Supreme Court of India
SANTOSH KUMAR SINGHversusSTATE THR. CBI
- Citation
- 2010 INSC 679
- Decided
- 6 October 2010
- Disposal
- Dismissed
- Bench
- H S BEDI
Holding
The conviction under IPC ss. 376 and 302 stands, but the death sentence is commuted to life imprisonment because the circumstantial evidence and DNA results form a complete chain of proof and mitigating circumstances outweigh the aggravation.
Summary
The appellant, Santosh Kumar Singh, was accused of raping and murdering Priyadarshini Mattoo. The trial court acquitted him, rejecting the DNA evidence and deeming the circumstantial evidence insufficient. The High Court reversed the acquittal, finding the chain of circumstantial facts – continuous harassment, presence at the crime scene, a blood‑stained helmet, fresh injury on the appellant's hand, and a conclusive DNA match – to prove guilt beyond reasonable doubt, and imposed death. The Supreme Court held that the circumstantial evidence formed a complete, unbroken chain, the DNA report was scientifically reliable, and the injury was fresh, thus upholding the conviction but commuting the death sentence to life imprisonment, noting mitigating factors such as the appellant's age, marriage, and lack of evidence of future danger. The appeal was dismissed with the modified sentence.
Issues considered
- The adequacy of circumstantial evidence to sustain convictions under IPC ss. 376 and 302.
- The reliability and admissibility of DNA profiling evidence.
- Whether the injury on the appellant's right hand was fresh and linked to the crime.
- The standard of appellate interference in a trial court's acquittal.
- The appropriateness of the death penalty versus life imprisonment under the 'rarest of rare' doctrine.
- The effect of not putting certain material circumstances before the accused under CrPC s.313.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 302, s. 376
Subjects
circumstantial evidenceDNA profilingrapemurderdeath penaltylife imprisonmentSection 313 CrPCforensic evidenceappellate reviewmitigating circumstances
Judgment
[2010] 13 (ADDL.) S.C.R. 901
SANTOSH KUMAR SINGH A
v.
STATE THR. CBI
(Criminal Appeal No. 87 of 2007)
OCTOBER 6, 2010
8
[HARJIT SINGH BEDI AND CHANDRAMAULI KR.
PRASAD, JJ.]
Penal Code, 1860: ss. 376, 302 - Conviction based on
circumstantial evidence - Victim found dead in her house with C
19 injuries on her person with three broken ribs - Trial court
acquitted the accused holding that although few
circumstances were in favour of prosecution, however, DNA
report was not reliable and, therefore, case against the
accused was not proved beyond reasonable doubt - High o
Court9 relying on the circumstantial evidence, convicted the
accused ulss. 302, 376 and awarded death sentence - On
appeal, held: Circumstances formed a chain so complete that
there was no escape from the conclusion that within all
probability the crime was committed by the accused - There E
were oral evidence with regard to continuous stalking and
sexual harassment caused to the victim by accused - On the
day of incident also, accused was seen in her college and near
her house which constituted a strong chain in prosecution's
case - Helmet of accused seized from his house was F
besmeared with spec of blood - Its visor was broken - Pieces
of visor were found near the dead body of the victim
besmeared with her blood - Medical evidence clearly
supported the prosecution version that the fracture on right
hand of the accused was sustained during the course of the G
rape and murder - False plea of accused that fracture was
sustained 10 days prior to the incident was another link in the
chain - DNA test conducted on vaginal swabs and the blood
samples of appellant showed that rape was committed, and
that too by the accused - Plea that DNA report was not reliable
901 H
902 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A as the vaginal swabs and slides taken from the dead body
were tampered with, was far fetched as there was no evidence
of tampering - Also, there was no doubt regarding the sanctity
of blood samples of the accused - In the light of evidence,
the order of conviction upheld - However, as regards the
B sentence, balance sheet tilted marginally in favour of accused
- Crime was committed when accused was 24 years old -
After acquittal, he got married and was the father of a girl child
- Nothing to show that he would not reform - In the interest of
justice, sentence commuted to life imprisonment - Sentence/
c Sentencing - Criminal law - Evidence - Circumstantial
evidence - Code of Criminal Procedure, 1973 - s.313.
Evidence:
Circumstantial evidence - False plea taken by an
D accused in a case of circumstantial evidence is another link
in the chain - Plea.
Expert evidence - Expert opinion on technical subject -
Held: Court cannot substitute its own opinion for that of an
expert, more particularly in a science such as DNA profiling
E
- DNA report.
Code of Criminal Procedure, 1973:
s.313 - Object of - Held: While recording statement u/
F s. 313, all incriminating material circumstances must be put
to an accused, however, if any material circumstance is left
out that would not ipso-facto result in the exclusion of that
evidence from consideration unless it could further be shown
by the accused that prejudice to him and miscarriage of
G justice was caused - In the instant case, the question that the
helmet was used as weapon of offence, was not specifically
put to the accused but absolutely no prejudice or miscarriage
of justice was caused to him on that score as the death was
caused not by the use of the helmet but by strangulation -
Penal Code, 1860 - ss. 376, 302.
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 903
Appeal against acquittal - A~quittal by trial court- Scope A
of interference by appellate court - Discussed - Penal Code,
1860 - SS. 376, 302.
I
Administration of criminal justice: Principle of - Greater
caution on court while dealing with criminal cases. B
Sentence/Sentencing: Where the option is between life
sentence and death sentence, and if the court itself feels some
difficulty in awarding one or the other, it is only appropriate
that the lesser sentence should be awarded - Mitigating
circumstances need to be taken into account - Penal Code, c
1860 - SS. 376, 302.
On 24th January, 1996, the dead body of the victim
was found lying under the bed with the cord of the electric
heat convector tied around her neck and blood stains o
around the body. As per the post mortem report, there
were 19 injuries on the dead body; the death was a result
of strangulation by ligature and the injuries on the dead
body were sufficient to cause death in the ordinary
course of nature.
E
There was no eye witness to the incident. The trial
court noted 13 circumstances against the appellant which
were: (1) The accused had been continuously harassing
the deceased right from the end of 1994 to January 1996,
a few days before her death; (2) The accused had more F
than once given an undertaking that the accused would
not harass the deceased in future while admitting that the
accused had been doing so earlier; (3) The motive of the
accused was to have the deceased or to break her; (4)
On the day of occurrence, the accused was seen in the G
premises of Faculty of Law, University of Delhi in the
forenoon, where the deceased had gone to attend LLB.
class. The accused was no more a student of Faculty of
Law at that time; (5) At the crucial time before murder, the
accused was seen outside the door of the flat of the H
904 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A deceased with a helmet in his hand which had a visor;
(6) On the day of occurrence after murder, the accused
had reached late to attend class at Indian Law Institute,
Bhagwan Dass Road, where the accused was a student;
(7) Immediately after the murder, the mother of the
B deceased had raised suspicion that the accused had a
hand in the murder of her daughter; (8) When the
accused joined investigation on the night between 23/
24.1.96, the accused had an injury on his right hand.
There was swelling and fracture on 5th metacarpal of
c right hand. There was no plaster or bandage on his hand;
the injury was fresh, having been caused 24 to 38 hours.
The blood pressure of the accused at that time was high
which showed anxiety; (9) DNA Finger Printing Test
conclusively established the guilt of the accused; (10)
0 The helmet of the accused which was taken into
possession had broken visor; before murder, it was
found by PW-2, PW-32 that the helmet of the accused had
a visor; violence was detected on both sides of visor; the
Helmet was besmeared with a spec of blood; at the spot
E pieces of visor were found near the body of the deceased
besmeared with her blood; (11) The deceased had 19
injuries on her person besides three broken ribs; these
injuries were suggestive of force used for rape. A tear
mark over the area of left breast region on the T-shirt of
the deceased suggested that the force was used for
F molestation; (12) The accused took a false defence that
fracture on the hand of the accused was sustained by the
accused in an accident that occurred 10 days prior to the
incident and it was not a fresh injury; the accused also
gave false replies against proved facts; and (13) The
G influence of the father of the accused resulting in
deliberate spoiling of the case.
The trial court found circumstances 1 to 5, 7 and 10
to 13 in favour of prosecution. It, however, rejected the
H DNA report and held that the case against the appellant
SANTOSH KUMAR SINGH v. STATE THR. CBI 905
could not be proved beyond reasonable doubt and A
acquitted him. The High Court, however, held that all the
13 circumstances were proved in favour of the
prosecution and held the appellant guilty under Sections
376, 302 IPC and passed death sentence.
B
In the instant appeal challenging the order of
conviction and sentence, it was contended for the
appellant that the defence story with regard to
circumstances 8 and 12 was required to be considered;
that as the callus formation had set in, the injury could C
not be of 24th January, 1996 and had been sustained
much earlier; that the post mortem did not reveal any
evidence of rape; that the DNA test did not conclusively
prove the involvement of the appellant in the rape as the
vaginal swabs and slides taken from the dead body and
the blood samples of the appellant were tampered with; D
and that since the case rested primarily on the factum of
rape and there was no evidence of rape, the case of
murder would also fall through.
Dismissing the appeal with modification in respect of E
sentence, the Court .
HELD: 1.1. There were oral and documentary
evidence with regard to the allegation that right from the
year 1994 to January 1996, that is a few days before the
murder, the appellant had been continuously harassing F
the deceased. The appellant was seen in the Faculty of
Law even on the morning of the incident. There did not
seem to be any reason for him to be present at that place
as he had passed out in the year 1994. He was also seen
by the neighbour, PW-2 outside the house of the G
deceased at about 5 p.m. carrying a helmet with an intact
fixed visor, and was seen moving out of the Colony by
two witnesses soon after 5 p.m. (though these witnesses
ultimately turned hostile). The only argument against PW-
2 was that his statement under Section 161 Cr.P.C. was H
906 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A recorded after three days. No adverse view can be taken
of this matter as there was utter confusion in the
investigation at the initial stage. Moreover, PW-2 was a
next door neighbour and a perfectly respectable witness
with no bias against the appellant. 1;1 addition, the
B recovery of the helmet with a broken visor and the
recovery of glass pieces apparently of the visor from near
the dead body and the fact that the appellant himself
sustained injuries while mercilessly beating the deceased
with his helmet (as per the F.S.L. Report) and causing 19
c injuries including three fractured ribs, were other
circumstances with regard to the murder. [Para 20) [934-
C-H]
1.2. Regarding circumstances 8 and 12, the doctor,
PW-28 categorically stated in his medical report that the
D presence of swelling on the right hand of the appellant
was symptomatic of a recent injury. The doctor, PW-27
was still more emphatic. He put the maximum duration of
the injury between 48 to 72 hours and deposed that a
fracture of the 5th metacarpal was generally produced by
E direct violence, the most common factor being the
striking of the hand against an opponent during an
altercation. A perusal of the evidence revealed that since
the injury was recent, the swelling on the fracture had not
settled down, and the callus formation had not yet started
F as the crepitus was still present. The appellant had taken
a stand that he had sustained the said injury on 14th
January 1996 in a road accident in which the visor of the
helmet was also broken. The CBI had accordingly
collected certain documents from the Diagnostic Centre
G and the hospital where the appellant was alleged to have
been treated for the injuries suffered by him. Those
documents were exhibited as defence documents. No
evidence was produced in defence to prove the
documents or to test their veracity. Moreover, no doctor
H from the Centre and the hospital was summoned as
SANTOSH KUMAR SINGH v. STATE THR. CBI 907
witness. The medical evidence clearly supported the A
version that the injury was sustained by the appellant on
the 24th of January 1996 during the course of the rape
and murder. It has been held time and again that a false
plea taken by an accused in a case of circumstantial
evidence is another link in the chain. The finding on B
circumstances 8 and 12 by the trial court was reversed
by the High Court on the ground that the onus to prove
his defence lay on the appellant and he had admittedly
not led any evidence to support his plea. This Court
endorses the said findings of the High Court. The onus. c
to prove his defence and the circumstances relating to
his injury t1nd treatment were within the special
knowledge of the appellant. He could, therefore, not keep
silent and say that the obligation rssted on the
prosecution to prove its case. (Paras 9, 13, 15, 16] (928-
0
C-H; 929-B-G; 930-0-G; 931-H; 932-A]
Trimukh Maroti Kirkan vs. State of Maharashtra 2006
(10) sec 681, referred to.
