2006 Supreme(SC) 1098

2006(8) Supreme 710
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Amrit Singh - Appellant
versus
State of Punjab - Respondent
Criminal Appeal No. 1327 of 2005
Decided on 10-11-2006
Counsel for the Parties :
For the Appellant : H.L. Agrawal, Sr. Advocate, S.D. Gupta, A.P. Aggrawal and Dr. Kailash Chand, Advocates.
For the Respondent : Sanjay Jain, Mukesh Kumar and A.K. Sinha, Advocates.

IMPORTANT POINT
Evidence of last seen may be relied upon or may form the basis for conviction which would depend upon facts and circumstances of each case.

Headnote:Indian Penal Code, 1860 - Sections 376 and 302 - Rape and murder of six years’ old girl - Conviction and sentence of death passed by trial Court and upheld by High Court - Appeal - Prosecution case was based on circumstantial evidence - Deceased was last seen with appellant at about 5.45 P.M., going towards field of appellant holding finger of appellant - Dead body of victim was spotted in the field of appellant - Cause of death was excessive bleeding from private part of victim - No reason to disbelieve witness PW3 who had last seen victim with deceased - Evidence of last seen might form the basis for conviction, which would depend upon facts and circumstances of each case - Place of occurrence i.e. agricultural field of appellant was important circumstance - If an outsider had committed the crime, victim would have cried out but appellant, a neighbour and known to her was a person of trust - Appellant however could not be said to have killed victim intentionally - Death occurred because of excessive bleeding if occurred as a consequence of and not because of any specific overt act on part of appellant - Death penalty could not be sustained as case did not fall in category of rarest of rare case - Offence since fell u/s 376(2)(f) and in view of brutality with which offence was committed, maximum sentence of imprisonment for life deserved to be imposed.

       Held : The prosecution case as regards commission of a heinous offence of rape on a minor girl and her death is not seriously disputed on behalf of Appellant. Appellant and the deceased were residents of the same village. Prosecution has brought enough materials on record to show the culpability which for all practical purposes remained unrebutted. That deceased has come to see her friend (Amanpreet Kaur) who happened to be her relation also. She was last seen alive in the company of Appellant. It was not suggested that PW-3 has bore any animosity towards Appellant. PW3 was not cross-examined on vital aspects of his statement made in his examination-in-chief. He made his statement before the villagers and also before the Investigating Officer as soon as he came to know about the manner in which the deceased has met with her fate.(Para 14)

       The evidence of last seen may be relied upon or may form the basis for a conviction which, however, would depend upon the facts and circumstances of each case. In some cases, the Court also look for corroborative evidence; in some cases the Court may rely fully thereupon.(Para 15)

       Post mortem examination was held at 11.00 a.m. on 4th November, 2003. The time of death was said to be within 24 hours. The deceased died of bleeding from her private parts, which indisputably was the result of rape. Exact time as to when the occurrence took place is not known and it would be hazardous to make any guess in this behalf. Deceased died a painful death which would appear from impression of teeth on her lips. She did not have even a developed body; public and axillary hairs not grown and breasts were also not developed. Organs of generation external and internal were that hymen was torn, complete pereneal tear, multiple vaginal laceration, complete vault tear and uterus was infantile. No rigor mortis was noticed. Dead body was found at or before 10.00 p.m. as her body was brought to home at that time. There exists a controversy as to whether Appellant was arrested immediately on 9.11.2003 or 12.11.2003. He was indisputably suspected of commission of the offences. He was either arrested or he fled away from his house. It was true that according to PWs. 2 and 3 he was arrested immediately whereas according to the Investigating Officer, he was found absent from his house and the house was locked. Sending of a telegram to the Chief Justice of the High Court is not in dispute but the Courts below did not lay much stress thereupon as allegations made by the grandfather of Appellant in that behalf were withdrawn at a later stage. Appellant examined two defence witnesses who proved the fact that a telegram was sent but later on an application was filed which was marked as Exhibit DA, from a perusal whereof it appears that the complaint was withdrawn by Makhan Singh, maternal grandfather of the accused. It is, however, interesting to note that it was a former Sarpanch of the village who caused the production of the body of Appellant before the Investigating Officer; if latters statement is to be believed. The place of occurrence also plays some importance. It was on the cotton field of Appellant himself. Height of cotton crop according to the villagers goes upto 6 ft. The cotton crop was in front of the house of Appellant. (Para 18)

       Mr. Aggarwal has also drawn our attention to a suggestion made to PW-2 that four young boys aged about 10 years were seen in the cotton field from outside areas. If an outsider had committed the crime, she would definitely cried out but Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellants finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his house.(Para 19)

       Submission of Mr. Aggarwal, however, that Appellant might not have an intention to kill the deceased, thus, may have some farce. The death occurred not as a result of strangulation but because of excessive bleeding. Deceased had bleeded half a liter of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of Appellant. (Para 21)

       Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases. (Para 22)

       Appellant, however, in any event, is an accused under Section 376(2)(f) of the Indian Penal Code. (Para 23)

       In a case of this nature where the brutality with which the offence was committed leading to the death of the prosecutrix, in our opinion, maximum sentence should be imposed. Appellant, thus deserves imposition of Rigorous Imprisonment for life.(Para 24)

       (ii) Identification of Prisoners’ Act - Rape and murder of six years’ old girl - In the hands of deceased some human hair were found - Investigating Officer filed an application in Court for obtaining specimen of hair of accused - Accused refused to give such specimen hair - Provisions of the Act could not be said to be applicable - Appellant had a right to give or not to give sample of his hair - He could not be made a witness against himself against his will.