Satya Murti @ Satti vs The State
2007 Latest Caselaw 412 Del

JUDGMENT

P.K. Bhasin, J.

1. The appellant Satya Murti @ Satti seeks to challenge his conviction under Sections 302/377/364 IPC passed by Additional Sessions Judge, New Delhi in Sessions Case No. 92/1996 in respect of FIR No. 508/95, Police Station Kalkaji vide judgment dated 14.10.2003. The appellant also challenges the order on sentence dated 20.10.2003 whereby he has been sentenced to life imprisonment for his conviction under Section 302 IPC besides fine of Rs. 2,000/- with a default clause. He has been also sentenced to undergo rigorous imprisonment for a period of 10 years and fine of Rs. 1,000/- for his conviction under Section 377 IPC and for his conviction under Section 364 IPC he has been sentenced to undergo rigorous imprisonment for a period of 10 years and also a fine of Rs. 1,000/-.

2. As per the prosecution case, the appellant was living in a jhuggi in Sudhar Camp at Kalkaji, New Delhi. On 16/09/95 at about 7.30 p.m. he kidnapped one eight years old girl who was also living with her parents in a jhuggi in the Sudhar Camp. After kidnapping her the appellant took her somewhere, raped her and also had carnal intercourse against the order of nature and not only that, after ravishing her he strangulated her to death and to avoid detection of the crime came to be prosecuted for these heinous acts needs to be noticed. It all started with the lodging of a missing report by the father of the victim child. In the early hours of 17.09.1995 Ramu, the father of the unfortunate victim,(who was not examined because he had expired, as stated by the investigating officer(PW-16) in his cross-examination) went to Kalkaji police station and lodged a report that his eight years old daughter Babia was playing with children outside the house at about 8 p.m. on 16/09/95 but thereafter she had not come back and although efforts were made to search her she could not be found. He requested for police help. That missing report was entered in the daily diary register maintained at the police station as DD No. 26A(Ex.PW-11/A). The case was entrusted to PW-13 Sub Inspector Dhiraj Singh for enquiry who then visited Sudhar Camp and contacted the complainant Ramu at his jhuggi. It appears that by that time PW-2 Kartik, who was also living in Sudhar Camp in the house of one uncle of the missing girl PW-1 T.Ramu, had on coming to know that Babia was missing informed Ramu, father of the deceased, that he had seen Satya Murti (the appellant herein) resident of jhuggi No. 59, Sudhar Camp on 16.09.1995 at about 7.45 p.m. taking away Babiya. He had also come to know that during the night some boys of the Camp had seen Satya Murti washing clothes and bathing at the public bathroom although prior to that day he had never been seen bathing and washing clothes at night. That information was passed over to Sub Inspector Dhiraj Singh. SI Dhiraj Singh became suspicious about Satya Murti and went in to his jhuggi where he was not found and then he went to his place of work and there also he was not available.

3. As per the further prosecution case, the uncle of the deceased PW-1 T. Ramu Along with some persons of his Camp while searching the missing girl in the evening at about 6 p.m. on 17.09.1995 found the dead body of the missing girl lying in a gutter in the jungle area behind the Punj Sons factory in Kalkaji. Stones had been kept on the dead body to avoid its detection. The complainant was informed who reached there and identified the dead body to be that of his missing daughter. On getting that information the SHO of the area PW-16 Inspector Dharam Pal Singh also reached that place and conducted inquest proceedings. He noticed injury marks on the face, chest, back, both palms and on the temple region of the dead body. Blood was oozing out from the palms and eyes. One string(dori) was tied around the neck and there was a ligature mark also. Inspector Dharam Pal Singh filled up the inquest form Ex.PW-16/B and he also recorded the statement(Ex.PW-16/F) of the father of the deceased girl wherein he again stated about the missing of his girl since 16.09.1995 as also about the information given by Kartik that he had seen Satya Murti taking away his daughter at about 7.45 p.m. on 16.09.1995. Inspector Dharam Pal Singh then prepared a rukka(Ex.PW-16/G) and sent the same to the police station for registration of a case under Sections 364/302/201 IPC and on that basis FIR No. 508/95 was recorded at Kalkaji police station on the same day at about 7.40 p.m. From the place of recovery of the dead body the investigating officer seized one blood-stained stone and some concrete and one handkerchief which was also lying there. All seized articles were sealed.