2.1. The plea of the appellant that the DNA report E
could not be relied upon on the ground that the vaginal
swabs and slides taken from the dead body at the time
of the post-mortem examination were tampered with, was
far fetched as it would mean that not only the
investigating agency, that is, the senior officers of the CBI
and the DSP in particular, the doctors who had taken the F
vaginal swabs and slides, the doctors and other staff
who had drawn the blood samples, and the scientists in
Hyderabad had all been in a conspiracy to harm the
appellant. This premise was unacceptable. The post
mortem report and the endorsement thereon showed that G
one bundle containing a full sleeved T-shirt having a cut
mark over the area of the left breast region, one jeans, 0 ne
pair of woolen socks, one brassiere and one underwear
were sealed and handed over to the investigating officer.
H
908 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A It also mentioned that these items along with two vaginal
swabs and two slides were also handed over to the 1.0.
26th to 28th January 1996 were holidays which was
perhaps the cause as to why some of the items including
the semen swabs and stains and the clothes of the
B deceased remained in the custody of the hospital
authorities till the 29th. These items were taken by the
inspector from the malkhana on the 31st January 1996
in a sealed condition and in a glass jar and handed over
to the CCMB Hyderabad in an identical condition. PW-49
c (Dr. Lalji Singh) deposed on oath that all the said items
along with several others were received in a sealed
condition as his organization did not accept any item
which was without a seal. No adverse inference against
the prosecution can, thus, be drawn with regard to the
0 retention of the items in the malkhana. There was no
suggestion put either to the Doctors or to the DSP or to
the Sub-Inspector that the seals of the said articles were
tampered with. [Paras 21, 22] (935-A-H; 937-8-H; 938-A]
2.2. Regarding the blood samples of the appellant, no
E suspicion could be raised with regard to their sanctity.
There was ample evidence to suggest that the blood
samples were kept in the hospital in a proper way and
handed over to the Inspector who took them to the
CCMB, Hyderabad and that the explanations tendered by
F PW-34 and the doctor of CCMB of Hyderabad as to why
the quantity of blood may have been reduced were worth
acceptance. The High Court was, therefore, fully justified
in holding that the trial court's conclusions on the
question of the retention and dispatch of the swabs and
G slides, the clothes of the deceased and the blood
samples, was faulty and based on a perverse assessment
of the evidence. The Court cannot substitute its own
opinion for that of an expert, more particularly in a
science such as DNA profiling. The expertise and
H experience of PW-49 in his field was recognized by this
SANTOSH KUMAR SINGH v. STATE THR. CBI 909
Court in *Kamalan.tha & Ors. v. State of Tamil Nadu. CW-1 A
is a scientist of equal repute and he had in fact
conducted the tests under the supervision of PW-49.
These two scientists were persons of eminence and the
laboratory in question was also held in the highest
esteem in India. The statements of PW-49 and CW-1 B
revealed that the samples were tested as per the
procedure developed by the laboratory and the samples
were sufficient for the purposes of comparison and that
there was no possibility of the samples having been
contaminated or tampered with. The two scientists gave c
very comprehensive statements supported by
documents that the DNA of the semen stains on the
swabs and slides and the underwear of the deceased
and the blood samples of the appellant was from a single
source and that source was the appellant. It is significant
0
that not a single question was put to PW-49 as to the
accuracy of the methodology or the procedure followed
for the DNA profiling. The trial court referred to a large
number of text books and gave adverse findings on the
accuracy of the tests carried out in the instant case. Such
E
coriclusions cannot be accepted as the court has
substituted its own opinion ignoring the complexity of the
issue on a highly technical subject, more particularly as
the questions raised by the court had not been put to the
expert witnesses. The trial court was not justified in
rejecting the DNA Report, as nothing adverse could be F
pointed out against the two experts who had submitted
it. Therefore, the DNA report is accepted as being
scientifically accurate and an exact science. [Paras 23-25]
[940-B-H; 941-B-E; 942-D-E]
G
*Kamalantha & Ors. v. State of Tamil Nadu 2005 (5) SCC
194; Bhagwan Das & Anr. v. State of Rajasthan AIR 1957 SC
; Gambhir v. State of Maharashtra AIR 1982 SC 1157 -
relied on.
H
910 SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.
A Smt. Kamti Devi v. Poshi Ram AIR 2001 SC 2226,
referred to.
3. Motive alone cannot form the basis of conviction
but in the light of the other circumstances, the motive
B goes a very long way in forging the links in the chain. In
the instant case, the motive stood proved beyond any
doubt. As the appellant's overtures were rebuffed by the
deceased, he had resorted to harassing her in a manner
which became more a11d more aggressive and crude as
time went by; It came in the evidence of the mother of the
C deceased (PW-44) that the police officers before whom
the appellant was brought, on the complaints of
harassment made by the deceased had desisted from
taking any action against him and had, on the contrary
harassed her, her. husband and the deceased by
D summoning and detaining them in the Police Station at
odd hours and for long periods of time. It was this
behaviour that led the trial court to comment very
adversely on the conduct of some of the police officers
involved. The findings of the trial court that the conduct
E of these officers deserved to be condemned as
reprehensible is endorsed. [Paras 27, 28] [945-F-G; 946-
A-D]
Arulve/u & Anr. v. State & Anr. (2009) 10 SCC 206;
Ashraf Ali v. State of Assam (2008) 16 SCC 328; Sharad
F Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC
116; Suresh Chandra Bahri v. State of Bihar 1995 Supp (1)
sec 80 - referred to.
4. Undoubtedly, a judgment of acquittal rendered by
G a trial court must be given the greatest consideration and
the appellate court would be slow in setting aside that
judgment, and where two views are possible, the one
taken by the trial court would not be disturbed. On the
contrary, if the trial court's judgment was perverse,
H meaning thereby, that it was not only against the weight
SANTOSH KUMAR SINGH v. STATE THR. CBI 911
of evidence but was all together against the evidence, A
interference was called for. The High Court was alive to
its limitation in such a matter and while dealing with this
argument, it first expressed its shock and observ,ed that
though virtually all the findings were in favour of the
prosecution, yet curiously, the decision was rendered in B
favour of the accused. The judgment of the trial court was
accordingly held to be perverse and against the
evidence. The High Court's observations were justified
on the facts. [Paras 30, 31] [947-C-F; 949-8]
5. All incriminating material circumstances must be C
put to an accused while recording his statement under
Section 313, Cr.P.C., but if any material circumstance was
left out that would not ipso-facto result in the exclusion
of that evidence from consideration unless it could
further be shown by the accused that prejudice and D
miscarriage of justi~ had been sustained by him. In the
instant case, the questions pertaining to the helmet and
the ligature marks on the neck were put to the Doctor and
even in a way to the appellant. The defence was,
therefore, alive to the circumstances against the E
appellant. The fact that the helmet was used as weapon
of offence, was not specifically put to the appellant but
absolutely no prejudice or miscarriage of justice was
caused to the appellant on that score as the death was
caused not by the use of the helmet but by strangulation F
and that the appellant and his counsel were fully alive to
the prosecution story that the helmet had been used as
a weapon to beat the deceased into submission. No
prejudice or miscarriage of justice has, thus, been
occasioned. [Paras 34] [952-B-F] G
6. In the instant case, the broad principle that a
particularly nasty and revolting crime imposes a yet
greater caution on the court which must resist the
tendency to look beyond the file and not be swayed by
the horror of the crime or the character of the accused, H
912 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A was scrupulously adhered to. [Para 35] [953-E-F]
Kashmira Singh vs. State of Madhya Pradesh AIR 1952
SC 159; Ashish Batham vs. State of Madhya Pradesh (2002)
7 sec 317 - relied on.
B /sh war Singh v. State of U. P. (1976) 4 SCC 355 -
distinguished.
7. Undoubtedly, the sentencing part is a difficult one
and often exercises the mind of the court but where the
c option is between a life sentence and a death sentence,
the options are indeed extremely limited and if the court
itself feels some difficulty in awarding one or the other, it
is only appropriate that the lesser sentence should be
awarded. This is the underlying philosophy behind 'the
0 rarest of the rare' principle. Furthermore, the mitigating
circumstances need to be taken ~nto account, more
particularly that the High Court reversed a judgment of
acquittal based on circumstantial evidence. The appellant
was a young man of 24 at the time of the incident and,
E after acquittal, had got married and was the father of a
girl child. There was nothing to suggest that he would not
be capable of reform. The balance sheet tilted marginally
in favour of the appellant, and the ends of justice would
be met if the sentence awarded to him is commuted from
death to life imprisonment under Section 302. IPC. [Para
F 38] [955-C-H; 956-A-B]
Case Law Reference:
2006 (1 o) sec 681 referred to Para 15
G 2005 (5) sec 194 relied on Para 24
AIR 1957 SC 589 relied on Para 24
AIR 1982 SC 1157 relied on Para 25
AIR 2001 SC 2226 referred to Para 25
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 913
(2009) 10 sec 206 referred to Para 29 A
(1976) 4 sec 355 distinguished Para 29
(2008) 16 sec 328 referred to Para 29
(1984) 4 sec 116 referred to Para 29
B
1995 Supp (1) sec 80 referred to Para 29
AIR 1952 SC 159 relied on Para 35
(2002) 1 sec 317 relied on Para 36
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c
No. 87 of 2007.
From the Judgment & Order dated 17.10.2006 and
30.10.2006 of the High Court of Delhi at New Delhi in Criminal
Appeal No. 233 of 2000. D
Sushil Kumar, Amod Kumar Singh, Sumita Singh, Avnish
Sharma, Avinash Kumar, Aditya Kumar, Anmol Thakral,
Meenakshi Kumar, Mahavir Prasad and Aniruddha, P/Mayee
for the Appellant.
E
P.P. Malhotra, ASG, Ranjana Narayan, P.K. Dey,
Madhurima Mridul, Chetan Chawla, Gaurav Sharma and Arvind
Kumar Sharma for the Respondent.
The Judgment of the Court was delivered by
F
HARJIT SINGH BEDI, J.
This appeal arises out of the following facts:
1. The deceased, Priyadarshini Mattoo, was residing with
her parents at B-10/7098, Vasant Kunj, New Delhi and was a G
student of the LLB. course at the University of Delhi Campus
Law Centre, and had at the relevant time completed the 5th
Semester and was in the final 6th Semester. The appellant,
Santosh Kumar Singh had also been a student in the same
faculty and had completed his LLB. in December 1994. It H
•
914 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A appears that the appellant had been attracted to the deceased
and even though he had passed out from the Law Centre in
1994, he had continued to visit the campus even thereafter on
his Bullet Motorcycle bearing Registration Number DL-1 S-E/
1222.
B
2. As per the prosecution story, the appellant harassed and
intimidated the deceased and despite her requests and then
her remonstrations, did not desist from doing so. The deceased
thereupon made several complaints against the appellant in
different Police Stations during the year 1995 on which he was
C summoned to the Police Station and was advised to behave
properly and a Personal Security Officer, Head Constable
Rajinder Singh PW-32, was also deputed for the security of the
deceased. It appears that as a consequence of the complaints
against him, the appellant too retaliated and made a report to
D the University on 30th October 1995 alleging that the deceased
was pursuing two courses simultaneously which was in violation
of the University Rules and when no action was taken he sent
two reminders dated 4th December 1995 and 20th December
1995 to the University as well. A show cause notice was issued
E to the deceased and in response thereto she submitted her
reply dated 1st December 1995 and during the pendency of
these proceedings, the result of her LLB. 5th Semester
examination was withheld. On 23rd January 1996 PW Head
Constable Rajinder Singh, the PSO, did not turn up at the
F residence of the deceased at the stipulated time on which she
left for the University in her car along with her parents PW-1
Mr. C.L. Mattoo and PW-44 Mrs. Rageshwari Mattoo who had
to visit the Tis Hazari Courts to attend to some civil proceedings.
