone to the place of occurrence after
      hearing commotion,  but they turned hostile and did  not  support  the
      case of the prosecution. Chaturdhan Pradhan, (PW.9), remained merely a
      formal witness who had to prove FIR only.


      10.   Father of the prosecutrix  Edmon  Kongari,  (PW.4),  had  turned
      hostile,  however, at the most, he could depose what  the  prosecutrix
      had told him on 14.6.1999 when he came  to  meet  her  in  the  police
      station.


      11.   Statement of the  prosecutrix  had  been  duly  corroborated  by
      medical evidence. Since she was examined two days after the  incident,
      it is natural that spermatozoa would not be found in her vaginal swab.




      12.   The  test  identification  parade  could  not  be  held  as  the
      prosecutrix had fled away from her village and gone to reside with her
      sister at Bokaro after being threatened  by  the  accused,  therefore,
      appellants  should  not  be  allowed  to  take  the  benefit  of  this
      circumstance.


      13.   The trial court has thoroughly appreciated the facts of the case
      and come to the conclusion that in view of the provisions  of  Section
      114-A of Indian Evidence Act,  1872  there  is  a  presumption  as  to
      absence of consent in case of gang rape and it will be  presumed  that
      the prosecutrix did not give consent, as this presumption is based  on
      the reasoning that nobody can be a consenting party to several persons
      simultaneously.   Thus, consent is not possible in the  case  of  gang
      rape.


      14.   There is no prohibition in law to convict the accused of rape on
      the basis of sole testimony of the prosecutrix and the  law  does  not
      require that her statement be corroborated by the statements of  other
      witnesses.
            In Narender Kumar v. State (NCT of Delhi),  AIR  2012  SC  2281,
      this Court has observed that even if a woman is of easy virtues or use
      to sexual intercourse, it cannot be a licence for any person to commit
      rape and it further held:

           “24.  Conviction  can  be  based  on  sole  testimony   of   the
           prosecutrix  provided  it  lends  assurance  of  her  testimony.
           However, in case the court has reason not to accept the  version
           of prosecutrix on its face value, it may look for corroboration.
           In case the evidence is read  in  its  totality  and  the  story
           projected by the prosecutrix is  found  to  be  improbable,  the
           prosecutrix case becomes liable to be rejected.


           The court must act with sensitivity and appreciate the  evidence
           in totality of the background of the entire case and not in  the
           isolation. Even if the prosecutrix is  of  easy  virtue/unchaste
           woman that itself cannot be a determinative factor and the court
           is required to adjudicate whether the accused committed rape  on
           the victim on the occasion complained of.”

      (See also: Vijay @ Chinee v. State of Madhya  Pradesh,  (2010)  8  SCC
      191)


      15.   In the statements of the accused/appellants  under  Section  313
      Cr.P.C.,  only  a  bold  statement  had  been   made   by   both   the
      accused/appellants that they were innocent.
No explanation  had  been
      furnished by either of them as to  why  the  prosecutrix  had  deposed
      against them and involved them in such a heinous crime.


      16.   Rape cannot be treated only as a sexual crime but it  should  be
      viewed as a crime involving aggression which leads to  the  domination
      of the prosecutrix. 
In case of rape besides the psychological  trauma,
      there is also social stigma to the victim. 
Majority of rapes  are  not
      sudden occurrences but are generally well planned  as  in  this  case.
      Social stigma has a devastating effect on rape victim. It is violation
      of  her  right  of  privacy.  
Such  victims  need  physical,   mental,
      psychological and social rehabilitation. 
Physically she must feel safe
      in the society, mentally she needs  help  to  restore  her  lost  self
      esteem, psychologically she needs help to overcome her depression  and
      socially, she needs to be accepted back in the social fold.  
 Rape  is
      blatant violation of women’s bodily integrity.


      17.   After considering the case from all angles, we do  not  see  any
      cogent reason to interfere with the findings of fact recorded  by  the
      courts below.  The appeals lack merit and are, accordingly, dismissed.






                                ……………………………..........J.                (DR.
                                B.S. CHAUHAN)



……………..................................J.
                                                               (S.A.  BOBDE)

      NEW DELHI;
      July 22, 2013




      -----------------------
10