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1997(4) Crimes 414 (SC)
SUPREME COURT OF INDIA
(From Madras High Court)
M.K. Mukherjee and K.T. Thomas, JJ.
State of Tamil Nadu etc. - Appellants
Versus
Suresh (A2) & Anr. - Respondents
Criminal Appeal Nos. 153-154 of 1991
With
Criminal Appeal Nos. 155-156 of 1991
Decided on 5-12-1997
Counsel for the Parties:
For the Appearing Parties: N. Natarajan, Sr.
Advocate, V.G. Pragasam, (S. Tripathi) Advocate for Ms. Rani Jethmalani, Ms. Binu Tamta, Ranjit Kumar Advocates.
Held: It is extremely remote that a burglar or a stranger rapist would have gate crashed 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 A2 also. If PW l's version is true A2 had his own grudge towards the deceased. The intensity of that grudge was known only to himself or perhaps the deceased also. If A2 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. (Para 17)
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 (Para 18)
This is not a case where evidence of PW 1 is totally bereft of any reassuring Circumstance. The 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 the balcony.
(3) The admission of A2 and A3 that they along with PW 1 were 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 A2 and A3).
(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. (Para 22)
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 A2 and A3. 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 A2, and A3, though we are not inclined, at this distance of time, to restore the sentence of death passed by the trial Court on those two accused. (Para 29)
(ii) Evidence Act, 1872-Sections 113, 114, illustration (b)-Approver -Evidence of-Admissibility of Court is required to adopt great circumspection and care when dealing with evidence of an accomplice No legal necessity to seek corroboration of accomplice's evidence However, it is desirable that court seeks reassuring circumstances to satisfy judicial conscience that the evidence is true.
Held: 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 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 necessity to seek corroboration of accomplice's evidence it is desirable that court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true. (Paras 19, 20)
(iii) Evidence Act, 1872-Section 157 -Statements of witnesses Admissibility for corroboration With in how much time statement should have been made ?-Expression at or about the time when the fact took place in Section 151 Meaning of-Held, the expression should be understood in the context according to facts and circumstances of each case-Test to be adopted is did the witness have the opportunity to concoct or to have been tutored - Held on facts, when PW l disclosed to his brother in law PW 6 about version of occurrence, there is nothing to indicate that PW 1 was either tutored or influenced by anybody during the interregnum.
Held: 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. (Para 25)
Further held: 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? (Para 26)
Here when PW 1 disclosed to his brother-in-law (PW 6) 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 are-assurance regarding the truth of PW l s evidence in court so far as the persons involved in the episode are concerned. (Para 27)
Result: Appeal allowed. Conviction of A 2 and A 3 restored.
JUDGMENT
Thomas, J-A young enceinte housewife fell from the top of a four-storeyed building down on the pavement 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.
2. 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 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.
3. 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 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 Hamesh 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.
4. 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 to 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 A2 was becoming a habitual drunkard.
5. 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 PW 1 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 over-power 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. A3
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