The parents were dropped off at Tis Hazari at 10.15 a.m. Head
G Constable Rajinder Singh, however, reached the Faculty of Law
directly and saw the appellant present there. The deceased
attended the class from 11.15 a.m. to noon and thereafter
accompanied by the Head Constable left the faculty for Tis
Hazari but finding that her parents had already left the court,
H she returned to her residence at about 1.45 p.m. and directed
SANTOSH KUMAR SINGH v. STATE THR. CBI 915
[HARJIT SINGH BEDI, J.]
Head Constable Rajinder Singh to report again at 5.30 p.m. A
The deceased then had her lunch whereafter Virender Prasad,
the domestic help, left the house at about 2.30 p.m. to meet
his friend Vishnu Prasad @ Bishamber at the residence of PW-
6 Lt.Col S.K.Dhar at Safdarjung Enclave and returned to Vasant
Kunj at 4.55 p.m. He then took the dog for a walk in the colony. B
The appellant came to the residence of the deceased at about
4.50 p.m. carrying his helmet in his hand and was seen by PW-
2 Kuppuswami. PW-3 Jaideep Singh Ahluwalia, Security
Supervisor in the colony. also saw the appellant at 5.30 p.m.
near the residence of the deceased, PW-43 and O.P.Singh, c
Advocate also noticed the appellant riding out of the park area
of B-10, Vasant Kunj at the same time. Head Constable
Rajinder Singh PW reached the residence of the deceased at
about 5.30 p.m., as directed, along with Constable Dev Kumar.
The Head Constable pressed the call bell but eliciting no
0
response from inside, he went to another door which opened
onto the courtyard and knocked but again to no effect. As the
door was slightly ajar the two entered the bedroom of the
deceased and found her dead body lying under the double bed.
The Head Constable immediately informed Police Station, E
Vasant Kunj about the incident on which SHO Inspector
Surinder Sharma arrived at the site and a daily diary report
(rojnamcha) to the above facts Ex.PW-18/A was also recorded
at 5.45 p.m. Inspector Lalit Mohan, Additional SHO, Vasant
Kunj was entrusted with the investigation on which he along with
Sub-Inspector Sushil Kumar, Sub-Inspector Padam Singh, F
Head Constable Satish Chand and several other police officers
too reached the residence of the deceased and found her dead
body lying under the double bed with the cord of the electric
heat convector tied around her neck. He also noticed blood
stains around the body. A case under section 302 of the IPC G
was thereafter registered at Police Station, Vasant Kunj, on the
complaint of the father of the deceased, in which the day's
happenings were spelt out. It was further noted that after
completing their work in the Tis Hazari Courts he and his wife
had visited Safdarjung Enclave and from there he had gone on H
916 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A to attend an official meeting at Vikas Kuteer, ITO whereas his
wife had visited the All India Institute of Medical Sciences and
it was on returning to his residence at 7.30 p.m. that he found
that his daughter had been murdered.
3. During the course of the inquest proceedings initiated
8
by Inspector Lalit Mohan the crime scene was photographed
and some hair found on the dead body, broken pieces of glass
and blood stains near the dead body were recovered. The
electric cord of the heat convector which had been used for the
strangulation was also taken into possession. The statements
c of PW-6 Lt. Col. S.K. Dhar, PW-1 Mr. C.L. Mattoo, the
complainant, and PW-44 Mrs. Rageshwari Mattoo, the mother
of the deceased, and several others were recorded by
Inspector Lalit Mohan and the dead body was then sent to the
Safdarjung Hospital. In her statement, Mrs. Rageshwari Mattoo
D raised the suspicion that the appellant was the culprit and he
was joined in the investigation during the night intervening 23rd
and 24th January 1996. He was also brought before Inspector
Lalit Mohan and he noticed tenderness on his right hand and
an injury which was not bandaged or plastered. He was also
E sent for a medical examination and PW-23 Dr. R.K. Wadhwa
of the Safdarjung Hospital examined him at 3.45 a.m. and
found two injuries on his person - one a swelling on the right
hand dorsum lateral aspect, tenderness with crepitus and the
second, scar marks old and healed multiple both lower limbs
F and on the chest. The Doctor also advised an X-ray of the right
hand. Nail scrapings and hair samples of the appellant were
also taken and handed over to Sub-Inspector Shamsher Singh
and after the X-ray, a fracture of the 5th metacarpal bone of
the right hand was detected and as per Dr. Wadhwa's opinion
G the injury was grievous in nature and caused by a blunt weapon.
The appellant was thereafter allowed to go home and was
directed to visit the Police Station at 9 a.m. on the 25th January
1996. The dead body was also subjected to a post-mortem on
25th January 1995 at the Safdarjung Hospital by a Board of
H Doctors consisting of Dr. Chander Kant, Dr. Arvind Thergaonkar
SANTOSH KUMAR SINGH v. STATE THR. CBI 917
[HARJIT SINGH BEDI, J.]
and PW-33 Dr. A.K. Sharma who in their report Ex.PW33/B A
found 19 injuries on the dead body and also observed that the
private parts showed black, curly non-matted pubic hair, the
hymen intact with no tearing present and admitting only one
finger. The Doctors also took two vaginal swabs and slides
were duly sealed, the swabs and slides in a glass bottle as well B
as samples of the blood and hair. The clothes of the deceased
were also taken into possession and sealed. The Board also
opined that the death was a result of strangulation by ligature
and that the injuries on the dead body were sufficient to cause
death in the ordinary course of nature. c
4. On the 25th January 1996 itself, after the completion of
the post-mortem proceedings, Inspector Lalit Mohan searched
the house of the deceased and picked up a greeting card
Ex.PW 29/B said to be written by the appellant from her room.
The Inspector also seized a helmet with the visor missing and D
indicating that it had broken and the Bullet motorcycle belonging
to the appellant. The specimens of his handwriting Exs.PW48/
E1, E2 and E3 were also taken by the Inspector.
5. It appears that as the murder had taken place in very E
sordid circumstances and the fact that the appellant was the
son of very senior police officer serving in the State of Jammu
& Kashmir and was on the verge of a posting as Additional
Commissioner of Police, Delhi, led to a hue and cry which was
endorsed by the parents of the deceased as they apprehended F
that they would not get a fair deal from the Delhi Police. Faced
with this situation, the Delhi Government itself requested the
Central Bureau of Investigation vide letter dated January 24,
1996 that the investigation be taken over by that agency. As
per the prosecution, this decision was taken by the Government G
on the specific request of the Commissioner of Delhi Police to
the Lt. Governor who referred the same to the Delhi
Government.
6. Inspector Lalit Mohan thereupon produced the appellant
before PW-50 DSP Shri A.K.Ohri of the CBI and the H
918 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A subsequent investigation was made by the DSP with the
assistance of several other officers from the CBI. The
underwear of the appellant was also seized by the CBI as he
represented that he had been wearing the same underwear for
the last couple of days. DSP Ohri also visited the crime scene
B on the 26th January 1996 but did not find Mr. C.L.Mattoo, the
father of the deceased, present. On the next day, he recorded
the statement of Virender Parshad, the domestic servant and
also directed Shri D.P.Singh, DSP to conduct the house search
of the appellant. On the 28th January 1996, a request Ex.PW34/
c A was made by Mr. S.K.Bhatnagar Additional Director of the
CBI to Dr.A.K.Gupta, Medical Superintendent, Dr.R.M.L.
Hospital for procuring the blood samples of the appellant. DSP
Ohri along with the other staff took the appellant to the l1ospital
and met PW-34 Dr. N.S.Kalra, Head of the Biochemistry
D Department and two blood samples of 10 ml. each were taken
by Ms. Godavari Mangai, Lab Assistant and were handed over
to Dr. Kalra. These samples as well as the other case property
collected by DSP Ohri or entrusted to him by Inspector Lalit
Mohan were deposited with the Moharrir Malkhana on the 29th
E January 1996 and preparations were made to refer the matter
for a DNA test. Specimen hand writings Ex.PW24/A1 to A21
of the appellant were also obtained once again this time by the
:Bl. On 30th January 1996 Shri M.L.Sharma, Joint Director,
CBI addressed a letter to the Director, CCMB, Hyderabad
requesting for DNA profiling. Several articles were accordingly
F entrusted to PW-39 Sub-Inspector R.S.Shekhawat on 31st
January 1996, they being:
1. One sealed parcel containing clothes of the
deceased such as T-shirt, brassiere, jeans and
G underwear.
2. One sealed packet containing underwear of the
accused Santosh Kumar Singh.
3. One sealed jar containing vaginal swabs/vaginal
H slides of the deceased and
SANTOSH KUMAR SINGH v. STATE THR. CBI 919
[HARJIT SINGH BEDI, J.]
4. The blood samples of the appellant taken in the A
Dr.R.M.L.Hospital.
The Sub-Inspector thereafter flew to Hyderabad on 31st
January 1996 and deposited the aforementioned articles in the
Office of Dr. Lalji Singh, Officer on special duty at the CCMB, B
Hyderabad on the next morning and an acknowledgement
Ex.PW49/A relating to the following articles was obtained:
1. One sealed parcel containing clothes supposed to
be of the deceased, namely, T-Shirt, brassiere,
jeans and underwear. C
2. Vaginal swabs/vaginal slides supposed to be of the
deceased.
3. One thermocole box containing 4 vials marked as D
S-1,S-2,S-3 and S-4 supposed to be blood of the
accused.
The underwear of the appellant was, however, returned by
Dr. Lalji Singh as it was not relevant for the DNA finger printing
test. On the 1st February, 1996 DSP Ohri re-visited the house E
of the deceased and recorded the statement of Mrs.
Rageshwari Mattoo and Hemant Mattoo, the brother of the
deceased who told the investigating officer that the appellant
had been noticed by PW-2 Shri Kuppuswami standing near
their house shortly before the time of the murder. The DSP then F
went to the house of Shri Kuppuswami but he was away. He,
however, recorded his statement on the 4th February 1996.
During the course of the investigation, the appellant disclosed
that he had received the injury on the metacarpal bone in an
accident on the 14th January 1996 and had been treated at the G
Nirmay Diagnostic Centre and Hindu Rao Hospital. Inspector
Terial was thereupon sent to the Centre to collect his medical
records. They were duly collected on the 9th February 1996 and
16th February 1996 and deposited in the malkhana of the CBI.
On 20th February 1996 a letter Ex.PW27/A was addressed to H
920 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A -the Medical Superintendent, Safdarjung Hospital seeking an
opinion about the injury suffered by the appellant on his hand.
An opinion was rendered by PW-28 Dr. Mukul Sinha and PW-
27 Dr. G.K.Choubey on the 22nd February 1996 that the injury
seemed to be fresh as there was no evidence of any callus
B formation. On the completion of the investigation, the appellant
was charged for offences punishable under Sections 376/302
of the IPC. He pleaded not guilty and claimed trial.
7. As there was no eye witness to the incident, the
prosecution placed reliance only on circumstantial and
C documentary evidence. After 51 witnesses had been examined
by the prosecution and final arguments were being heard, the
trial court decided that it would be in the interest of justice to
call Dr. G.V.Rao of the CCMB as a court witness as he, in
consultation with PW-48 Dr. Lalji Singh, had conducted the
D DNA test. His statement was recorded as CW -1.
In the course of a rather verbose judgment, the trial court
noted that there were 13 circumstances against the appellant.
We quote herein below from the judgment:
E
"1.The accused had been continuously harassing the
deceased right from the end of 1994 to January 1996, a
few days before her death.
2. The accused had more than once given an
F undertaking that the accused would not harass the
· deceased in future while admitting that the accused had
been doing so earlier.
3. The motive of the accused was to have the
deceased or to break her.
G
4. On the day of occurrence, the accused was seen
in the premises of Faculty of Law, University of Delhi in the
forenoon, where the deceased had gone to attend LLB.
class. While the accused was no more a student of Faculty
H of Law at that time.
SANTOSH KUMAR SINGH v. STATE THR. CBI 921
[HARJIT s:NGH BEDI, J.]
5. At the crucial time before murder, i.e. about 5 A
p.m. on 23.1.96, the accused was seen outside the door
of the flat of the deceased, i.e. B-10/7098 with helmet in
his hand which had a visor.
6. On the day of occurrence after murder, the 8
accused had reached late to attend class at Indian Law
Institute, Bhagwan Dass Road, where the accused was a
student too.
7. Immediately after the murder, the mother of the
deceased had raised suspicion that the accused had a C
hand in the murder of her daughter.
8. When the accused joined investigation on the
night between 23/24.1.96, the accused had an injury on
his right hand. There was swelling and fracture on 5th o
metacarpal of right hand. There was no plaster or bandage
on his hand. That injury was fresh, having been caused 24
to 38 hours. The blood pressure of the accused at that
/
time was high which showed anxiety.
9. DNA Finger Printing Test conclusively establishes E
the guilt of the accused.
10. On 25.1.96, the helmet Ex.P.3 of the accused
which was taken into possession had broken visor. On
23.1.96 before murder, it was found by PW2 Shri F
Kuppuswami, PW Personal Security Officer Rajinder
Singh that the helmet of the accused had a visor. Violence
was detected on both sides of visor. Helmet was
besmeared with a spec of blood. At the spot pieces of
visor were found near the body of the deceased G
besmeared with her blood.
11. The deceased had 19 injuries on her person
besides three broken ribs. These injuries were suggestive
of force used for rape. A tear mark over the area of left
H
922 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A breast region on the T-shirt of the deceased suggested that
the force was used for molestation.
12. The accused took a false defence that fracture
on the hand of the accused was sustained by the accused
on 14.1.96 and it was not a fresh injury. The accused also
B
gave false replies against proved facts.
13. The influence of the father of the accused
resulting in deliberate spoiling of the case."
c The Trial Court rendered its opinion on the
circumstances 1 to 3 as under:-
(i) "The accused in January, February 1995 tortured the
deceased by following her upto the residence at
Safdarjung Enclave at the place of Colonel SK Dhar and
D also by telephoning at All India Institute of Medical
Sciences and at her residence.
(ii) On 25.2.95 the accused followed the deceased and
tried to stop the car of the deceased by shouting at her
E which was the cause of lodging the report Exh. PW6/A. The
accused submitted the apologies Exh.PW6/B and
Exh.PW6/DB.
(iii) The accused took the false plea that the accused was
going to llT on the said date. The accused also took a
F
false stand that there was no friendship between the
accused and the deceased. The plea of the accused that
such report was result of refusal of accused to allow the
deceased to sing in the Cultural Festival of the University
has not been substantiated. The plea is false to knowledge
G of the accused.
(iv) The subordinate staff of Delhi Police attempted to
assist the accused during investigation and during trial. Sh.
Lalit Mohan Inspector was instrumental in creating false
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 923
[HARJIT SINGH BEDI, J.]
evidence and false defence of the accused. The witness A
of police including Rajendra Kumar Sub Inspector deposed
falsely with respect to role assigned as an agent of law in
the matter of complaints in writing preferred by the
deceased. The subordinate staff of Delhi Police has not
discharged the agency of law in accordance with basic B
principles of fair play in action. Had Rajinder Kumar SI and
the SHO of Police Station RK Puram, SHO Vasant Kunj,
ACP Satinder and Parbhati Lal acted in accordance with
law vis-a-vis accused, as they act towards an ordinary
citizen whose father is not a senior officer in police c
department perhaps the incident would not have occurred.
(v) The accused went to the house of the deceased at 8-
10, Vasant Kunj, New Delhi and banged the door of the
house of the accused when the deceased was alone at
home. D
(vi) On 6.11.95, the accused tortured the deceased in the
Campus Center of Law which resulted in lodging of FIR
at police station, Maurice Nagar, Delhi.
E
(vii) The accused even mentally tortured the deceased in
December, 1995.
(viii) The accused preferred petition against the deceased
to the University against her appearing in both
examinations of M.Com and LLB in order to pressurize the F
deceased to succumb to the ulterior design and motive of
the accused.
(ix) The accused had the intention to have the deceased
and to convert the said intention in reality and if it is not G
possible on account of attitude of the deceased not allow
the deceased to be of anybody else. The facts proved and
the acts of the accused lead to inference that the accused
had the motive to have the deceased at all event and
H
924 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A failing to not to allow her to be of anybody else. The state
has established the motive."
8. The court observed that the continuous stalking of the
deceased by the appellant despite complaints to the police
showed his utter disregard of the rule of law and in conclusion
B
held that "circumstances No.1, 2 and 3 are thus held to have
been proved beyond any shadow of doubt by the prosecution."
The court then examined circumstances Nos.4, 5 and 10
cumulatively and held that the appellant had indeed been seen
in the University Campus Law Centre on the 23rd January 1996
C riding his motorcycle wearing a helmet with an intact visor and
that on the same day in the afternoon he had been seen by
PW2 Sh. Kuppuswami at the gate of the house of the deceased
carrying a helmet with a visor. The court further opined that
when the helmet had been seized on the 25th January 1996 it
D was seen to be in a badly damaged condition and that the
broken pieces of the visor which had been recovered from the
site of the crime besmeared with the blood of deceased
conclusively proved that the visor had been broken during the
commission of the murder as it had been used to bludgeon the
E deceased into submission.
9. The court, accordingly, held that these circumstances
showed that the appellant had been seen around the house of
the deceased at 4.50 pm. The High Court also supplemented
F these findings by pointing out that as the appellant was no
longer a student of the Law Faculty of the University of Delhi
he had a duty to explain as to why he had visited the University
on the 23rd January 1996. The trial court nevertheless did not
find any conclusive evidence against the appellant with respect
to circumstance No.6 observing that in view of the uncertain
G traffic in the National Capital Territory of Delhi the timing factor
could not be taken as a conclusive one. The High Court,
however, differed with trial court on this aspect as well and held
that the appellant had attended his classes in the Indian Law
Institute on 23rd January 1996 and had been late for the class
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 925
[HARJIT SINGH BEDI, J.]
and this circumstance showed that this had happened as he A
had been involved in committing the rape and murder. While
dealing with circumstance No.8, the trial court observed that
DSP Ohri had not taken into account the defence story that the
appellant had suffered an injury on the metacarpal about 10
days prior to the murder and had thereby not given an B
opportunity to the court to review the evidence on this aspect
and had, thus, not acted in a fair manner. The court then went
on to say that "the accused too has not assisted the court in
discharging the onus which was upon him to justify the defence
taken by him in the matter of alleged injury. Consequently, on c
the face of an injury, on 5th metacarpal on the date of crime
of murder, with swelling and tenderness, the court is of the view
that the injury possibly is fresh but on account of lack of fair
play on the part of the CBI, it cannot say that the defence of
the accused is not plausible." This finding too has been D
reversed by the High Court in appeal on the plea that the onus
to prove his defence lay on the appellant and he had admittedly
not led any evidence to support his plea. The High Court,
accordingly, held that the finding of the trial court was perverse
on this aspect. The trial court then went on to circumstance E
No.9 and evolved its own theories and after a huge discussion,
rejected the DNA report given by the CCMB, Hyderabad as
also the evidence of Dr. Lalji Singh and Dr. G.V. Rao. This
finding has also been reversed by the High Court by observing
that though there appeared to be no physical evidence of rape
on the body but the DNA test conducted on the vaginal swabs F
and slides and the underwear of the deceased and the blood
sample of the appellant, it was clear that rape had been
committed, and that too by him. The High Court held that it
would be a dangerous doctrine for the court to discard the
evidence of an expert witness by referring to certain texts and G
books without putting those texts to the expert and taking his
opinion thereon. The High Court also reversed the finding of
the trial court that the vaginal swabs and slides and the blood
samples of the appellant had been tampered with. The trial court
and the High Court both held circumstance No.11 in favour of H
926 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A the prosecution and it was observed that the deceased was
alone at the time of incident and that she had been brutally
attacked with the helmet which had been used with great force
to cause as many as 19 injuries, including three broken ribs.
On circumstance No.12, the trial court gave a finding that there
B was no conclusive evidence to show that the injury on the
metacarpal had been suffered by the appellant in the incident
on the 14th January 1996 as the evidence of Dr. Ashok Charan,
the Radiologist was not entirely credible. The High Court has,
however, reversed this finding. The Trial Court then examined
C circumstance No.13 and found that though there was nothing
on record to show the direct interference of the father of the
appellant in the investigation but as he was likely to be posted
as a senior police officer in the Delhi Police, the possibility that
the lower investigating staff were influenced by his status was
D a factor which could not be ruled out. The trial court also held
that Inspector Lalit Mohan, the first investigating officer and a
member of the Delhi Police had done no credit to himself but
lauded the Commissioner of Police, Delhi for suggesting that
the matter be handed over to the CBI, to obviate any suspicion
of an unfair investigation.
E
10. A perusal of the above discussion would reveal that
the trial court had itself held circumstances 1 to 5, 7 and 10 to
13 in favour of the prosecution, circumstance No.8 has been
held in a manner which could fall both ways whereas
F circumstance No.6 has been held to be of no con!'lequence.
The High Court has, however, held all 13 circumstances as
having been proved in favour of the prosecution. The trial court,
accordingly, on the basis of findings recorded particularly
circumstance No.9, held that the case against the appellant
G could not be proved and acquitted him. The matter was taken
in appeal to the High Court and the High Court has reversed
the judgment of the trial court, as already indicated above and
awarded a death sentence. It is in this background that this
matter is before us. We have dealt with the arguments in the
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 927
[HARJIT SINGH BEDI, J.]
sequence in which they have been projected by Mr. Sushil A
Kumar, the learned senior counsel for the appellant.
11. Mr. Sushil Kumar has first and foremost submitted that
circumstances 8 and 12 with regard to the defence story
projected by the accused were first required to be considered
8
and in the light of the fact that the trial court had, in a manner,
rejected these circumstances as supporting the prosecution,
it could not be said that the injury suffered by the appellant on
his right hand fixed his presence at the spot. He has referred
us to the document D-61 an opinion dated 24th January 1996
of PW-23 Dr. Ranjan Wadhwa which revealed a swelling on C
the right hand on the dorsal and lateral aspect, tenderness plus
crepitus of the 5th metacarpal and had suggested an X-ray of
the right hand. He has also taken us to the evidence of the
Doctor to argue that the X-ray had, indeed, been done and the
film had been examined by Dr. A.Charan, PW-28 Dr. Mukul D
Sinha and PW-27 Dr. G.K.Chobe. He has referred to the
statement of Dr. Mukul Sinha to point out that the X-ray
performed on the 14th January 1996 at Nirmay Diagnostic
Center and the other one at the Safdarjung Hospital on 24th
January 1996 could not be said to be of the same person as E
the picture had been taken from different angles. Mr. Sushil
Kumar has, further, brought to our specific notice that as the
callus formation had set in, the injury could not be of the 24th
January 1996 and would have been sustained much earlier.
He has also referred us to the statement of Dr. Chobe who had F
examined the X-rays of the appellant taken on 14th January
1996 and 24th January 1996 and pointed out that even this
Doctor could not give a categoric opinion as the instructions
given by him to the investigating agency to probe the matter
further in a particular direction, had not been complied with. It G
has, accordingly, been submitted that in the face of no other
evidence produced by the prosecution, there was nothing to
suggest that the fracture of the metacarpal had happened on
the 24th January 1996 and the evidence on the contrary
H
928 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A indicated that this fracture had been suffered during an accident
on the 14th January 1996.
12. Mr. P.P. Malhotra, the learned ASG has, however,
controverted the plea raised on behalf of the appellant. It has
been pointed out that the evidence of Dr. Wadhwa, Dr. Mukul
8
Sinha and Dr. G.K.Chobe, when read cumulatively, proved that
the injury had been sufferE:!d by the appellant on the 24th January
1996 and was, therefore, fresh at the time when the Doctors
had examined him on that day.
C 13. We now examine the evidence on these two
circumstances. As already mentioned above, the medical
report dated 24th January 1996 recorded by Dr. Wadhwa
refers to a swelling on the right hand at the 5th metacarpal. In
the very next line in the same report there is a reference to a
D scar mark old healed multiple lower ribs. It is apparent
therefore, that the Doctor himself noticed that the scar mark
was an old and healed injury, whereas the swelling on the right
hand revealed tenderness and presence of the crepitus. When
this Doctor came into the witness box as PW23, an attempt
E was made to show that the condition of the injury indicated that
it was about 1O or 15 days old. This plea was specifically
denied by the Doctor. Dr. Mukul Sinha was, however, more
categoric when he stated that the presence of swelling on the
right hand was symptomatic of a recent injury and that after the
F inflammation slowly subsided the soft provisional callus would
start forming from the third to the fourteenth day and due to the
absence of any callus formation on the 24th January 1996, it
appeared that the injury could not have been sustained on the
14th January 1996. Dr. G.K.Chobe was still more emphatic.
G Af:er reviewing the medical report dated 24th January 1996 he
put the maximum duration of the injury between 48 to 72 hours
and further deposed that a fracture of the 5th metacarpal was
generally produced by direct violence, the most common factor
being the striking of the hand against an opponent during an
altercation. He further clarified that in the case of a fracture of
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 929
[HARJIT SINGH BEDI, J.]
the metacarpal the swelling would not remain for more than 3 A
to 4 days and that the callus formation had not yet started as
the clicking sound which was known as crepitus was still
noticeable and which always remained till the callus was
formed. Dr. Chobe also made another significant statement.
He pointed out that had the incident happened on 14th January B
1996 a plaster or bandage would have been applied to the
fracture but there was no indication as to whether this line of
treatment had been adopted. A perusal of this evidence would
reveal two striking facts, one, it confirms the deposition of the
other two doctors that because the injury was recent the c
swelling on the fracture had not settled down, and two, the callus
formation had not yet started as the crepitus was still present.
14. We see that the positive stand of the appellant was
that he had sustained the injuries on the 14th of January 1996
in the course of a road accident in which the visor of his helmet D
had also been broken. Inspector Terial of the CBI accordingly
collected certain documents from the Nirmay Diagnostic Centre
and the Bara Hindurao Hospital where the appellant had
allegedly been treated for the injuries suffered by him.
Statements of several doctors were also recorded. These E
documents were deposited in the CBI Malkhana on the 9th
February 1996 and 16th February 1996. In the course of his
evidence PW DSP Ohri gave the above facts and further
clarified that the appellant's father had produced an X-ray film
before him on the 20th February 1996 and that he had also F
issued a notice to him to produce the treatment record of the
appellant within two days. We see that the documents seized
by Inspector Terial have been exhibited as defence documents.
We further see that a reading of these documents does indicate
that an X-ray was taken on the 14th January 1996. Significantly G .
however no Doctor of the Nirr:nay Diagnostic Centre or Bara
Hindurao Hospital had been summoned as a witness. The trial
court has held that the omission to produce the defence
evidence in Court was unbecoming of the investigating agency
but that the appellant himself was also guilty of not producing H
930 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A any evidence in his defence and by some curious reasoning
has opined that :
"The accused too has not assisted the court in
discharging the onus which was upon him to justify the
defence taken by him in the matter of alleged injury.
B
Consequently, on the face of an injury, on 5th metacarpal
on the date of crime of murder, with swelling and
tenderness, the cpurt is of the view that the injury possibly
is fresh but on account of lack of fair play on the part of
the CBI, it cannot say that the defence of the accused is
c not plausible. Therefore this circumstance will have to be
considered in both ways in the cumulative effect of various
circumstances to consider if the case is proved beyond
reasonable doubt."
D 15. We are indeed astonished at these remarkably
confusing and contradictory observations, as the CBI was not
called upon to prove the defence of the appellant. The CBI had
fairly secured the documents which could prove the appellant's
case and they were put on record and it was for the defence
E to use them to its advantage. No such effort was made.
Moreover, we are unable to see as to how these documents
could have been exhibited as no one has come forward to
prove them. It has to be kept in mind that the appellant was a
lawyer and his father a very senior Police Officer, and we are
F unable to understand as to why no evidence in defence to prove
the documents or to test their veracity, had been produced. In
this background, we find that the medical evidence clearly
supports the version that the injury had been sustained by the
appellant on the 24th of January 1996 during the course of the
G rape and murder. This finding raises yet another issue. It has
been held time and again that a false plea taken by an accused
in a case of circumstantial evidence is another link in the chain.
In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10)
sec 681 it has been held :
H "The normal principle in a case based on
SANTOSH KUMAR SINGH v. STATE THR. CBI 931
[HARJIT SINGH BEDI, J.]
circumstantial evidence is that the circumstances from A
which an inference of guilt is sought to be drawn must be
cogently and firmly established; that those circumstances
should be of a definite tendency unerringly pointing
towards the guilt of the accused; that the circumstances
taken cumulatively should form a chain so complete that B
there is no escape from the conclusion that within all human
probability the crime was committed by the accused and
they should be incapable of explanation on any hypothesis
other than that of the guilt of the accused and inconsistent
with their innocence. c·
and again
"If an offence takes place inside the privacy of a
house and in such circumstances, where the assailants
have all the opportunity to plan and commit the offence at D
the time and in circumstances of their choice, it will be
extremely difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict principle of
circumstantial evidence, as noticed above, is insisted.
upon by the courts. A judge does not preside over a E
criminal trial merely to see that no innocent man is
punished. A judge also presides to see that a guilty man
does not escape. Both are public duties. The law does not
enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any F
rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable
of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section
106 of the Evidence Act which says that when any fact is G
especially within the knowledge of any person, the burden
of proving that fact is upon him."
16. We, accordingly, endorse the opinion of the High Court
on circumstances 8 and 12. The onus to prove his defence and
the circumstances relating to his injury and treatment were within H
932 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A the special knowledge of the appellant. He could, therefore, not
keep silent and say that the obligation rested on the prosecution
to prove its case.
17. Mr. Sushi! Kumar has then argued with emphasis, that
the case rested primarily on the factum of rape and if it was
8
found that there was no evidence of rape, the case of murder
would also fall through. He has, accordingly, taken us to
circumstance No.9 which the trial court noted as under:
"DNA finger printing test conclusively established the guilt
C of the accused."
He has first pointed out that the post-mortem did not reveal
any evidence of rape. Reference has been made to the
statement of PW33 Dr.AK.Sharma, who along with a Board
D of two other Doctors had performed the post-mortem on the
dead body on the 25th January 199~ at the Safdarjung Hospital
and it was observed that the deceased was wearing a full
sleeved high neck pinkish T-shirt with a small tear on the breast,
blue coloured jeans, one brassiere and underwear and woolen
E socks and though there were a large number of injuries on the
dead body and the local examination of the private parts
showed black, curly non matted pubic hair, and an intact hymen,
with no tearing. The Doctor was also questioned as to whether
the hymen would always be torn and ruptured during the first
sexual encounter and he explained that though this would be
F the normal case but it was not always so and that the hymen
could remain unruptured even after repeated sexual intercourse
for certain reasons which he then spelt out. It has, accordingly,
been submitted that there was absolutely no evidence of rape
detected during the course of the examination. He has also
G pointed out that as there were no semen stains on the dead
body of the deceased or her clothes and as the underwear of
the appellant sent to the CCMB, Hyderabad had been returned
without examination and had been examined thereafter in the
Central Forensic Science Laboratory, Delhi and the semen's
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 933
[HARJIT SINGH BED!, J.]
stains found were of group A which was not the blood group of A
the appellant, there were no evidence suggesting rape.
1tl. It has, finally, been submitted that the observation of
the High Court that the DNA test conclusively proved the
involvement of the appellant in the rape was not tenable as it B
appeared that the vaginal swabs and slides which were
allegedly taken from the dead body at the time of the post-
mortem examination and the blood samples of the appellant
taken under the supervision of PW Dr. N.S.Kalra had been
tampered with. It has been argued that as per the findings of C
the trial court the record of the Malkhana with respect to the
vaginal swabs and slides had been fudged and though these
items had been handed over to the CBI officers on the 25th
January 1996 they had been deposited in the Malkhana on the
29th January 1996 and no explanation was forthcoming as to
how and why this delay had happened. It has also been D
submitted that as per the evidence of Dr. N.S.Kalra a request
had been made to him by the CBI to take 2 samples of blood
of 10 ml. each from the appellant but 2 samples of 10 ml. had
been taken and transferred to 4 vials and when the vials had
been opened at the CCMB, only 12 ml. of blood had been E
found, and this too cast a doubt on the prosecution case. It has
finally been submitted that the tests conducted by the CCMB,
Hyderabad were faulty and could not be relied upon.
19. The learned Additional Solicitor General has, however, F
controverted the above submissions and has pleaded that they
were based on the supposition of a bias against the appellant
and that all those involved including the officials of the CBI, the
Doctors who had conducted the post-mortem examination,
those who had taken the blood samples and the Scientists of G
the CCMB were in league to implicate him in a false case. He
has further argued that there was no evidence of tampering with
the vaginal swabs and slides which had been sealed by the
Doctors and handed over to the police and had been collected
from the Malkhana by PW-39 Inspector Shekhawat and taken
H
934 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A to the CCMB, whereas the blood samples, on the contrary, had
been retained in the office of Dr. N.S. Kalra in the RML Hospital
and that Inspector Shekhawat had taken them from there and
gone straight on to Hyderabad and delivered them to the CCMB
with seals intact.
B
20. At the very outset, we must dispel Mr. Sushi! Kumar's
rather broad argument that the primary allegations were of rape
whereas murder was a secondary issue in the facts of the case
and that the proof of murder would depend on proof of rape.
We see from the record that there is very substantial evidence
C with regard to the allegations of murder simpliciter and have
been dealt with under circumstance No.11. We first see that
right from the year 1994 to January 1996, that is a few days
before the murder, the appellant had been continuously
harassing the deceased and that this allegation has been
D proved by ocular and documentary evidence. We also see that
the appellant had been seen in the Faculty of Law, University
of Delhi on the morning of the incident and had no business to
be present at that place as he had passed out in the year 1994.
He was also seen by PW-2 Shri Kuppaswami outside the
E house of the deceased at about 5 p.m. and was carrying a
helmet with an intact fixed visor, and was seen moving out of
the Vasant Kunj Colony by two witnesses soon after 5 p.m.
(though these witnesses ultimately turned hostile). The only
argument against PW-2 is that his statement under Section 161
F of the Code of Criminal Procedure had been recorded after
three days. We find nothing adverse in this matter as there was
utter confusion in the investigation at the initial stage. Moreover,
PW-2 was a next neighbour and a perfectly respectable witness
with no bias against the appellant. In addition, the recovery of
G the helmet with a broken visor and the recovery of glass pieces
apparently of the visor from near the dead body and the fact
that the appellant himself sustained injuries while mercilessly
beating the deceased with his helmet (as per the F.S.L. Report
Ex:PW50/H4) and causing 19·injuries including three fractured
H ribs, are other circumstances with regard to the murder.
SANTOSH KUMAR SINGH v. STATE THR. CBI 935
[HARJIT SINGH BEDI, J.]
Assuming, therefore, for a moment, that there was some. A
uncertainty about the rape, the culpability of the appellant for
the murder is nevertheless writ large and we are indeed
surprised at the decision of the Trial Judge in ordering an
outright acquittal.
B
With this background, we now examine the evidence
leading to the charge of rape.
21. It is the primary submission of Mr. Sushil Kumar that
the vaginal swabs and slides taken from the dead body at the
time of the post-mortem examination had been tampered with C
and as there was some suspicion with regard to the blood
samples taken by Dr. N.S.Kalra on the 25th January, the DNA
report too could not be relied upon. This is a rather far fetched
plea as it would mean that not only the investigating agency,
that is the senior officers of the CBI and DSP Ohri in particular, D
the doctors who had taken the vaginal swabs and slides, the
doctors and other staff who had drawn the blood samples, and
the scientists in Hyderabad had all been in a conspiracy to harm
the appellant. To our mind, this premise is unacceptable. We
see from the post mortem report Ex.PW33/B dated 25th E
January 1996 and the endorsement thereon that one bundle
containing a full sleeved high neck pinkish violet colour T-shirt
having a cut mark over the area of the left breast region, one
blue coloured jeans, one pair of woolen socks, one white
coloured brassiere and one blue coloured underwear had been F
sealed and handed over to the investigating officer, Inspector
Lalit Mohan~ It also finds mention that these items along with
two vaginal swabs and two slides had also been handed over
to the 1.0. It has been submitted by Mr. Sushil Kumar that these
items had been retained by Inspector Lalit Mohan till the 25th G
of January 1996 and then handed over to PW-38 Inspector
Sunit Kumar of the CBI. Inspector Sunit Kumar, however,
deposed that on the 29th January 1996, and on the direction
of DSP Ohri, he had gone to the department of Forensic
Medicine, Safdarjung Hospital, and taken the bundle of clothes H
936 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A and one jar containing vaginal swabs and slides duly sealed
and several other items as well and that a specimen of the seal
had also been obtained by him. It is, therefore, obvious that till
29th of January 1996 the aforesaid articles remained in the
custody of the Safdarjung Hospital and that they were deposited
B in the malkhana on the 29th January 1996.
22. We notice from the cross-examination of.Inspector Sunit
Kumar that not a single question had been put to him in the
cross-examination doubting the receipt of the aforesaid items
from the hospital on the 29th January 1996. DSP Ohri
C confirmed the evidence of Inspector Sunit Kumar Sharma that
he had received the case property from the hospital and it had
· been deposited in the malkhana the same day. We have also
examined the photocopy of the Ex.PW47/A, which is the
malkhana register. It first refers to the various items taken by
D Inspector Sunit Kumar from the hospital earlier that day
including the clothes and there is some overwriting with respect
to the vaginal swabs and slides. Mr. Sushil Kumar has thus
raised a suspicion that the entry with regard to the vaginal swabs
and slides was an interpolation with no sanctity attached to the
E semen samples. We are unable to accept this submission for
the simple reason that the post-mortem clearly refers to the
aforesaid samples along with several other items which had
been taken from the dead body on the 25th January 1996 and
which had been retained at the Safdarjung Hospital till 29th
F January 1996 when they had been handed over to Inspector
Sun it Kumar who had handed them over further to PW Ohri who
had deposited them in the malkhana. Furthermore, a perusal
of the post-mortem report Ex.P33/B bears an endorsement that
three items that is a copy of the report, the inquest proceedings
G and the dead body had been handed over to the Constable at
6 p.m. on 25th January 1996 but all the other items had been
taken by the CBI on the 29th January. Significantly we find an
acknowledgement at the top right hand corner of the post-
mortem report which reads as under:
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 937
[HARJIT SINGH BEDI, J.]
"issued against authority letter No.399/3/1 (S)/SIV V SIC-II A
dated 29.1.96 from CBI - authorizing Shri Sunit Sharma
lnsp. CBI."
Inspector Sunit Kumar had also acknowledged the receipt
of the articles on the 29th at Point X. It is thus clear that the B
three first mentioned items had been handed over to the
Constable on the 25th January at 6 p.m. but the other items had
been handed over to the Inspector on the 29th. It bears notice
that the 26th to 28th January 1996 were holidays which was
perhaps the cause as to why some of the items including the C
semen swabs and stains and the clothes of the deceased
remained in the custody of the hospital authorities till the 29th.
We have also perused the evidence of PW47 Constable
Rajinder Singh of the CBI who was the In-charge of the
malkhana on the day in question. He admitted that there was
no mention that the swabs and slides were contained in a glass D .
jar, but the fact that the entries had been interpolated has been
emphatically denied. It is also significant that these items had
been taken by Inspector Shekhawat from the malkhana on the
31st January 1996 in a sealed condition and in a glass jar and
handed over to the CCMB Hyderabad in an identical condition. E
In this connection, we have gone through the evidence of PW49
Dr.Lalji Singh who deposed on oath that all the aforesaid items
aiong with several others, (which we will deal with later) had
been received in a sealed condition as his organization did not
accept any item which was without a seal. He further stated that F
along with samples he had received the sample seals which
had been affixed on the bundle of clothes and the bottle carrying
vaginal swabs and slides. It is also of significance that the
vaginal swabs and slides find mention on the third page of the
post-mortem report whereas the other items taken from the G
dead body are on internal page. one. This raises the possibility
that the Head Constable had, at the initial stage, missed the
articles on page 3 and thereafter rectified the mistake. No
adverse inference against the prosecution can, thus, be drawn
with regard to the retention of the items in the malkhana. It is H
938 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A also pertinent that no suggestion was put either to the Doctors
or to DSP Ohri or to Sub-Inspector Shekhawat that the seals
of the aforesaid articles had been tampered with.
23. We now come to the suspicion with regard to the
B taking and storage of the blood samples of the appellant. PW
Dr. N.S.Kalra who was the Head of the Bio-Chemistry
Department of Ram Manohar Lohia Hospital at the relevant
time deposed that by letter Ex.34/A a request had been made
to the hospital to take blood samples of the appellant in two
vials totalling 20 ml. Ms. Godawari, a Laboratory Assistant, was
C accordingly directed to take the blood samples in two 10 ml.
syringes whereafter the blood was transferred to 4 vials each .
containing 5 ml. which were duly sealed and tape applied over
them which was signed by Dr. Kalra, Dr. S.K.Gupta and DSP
Ohri and a memo Ex.PW34/B to that effect was prepared. He
D further deposed that the said vials had been kept in a
refrigerator under his supervision and were taken by the CBI
officers on January 31, 1996 from him and that while the vials
remained in his custody, they were not tampered with in any
manner. He also testified that whenever blood was kept in a
E refrigerator, as in the present case, there was little possibility
of evaporation if the rubber cork was ai1· tight and in cross-
examination he deposed that the watery constituent of blood
would not evaporate in the cool atmosphere of a refrigerator.
Mr. Sushi! Kumar has accordingly argued that though the CBI
F had requested for two· samples of 10 ml. each yet the 20 ml.
blood had been divided into four vials, and that when the
samples had been opened in the Laboratory at Hyderabad, only
12 ml. blood in all had been recovered from the four vials. We,
however, find that no suspicion can be raised with regard to
G the sanctity of the samples. It has come in the evidence of Dr.
Lalji Singh that 12 ml. of blood said to be that of the appellant
Santosh Kumar Singh in four sterile vials containing about 3
ml. each had been received through Inspector Ranbir
Shekhawat along with other items. He further explained that in
H cross-examination that if the blood samples were kept in a
SANTOSH KUMAR SINGH v. STATE THR. CBI 939
[HARJIT SINGH BEDI, J.]
refrigerator and handed over to the Inspector on the 31st A
January and received in the laboratory the next day, it was not
likely that 2 ml. out of each of the four vials would evaporate
although some blood could have evaporated. He further stated
that there appeared to be some leakage in the vials as traces
of blood appeared to be in the material with which the vials had B
been sealed although this fact did not find mention in his report.
Here too, we must emphasize that the blood samples were in
the custody of the hospital till they were received by the
Inspector Shekhawat for the first time on 31st January 1996 and
he had left for Hyderabad the same day and handed over the c
samples and other items to the laboratory on 1st February
1996. The trial court has had much to say on this aspect. It has
held that Dr. N.S.Kalra was a doctor who could be influenced
in the matter. Reliance has also been placed on the document
PW34/A of Shri Bhatnagar addressed to the Medical D
Superintendent of RML Hospital that two samples of blood of
10 ml. be taken from the accused and then goes on to say that
20 ml. blood was taken but it had been divided into four vials
of 5 ml. each which was against the requisition. The trial court
observed that as per the deposition of CW1 Dr. G.V.Rao of E
the CCMB, Hyderabad the samples had been received in the
laboratory but only 12 ml. blood had been found in the vials ·
which raised serious questions and the prosecution was thus
called upon to explain as to how 8 ml. of blood had
disappeared and in the absence of a proper explanation, the
possibility that the said samples had been tampered with, could F
not be ruled out. The trial court has, accordingly, rejected the
evidence of Dr. N.S.Kalra, Dr. Lalji Singh and Dr. G.V.Rao as
to why and how the quantity of the blood may have been
reduced. The court also examined the document PW-34/B,
which is the memo relating to the taking of the blood samples, G
and by some very curious reasoning concluded that some
additions had been made in the document as some words were
not in their proper place and sequence and appeared to have
been squeezed in and that the handwriting was also not
identical. We have minutely perused the document ourselves H
940 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A and can find no such flaw. We also find absolutely no reason
to accept the very broad and defamatory statement of the trial
court that Dr. N.S.Kalra was a convenient witness for the
prosecution as there is no basis for this finding. On the other
hand, there is ample evidence to suggest that the blood
B samples had been kept in the hospital in a proper way and
handed over to Inspector Shekhawat who had taken them to
the CCMB, Hyderabad and that the explanation tendered by
Dr. Lalji Singh and. Dr. G.V.Rao as to why the quantity of blood
may have been reduced, merits acceptance. The High Court
c was, therefore, fully justified in holding that the trial court's
conclusions on the question of the retention and dispatch of the
swabs and slides and the clothes of the deceased the blood
samples was faulty, and based on a perverse assessment of
the evidence.
D 24. We now come to the circumstance with regard to the
comparison of the semen stains with the blood taken from the
appellant. The trial court had found against the prosecution on
this aspect. In this connection, we must emphasize that the
Court cannot substitute its own opinion for that of an expert,
E more particularly in a science such as DNA profiling which is
a recent development. Dr. Lalji Singh in his examination in chief
deposed that he had been involved with the DNA technology
ever since the year 1974 and he had returned to India from the
U.K. in 1987 and joined the CCMB, Hyderabad and had
F developed indigenous methods and techniques for DNA finger
printing which were now being used in this country. We also
see that the expertise and experience of Dr. Lalji Singh in his
field has been recognized by this Court in Kamalantha & Ors.
Vs. State of Tamil Nadu 2005 (5) SCC 194. We further notice
G that CW-1 Dr. G.V.Rao was a scientist of equal repute and he
had in fact conducted the tests under the supervision of Dr.Lalji
Singh. It was not even disputed before us during the course of
arguments that these two scientists were persons of eminence
and that the laboratory in question was also held in the highest
H esteem in India. The statements of Dr. Lalji Singh and Dr. 1G.V.
SANTOSH KUMAR SINGH v. STATE THR. CBI 941
[HARJIT SINGH BEDI, J.]
Rao reveal that the samples had been tested as per the A
procedure developed by the laboratory, that the samples were
sufficient for the purposes of cor:riparison and that there was
no possibility of the samples having been contaminated or
tampered with. The two scientists gave very comprehensive
statements supported by documents that the DNA of the semen B
stains on the swabs and slides and the underwear of the
deceased and the blood samples of the appellant was from a
single source and that source was the appellant. It is significant
that not a single question was put to PW Dr. Lalji Singh as to
the accuracy of the methodology or the procedure followed for c
the DNA profiling. The trial court has referred to a large number
of text books and has given adverse findings on the accuracy
of the tests carried out in the present case. We are unable to
accept these conclusions as the court has substituted its own
opinion ignoring the complexity of the issue on a highly technical D
subject, more particularly as the questions raised by the court
had not been put to the expert witnesses. In Bhagwan Das &
Anr. vs. State of Raj~sthan AIR 1957 SC 589 it has been held
that it would be a dangerous doctrine to lay down that the report
of an expert witness could be brushed aside by making
reference to some text on that subject without such text being E
put to the expert.
25. The observations in Gambhir vs. State of Maharashtra
AIR 1982 SC 1157 are even more meaningful in so far as we
are concerned. In this case, the doctors who had conducted the F
post-mortem examination could not give the time of death. The
High Court, in its wisdom, thought it proper to delve deep into
the evidence and draw its own conclusions as to the time of
death and at the same time, made some very adverse and
caustic comments with regard to the conduct of the Doctors, G
and dismissed the appeal of the accused. This Court (after the
grant of special leave) allowed the appeal and reverting to the
High Court's opinions of the doctors observed:
"The High Court came to its own opinion when the doctors
failed to give opinion. The Court has to draw its conclusion H
942 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A on the basis of the materials supplied by the expert
opinion. The High Court has tried to usurp the functions of
an expert."
This is precisely the error in which the trial court has fallen.
It is significant that at the initial stage only Dr. Lalji Singh had
B
been summoned to prove the DNA report and it was during the
course of final arguments that the court thought it fit to summon
Dr. G.V.Rao as a court witness. This witness was subjected to
an extra-ordinarily detailed examination-in-chief and even more
gruelling and rambling a cross-examination running into a
C hundred or more pages spread over a period of time. The trial
court finally, and in frustration, was constrained to make an order
that the cross-examination could not go on any further. We are
of the opinion that the defence counsel had attempted to create
confusion in the mind of CW-1 and the trial court has been
D swayed by irrelevant considerations as it could hardly claim the
status of an expert on a very complex subject. We feel that the
trial court was not justified in rejecting the DNA Report, as
nothing adverse could be pointed out against the two experts
who had submitted it. We must, therefore, accept the DNA
E report as being scientifically accurate and an exact science as
held by this Court in Smt. Kamti Devi v. Poshi Ram AIR 2001
SC 2226 .. In arriving at its conclusions the trial court was also
influenced by the fact that the semen swabs and slides and the
blood samples of the appellant had not been kept in proper
F custody and had been tampered with, as already indicated
above. We are of the opinion that the trial court was in error on
this score. We, accordingly, endorse the conclusions of the High
Court on circumstance No.9.
26. Mr. Sushil Kumar, has almost at the fag end of his
G arguments, dealt with the question of motive. He has pointed
out that it was by now well settled that motive alone could not
form the basis for conviction as in a case of circumstantial '
evidence the chain envisaged was to be complete from the
beginning to the end and to result in the only hypothesis that
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 943
[HARJIT SINGH BEDI, J.]
the accused and the accused alone was guilty of the crime. In A
this connection, he has pointed out that the oral and
documentary evidence relied upon by the prosecution raised
some misgivings and confusion in the relationship of the
appellant and the deceased inter-se, but they could not have
been the cause for the rape and murder. The learned ASG has, B
however, taken us to the evidence to argue that there was
absolutely no doubt that the appellant felt frustrated as the
deceased was not giving in to his overtures despite having been
pursued relentlessly over two years, and had in anger and
frustration, committed the rape and murder. It has been c
reiterated that the finding of the trial court and the High Court
on the motive (which were circumstances Nos.1, 2 and 3) has
been concurrent inasmuch that the appellant had the motive to
commit the murder.
27. We have gone through the evidence on this score. As D
already observed, this comprises ocular and documentary
evidence. The relevant documents in this connection are
Ex.PW6/C, a complaint dated 25th of February 1995 in which
the deceased referred to an earlier incident in which the
appellant had been harassing her either at her residence 8-1/ E
4 Safdarjung Enclave or in the Faculty of Law and then pointed
out that on that day as well when she had left her house at 10.30
a.m. to go to a friends place she had found the appellant
following her and trying to stop her at every traffic light and
harassing and shouting at her on which she had made a F
complaint at the R.'K.Puram Police Station and as a
consequence thereof the appellant had tendered two apologies
Ex.PW6/DB, and an undertaking not to harass her any more
either himself or through his friends or to spoil her reputation.
These apologies also dated 25th of February 1995 were G
witnessed by PW Lt. Col. S.K.Dhar and Sub-Inspector Rajinder
Kumar. This was followed by another complaint Ex.PW 11/A
regarding some incident at the Khyber Petrol Pump and another
undertaking was given by the appellant that he would not harass
her on which she withdrew her complaint. The trial court further H
944 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A noticed that yet another incident had happened at about 3 p.m.
on 16th August 1995 when the appellant had followed her home
all the way from the University. A message was accordingly
flashed from a PCR and received at Police Station, Vasant
Kunj, and was recorded in the Daily Entry Register as Ex.
B PW12/A. An enquiry was entrusted to PW-12 Head Constable
Vijay Kumar who went to the house of the deceased and took
a report Ex.PW1/A dictated by her to her father and the
appellant was thereafter arrested and taken to the police station
along with his motorcycle. In this report the deceased wrote
c about the earlier incidents of harassment ·and also the
apologies that had been tendered by the appellant from time
to time. It appears, however, that the police was under some
influence and instead of pursuing the complaint to its logical
end, several police officers, including the SHO, ACP Parbhati
D Lal and ACP Satender Nath persuaded the deceased to
compromise the matter on which the deceased was compelled
to state that the complaint be kept pending for the time being.
We also find that an incident had happened on 16th February
1995 which led the deceased to file an FIR against the
appellant under Section 354 of the IPC at Police Station,
E Maurice Nagar in which she wrote that despite the fact that a
PSO had been attached with her because of the appellant's
misconduct, he had still continued to chase and harass her and
that as she was entering her class room he had caught hold of
her arm and threatened her and tried to forcibly talk to her and
F that she had immediately called her PSO who made a call to
the Maurice Nagar Police Station and the police had come and
taken him away. In addition to this, we find that the appellant
had made a complaint against the deceased to the University
authorities and followed it up with a reminder that she was
G pursuing two courses in the University at the same time which
was against the rules with the result the University had issued
a show cause notice to her and that the matter was still under
enquiry with the University when the present incident happened.
There is ocular evidence as well. PW1 Shri C.L.Mattoo,
H deposed that when he visited Delhi in December 1995 he
SANTOSH KUMAR SINGH v. STATE THR. CBI 945
[HARJIT SINGH BEDI, J.] . ·
noticed that the appellant and two 6{ttiree boys were passing A
lewd remarks at his daughter. Likewise, it has come· in the
evidence of PW44 Smt. Rageshwari Mattoo, who testified that
while she was admitted in the AllMS, the appellant had
repeatedly called the deceased on telephone despite the fact
that she was not taking his calls. The courts below have also B
placed reliance on the evidence of three witnesses in support
of the telephone calls i.e. PW10 Tanwir Ahmed Mir, PW13
Satender Kumar Sharma, Advocate and PW16 Ms. Manju
Bharti, Advocate who came into witness box to state that the ·
.deceased had told them that the appellant was harassing her c
. on the.telephone as well. We also notice other evidence with
regard to the sexual harassment. PW44 deposed that when she
had visited Lt. Col. S.K.Dhar's home Delhi in January 1995 (with
whom· the deceased was then residing), the appellant had tried
to forcibly enter the house while she was present on which she D
had told him that as the deceased was already engaged, he
should not harass her, She also referred to the fact that in
February 1995 when she had visited Delhi again, Bishamber,.
the domestic servant of Lt. Col. S.K.Dhar had brought a
bouquet from the outside with a chit reading "Valentines Day • E
with love from Santosh". These incidents of harassment were
confirmed by Lt. Col. S.K.Dhar as well who deposed that the
appellant had been harassing the deceased from November
1994 onwards and would repeatedly come to his house on his
black Bullet motorcycle. In the light of the above evidence, the
motive stands proved beyond any doubt. It appears that as the F
· appellant's overtures had been rebuffed by the deceased, he
had resorted to harassing her in a manner which became more
and more aggressive and crude as time went by. It is evident
that the appellant was well aware of her family background and
despite several complaints against him and the provision of a G
PSO, he had fearlessly and shamelessly pursued her right to
the doorsteps of her residence ignoring the fact that she had
first lived in the house of Lt. Col. S.K.Dhar, an Army Officer from
the end of 1994 onwards and after January 1996 with her
paren'ts, her father too being a very senior officer in a Semi- H
946 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Government Organization. It has come in the evidence of PW
Smt. Rageshwari Mattoo that the police officers before whom
the appellant had been brought on the complaints had desisted
from taking any action against him and had, on the contrary
harassed her, her husband and the deceased by summoning
B and detaining them in the Police Station at odd hours and for
long periods of time. It was this behaviour that led the trial court
to comment very adversely on the conduct of some of the police
officers involved. We endorse the findings of the trial court that
the conduct of these officers deserves to be condemned as
c reprehensible.
28. We are, therefore, of the opinion that circumstances 1
to 3 which have been found by two courts against the appellant
and in favour of the prosecution constitute a very strong chain
. in the prosecution's case. We agree with Mr. Sushi! Kumar's
D broad statement that motive alone cannot form the basis of
conviction but in the light of the other circumstances, the motive
goes a very long way in forging the links in the chain.
29. A few additional submissions made by Mr. Sushi!
E Kumar while arguing the matter in reply must now be dealt with.
He has first pointed out that the trial court had acquitted the
appellant and the High Court had reversed the judgment and.
the matter before us was, therefore, in the nature of a fi.rst
appeal and the guiding principles relating to interference in such
F an appeal by the High Court postulated in Aru/velu & Anr. vs.
State & Anr. (2009) 10 SCC 206 had to be adhered to. He
has also submitted that it was now well settled that all
circumstances which were to be used against an accused in a
criminal case were to be put to him in his statement under
G Section 313 of the Cr.P.C. failing which the said circumstance
could not be taken into account. Reliance for this plea has been
placed on lshwar Singh vs. State of UP. (1976) 4 SCC 355
and Ashraf Ali vs. State of Assam (2008) 16 SCC 328.
Elaborating on this aspect, it has been pointed out that the
allegation that the appellant had strangulated the deceased with
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 947
[HARJIT SINGH BEDI, J.]
the use of a wire of the heat convector and the fact that the A
helmet had been used for causing the injuries to the deceased
had not been put to him. The learned ASG too has placed
reliance on a large number of judgments to the effect that the·
omission to put a question to an accused would not ipso-facto
result in the rejection of that evidence as the onus lay on the B
accused to show prejudice. These judgments are Sharad
Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC
116 and Suresh Chandra Bahri vs. State of Bihar 1995 Supp
. (1) sec 80.
30. We first examine the argument with regard to the C
propriety of the High Court's interference in an acquittal appeal
assuming the present matter to be a first appeal. Undoubtedly,
a judgment of acquittal rendered by a trial court must be given
the greatest consideration and the appellate court would be
slow in setting aside that judgment, and where two views are D
possible, the one taken by the trial court would not be disturbed.
On the contrary if the trial court's judgment was perverse,
meaning thereby that it was not only against the weight of
evidence but was all together against the evidence, interference
was called for. The High Court was alive to its limitation in such E
a matter and while dealing with this argument first expressed
its shock and observed that though virtually all the findings were
in favour of the prosecution, yet curiously, the decision had been
rendered in favour of the accused. The judgment of the trial court
was accordingly held to be perverse and against the evidence. F
The High Court (in paragraph 28) observed thus:
"We have carefully and extensively gone through the
material on record with the aid of counsel for the parties.
Since this is an appeal from judgment of acquittal we can G
interfere only if we are satisfied that the findings of the trial
court are perverse and have resulted in grave miscarriage
of justice. High Court while hearing an appeal against
acquittal has the power to reconsider the whole evidence
and to come to its own conclusion in place of the fin.dings
H
948 SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.
A of the trial court but only if the decision of the trial court is
· such which could not have been arrived at all by reasoning."
31. We too believe from a perusal of the evidence that the
High Court's observations were justified on the facts. In other
words, even assuming that the matter before us was to be
8
treated as a first appeal, we too would have interfered in the
matter and set aside the judgment of the trial court, as it was
against the evidence and to desist from doing so would cause
great injustice not only to the prosecution but even to the
C deceased victim and her family.
32. We now come to the argument with regard to the
omission in putting certain questions to the appellant. It does
appear from the circumstance that it was the appellant who had
strangulated the deceased and that too with the convector wire
D had not been put to the appellant but it is clear from question
No.86 that the fact that death had been caused by asphyxiation
as a result of strangulation by ligature and that the ligature
material was one with a soft surface, had been put to him. We
also see that when the injuries at serial Nos.1 to 11 in the post-
E mortem report Ex.PW33/B had been put to the appellant, he
had merely made a statement that he did not know anything.
We further notice from the evidence of PW-33 Dr.AK.Sharma
that the cause of death was strangulation and that the nature
of injury Nos. 4 and 5, which referred to the ligature marks on
F the· neck, had been pointedly asked of the Doctor in cross-
examination. Likewise, the fact that the helmet had been used
as weapon of offence, had not been specifically put to the
appellant but here again we find absolutely no prejudice to the
appellant on this score as the death had been caused not by
the use of the helmet but by strangulation and that the appellant
G and his counsel were fully alive to the prosecution story that the
helmet had been used as a weapon to beat the deceased into
submission. lshwar Singh's case (supra) cited by Mr. Sushil
Kumar was not dealing with a statement under Section 313 of
the Cr.P.C. The facts show that the ballam or bhala which were
H
SANTOSH KUMAR SINGH v. STATE THR. CBI 949
[HARJIT SINGH BEDI, J.]
alleged to be the murder weapons had not been shown to the A
doctor and this Court held that in this situation, it was not
possible to convict the accused (who had been charged under
Section 302/149) under Section 302 IPC simpliciter. This
present case does not fall within this category. Mr. Sushil Kumar
has, however, placed greater reliance on Ashraf Ali's case 8
(supra) whereby this Court relying on a large number of
judgments observed as under:
"The object of Section 313 of the Code is to establish a
direct dialogue between the court and the accused. If a
point in the evidence is important against the accused, and C
the conviction is intended to be based upon it, it is right
and proper that the accused should be questioned about ·
the matter and be given an opportunity of explaining it.
Where no specific question has been put by the trial court
on an inculpatory material in the prosecution evidence, · D
it would vitiate the trial. Of course, all these are subject
to rider whether they have caused miscarriage of justice
or prejudice. This Court also expressed a similar view in
S.Hamam Singh v. ·State (Delhi Admn.) while deallng with
Section 342 of the Criminal Procedure Code, 1898 E
(corresponding to Section 313 of the Code). Non-
indication of inculpatory material in its relevant facts by the
trial court to the accused adds to the vulnerability of the
prosecution case. Recording of a statement of the
accused under Section 313 is not a purposeless exercise." F
33. Undoubtedly, the observations are extremely relevant
for the purpose of this case but each case has to be seen on
its own facts, more particularly that the omission had caused
prejudice to the accused as would be clear from the rider put
by the court in this very case (and highlighted by us)~ On the G
contrary, we find that prejudice must ensue has been reiterated
by this Court in Suresh Chandra Bahri's case (supra) and a
very large number of other cases. This is what the Court has ·
· to say in1 Bahri's case:
H
950 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A "Learned Senior Counsel Shri Sushi/ Kumar appearing
for the appellant Raj Pal Sharma submitted that in view
of the fact that no question relating to motive having been
put to the appellants on the point of motive under Section
313 of the Code of Criminal Procedure, no motive for the
commis~ion of the crime can be attributed to the
B
appellants nor the same can be reckoned as
circumstance against the appellants. It is no doubt true
that the underlying object behind Section 313 CrPC is to
enable the accused to explain any circumstance appearing
against him in the evidence and this object is based on
c the maxim audi alteram partem which is one of the
principles of natural justice. It has always been regarded
unfair to rely upon any incriminating circumstance without
affording the accused an opportunity of explaining the said
incriminating circumstance. The provisions in Section
D 313, therefore, make it obligatory on the court to question
the accused on the evidence and circumstance
appearing against him so as to apprise him the exact
case which he is required to meet. But it would not be
enough for the accused to show that he has not been
E / questioned or examined on a particular circumstance but
he must also show that such non-examination has
actually and materially prejudiced him and has resulted
in failure of justice. In other words in the event of any
inadvertent omission on the part of the court to question
F the accused on any incriminating circumstance
appearing against him the same cannot ipso facto vitiate
the trial unless it is shown that some prejudice was caused
to him. In Bejoy Chand Patra v. State of WB., this Court
took the view that it is not sufficient for the accused merely
G to show that he has not beeri fully examined as required
by Section 342 of the Criminal Procedure Code (now
Section 313 in the new Code) but he must also show that
such examination has materially prejudiced him. The same
view was again reiterated by this Court in Rama Shankar
H Singh v. State of WB. In the present case before us it may
SANTOSH KUMAR SINGH v. STATE THR. CBI 951
[HARJIT SINGH BEDI, J.]
be noted that no such point was raised and no such A
objection seems to have been advanced either before the
trial court or the High Court and it is being raised for the
first time before this Court which appears to us to be an
afterthought. Secondly, learned counsel appearing for the
appellants was unable to place before us as to what in B
fact was the real prejudice caused to the appellants by
omission to question the accused/appellant Suresh Bahri
on the point of his motive for the crime. No material was
also placed before us to show as to what and in what
manner the prejudice, if any, was caused to the appellants c
or any of them.
Apart from what has been stated above, it may be
pointed out that it cannot be said that the appellants were
totally unaware of the substance of the accusation against
them with regard to the motive part. In this regard a D
reference may be made to Question Nos. 5, 6 and 7 which
were put to the appellant Suresh Bahri in the course of his
statement recorded under Section 313 CrPC. The sum
and substance of these questions is that from the
prosecution evidence it turns out that the acquitted accused E
Y.D. Arya the maternal uncle of the appellant Suresh Bahri
was living in a portion of the upper storey of his house at
Delhi. He with the consent of Santosh Bahri the mother of
Suresh Bahri, was interfering in the family affairs as well
as in business matters by reason of which the maternal F
uncle had to leave the house and that having regard to the
future of her children Urshia Bahri not only wanted to
manage the property but also to dispose of the same which
was not liked by Suresh Bahri and with a view to remove
Urshia Bahri from his way the appellant Suresh Bahri G
wanted to commit her murder. In view of these questions
and examination of Suresh Bahri, it cannot be said that he
was totally unaware of the substance of the accusation and
charge against him or that he was not examined on the
question of motive at all. In the facts and circumstances H
952 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A discussed above it cannot be said that any prejudice was
caused to the appellant. The contention of the learned
counsel for the appellants in th!s behalf therefore has no .
merit."
B 34. We see that the facts of each case have to be
examined but the broad principle is that all incriminating
material circumstances must be put to an accused while
recording his statement under Section 313 of the Code, but if
any material circumstance has been left out that would not ipso-
facto result in the exclusion of that evidence from consideration
C unless it could further be shown by the accused that prejudice
and miscarriage of justice had been sustained by him. We see ·
from the case in hand that not only were the questions pertaining
to the helmet and the ligature marks on the neck put to the
Doctor and even in a way to the appellant but the defence
D counsel had raised comprehensive arguments on these core
issues not only before the trial court and the High Court but
before us as well. The defence was, therefore, alive to the
circumstances against the appellant. No prejudice or
miscarriage of justice has, thus, been occasioned.
E
35. We have also kept in mind the broad principle that a
particularly nasty and revolting a crime imposes a yet greater
caution on the Court which must resist the tendency to look
beyond the file and not be swayed by the horror of the crime
F or the character of the accused. In Kashmira Singh vs. State
of Madhya Pradesh AIR 1952 SC 159 it has been observed
thus:-
"The murder was a particularly cruel and revolting one and
for that reason lit will be necessary to examine the
G evidence with more than ordinary care lest the shocking
nature of the crime induce an instinctive reaction against
a dispassionate judicial scrutiny of the facts and law.·
36. Likewise the observations in Ashish Batham vs. State
H of Madhya Pradesh (2002} 7 SCC 317 too are relevant:
SANTOSH KUMAR SINGH v. STATE THR. CBI 953
[HARJIT SINGH BEDI, J.]
"Realities or truth apart, the fundamental and basic A
presumption in the administration of criminal law and justice
delivery system is the innocence of the alleged accused
and till the charges are proved beyond reasonable doubt
on the basis of clear, cogent, credible or unimpeachable
evidence, the question of indicting or punishing an accused B
does not arise, merely, carried away by the heinous nature
of the crime or the gruesome manner in which it was found
to have been committed. Mere suspicion, however, strong
or probable it may be is no effective substitute for the legal
proof required to substantiate the charge of commission c
of a crime and graver the charge is, greater should be the
standard of proof required. Courts dealing with criminal
cases at least should constantly remember that there is a
long mental distance between "may be true" and "must be
true" and this basic and golden rule only helps to maintain
D
the vital distinction between "conjectures" and "sure
conclusions" to be arrived at on the touchstone of a
dispassionate judicial scrutiny based upon a complete and
comprehensive appreciation of all features of the case as
well as quality and credibility of the evidence brought on
E
record."
The aforesaid principles have been scrupulously adhered
to by us while hearing this matter over almost 5 days.
37. We now come to the question of sentence. It has been F
submitted by Mr. Sushil Kumar that the present case was not
one which fell in the category of the 'rarest of rare cases' as
several mitigating circumstances with respect to the sentence
were discernable. He has first pointed out that the High Court
had reversed an acquittal judgment based exclusively on
G
circumstantial evidence. He has further argued that the
a
appellant was young man about 24/25 of age on the date of
incident and had been led astray by the vagaries of youth and
that after his acquittal in December 1999, he had got married
(in the year 2003) and a baby girl had been born to him and
H
954 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A his wife before the judgment of the High Court had been
delivered in October 2006. These submissions have been
stoutly opposed by the learned ASG who has submitted that
even the trial court had given a positive finding that the motive
and murder were truly barbaric and revolting and had been
s preceded by continuous harassment of the deceased over a
period of two years and the appellant was an advocate with an
over indulgent police officer father who had repeatedly come
to the rescue of his son.
38. We have considered the arguments of the learned
C counsel and have also gone through the judgments relied upon
by them in support of their respective cases.
We think that the answer on the question of the sentence
can be found in the judgment of the High Court itself. We quote
D from paragraph 3 of the sentencing part of the judgment
delivered on 30th October 2006:
"We have heard learned counsel for the parties and have
given our consideration to what has been placed before
us. We need hardly say that sentencing is the most
E
difficult part of a judgment and this indeed has been a
case here. There is absolutely no doubt in our mind that
what was required of S.antosh Singh was exemplary
behaviour being a son of a police officer and also a lawyer
himself yet with a premeditated approach he continued to
F harass the victim for nearly two years and ultimately in spite
of repeated warnings by the police and his undertakings
to them went about committing a most ghastly act. The act
itself sent ripples in the society and showed how insecure
a citizen can get against this kind of a person. In the various
G judgments which have been referred to by counsel from
both sides we find the principles laid down to the
considered while deciding the question of sentence are
best reported in 'Bachan Singh vs. State of Punjab' AIR
1980 SC 898 and 'Machhi Singh vs. State of Punjab,
H 1983 SC 211. These cases sum up the law on the subject
SANTOSH KUMAR SINGH v. STATE THR. CBI 955
[HARJIT SINGH BEDI, J.]
of death penalty which we have kept in mind. Evaluating A
the circumstances in favour and against the convict which
have already been enumerated above, we find that the
aggravating circumstances referred to by the Additional
Solicitor General for outweigh the circumstances which
according to the counsel to the convict are mitigating B
circumstances, although we do not consider them to be so.
We are thus of the opinion that for a crime of this sort which
has been committed with premeditation and in a brutal
manner the convict deserves no other sentence but death."
The underlined words themselves give a hint as to the C
sentence that should be awarded in this case. Undoubtedly the
sentencing part is a difficult one and often exercises the mind
of the Court but where the option is between a life sentence
and a death sentence, the options are indeed extremely limited
and if the court itself feels some difficulty in awarding one or D
the other, it is only appropriate that the lesser sentence should
be awarded. This is the underlying philosophy behind 'the rarest
of the rare' principle. Furthermore, we see that the mitigating
circumstances need to be taken into account, more particularly
that the High Court has reversed a judgment of acquittal based E
on circumstantial evidence, the appellant was a young man of
24 at the time of the incident and, after acquittal, had got
married and was the father of a girl child. Undoubtedly, also the
appellant would have had time for reflection over the events of
the last fifteen years, and to ponder over the predicament that F
he now faces, the reality that his father died a year after his
conviction and the prospect of a dismal future for his young
family. On the contrary, there is nothing to suggest that he would
not be capable of reform. There are extremely aggravating
circumstances as well. In particular we notice the tendency of G
-parents to be over indulgent to their progeny often resulting in
the most horrendous of situations. These situations are
exacerbated when an accused belongs to a category with
unlimited power or pelf or even more dangerously, a volatile and
heady cocktail of the two. The reality that such a class does H
956 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A exist is for all to see and is evidenced by regular and alarming
incidents such as the present one. Nevertheless, to our mind,
the balance sheet tilts marginally in favour of the appellant, and
the ends of justice would be met if the sentence awarded to
him is commuted from death to life imprisonment under Section
B 302 of the Indian Penal Code; the other part of the sentence
being retained as it is. With this modification in the sentence,
the appeal is dismissed. ·
D.G. Appeal dismissed.
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