4. On 18.09.1995 post-mortem examination of the dead body of the deceased was conducted by PW-7 Dr. O.P. Murti at the All India Institute of Medical Sciences and after completing the examination at 2.30 p.m. he gave his report Ex. PW 7/A according to which the cause of death of the deceased was due to asphyxia as a result of ante-mortem ligature strangulation. The autopsy surgeon on external examination of the dead body noticed nine injuries on different parts of the body and all the injuries were found to be ante-mortem and recent in duration. Injury No. 2 was a ligature mark all around the neck and injury No. 3 was an abraded contusion below the anterior axillary fold in front of left chest. There was also a contused swelling in front of right chest below the anterior axillary fold. Anus was dilated, margins contused admitting two fingers. The autopsy surgeon also found that there was a recent anus penetration by adult erect penis. Vaginal hymen was found to be intact not admitting even a single finger. Time since death, according to PW-7, was about two days. Anal and vaginal swabs/slides and the clothes of the deceased which she was wearing at the time of post-mortem examination were preserved for semen and spermatozoa examination and seven packets sealed with the seal of AIIMS were handed over to Constable Jai Prakash(PW-3) who in turn handed them over to the investigating officer vide memo Ex.PW-3/A and the same were then deposited in the malkhana same day vide entry Ex.PW-9/B. On 21.09.1995 the appellant was arrested from J.J. Colony, Shakurpur near a nala. Pursuant to his disclosure statement he got recovered one shirt, pant and the underwear which he was wearing at the time of incident from his jhuggi No. 59, Sudhar Camp. The Investigating Officer took into possession the underwear and seized it after sealing vide memo Ex.PW-8/F and shirt-pant were also sealed and seized vide memoEx.PW-8/G. The accused also pointed out the place of incident and memo to that effect is Ex.PW-8/E. These clothes of the accused were also deposited in the malkhana on same day vide entry Ex.PW-9/C. After his arrest the appellant was got medically examined and the doctor found him to be fit for performing sexual intercourse. His MLC is Ex.PW-7/B. During the investigation the vaginal/anus swabs/slides of the deceased her clothes and clothes of the accused were sent to the Forensic Scientific Laboratory(FSL) at Malviya Nagar, New Delhi where on examination by the analysts reports Ex.PW-16/N and Ex.PW-16/O were given according to which human semen of 'A' group was detected in the vaginal and anal swabs of the deceased and also on her shirt and underwear. Semen of 'A' group was also detected on the underwear of the accused.

5. On the completion of the investigation the appellant/accused was charge-sheeted and the learned trial court tried him for the offences under Sections 364/377/376/302 IPC. The prosecution had examined 17 witnesses to establish its case. The appellant when examined under Section 313 Cr.P.C. claimed that he had been falsely implicated. He, however, did not lead any evidence in defense to show as to how he was saying that he had been falsely implicated.

6. Learned trial court after analysing the prosecution evidence and particularly, that of PW-2 Kartik and PW-15 Smt. Aroma, both of whom were examined as witnesses of 'last seen' circumstance, and the medical evidence as well as the findings of the FSL came to the conclusion that it was the appellant only who after kidnapping Babiya had unnatural sex with her and thereafter killed her. The appellant was, however, not found guilty of the charge under Section 376 IPC. Consequently, the appellant was convicted under Sections 364/377/302 IPC. Feeling aggrieved with the decision of the trial court the appellant has preferred this appeal.

7. We have heard the learned Counsel for the appellant and learned additional public prosecutor for the State who have taken us through the relevant evidence of the prosecution witnesses. The main attack of the learned Counsel for the appellant has been on the evidence of PW-2 Kartik who, as noticed already, is a witness who claimed to have seen the appellant taking away the deceased girl on 16.09.1995 at about 7.45 p.m. This witness has deposed that he knew accused Satya Murti as well as the deceased. In his cross- examination this fact was not challenged on behalf of the appellant/accused. Further statement of PW-2 was to the effect that on 16-09-95 at about 7.45 p.m. he had seen the accused taking Babiya towards garden side and at that time Babiya was weeping and Satya Murti was telling her that he was taking her to her mother. Thereafter the accused took Babiya speedily. Next day when he saw some crowd outside the house of uncle of Babiya, namely,T. Ramu(PW-1) with whom he(PW-2) used to reside in Sudhar Camp, he enquired from a lady present there as to what was the matter and then that lady told him that Babiya was missing. Then he told that lady that on the previous day he had seen the accused taking away Babiya. In cross-examination PW-2 stated that he was living in the house of T. Ramu(PW-1) who had helped him when he was in need and that his relation with T. Ramu was like a brother. He lived with T.Ramu for about 4-5 months. He also stated that the house of T. Ramu was 4-5 jhuggis away from the jhuggi of Babiya and further that parents of Babiya used to visit the house of T. Ramu occasionally and sometimes Babiya also used to come there. PW-2 also stated that his statement was recorded by the police in the evening of 17-09-95. He admitted that he had not informed the parents of Babiya on 16-09-95 that he had seen the accused taking her away. The evidence of PW-2 has been attacked on the ground that he did not know English as well as Hindi and his statement before the Investigating Officer was recorded with the help of an interpreter and even at the time of his evidence in Court one Interpreter had been called by the Court for interpreting whatever questions were being put to this witness and the answers given by him. Learned counsel submitted that the interpreter whose services were utilized by the investigating officer at the time of recording of his statement under Section 161 Cr.P.C. has not been examined and that is a serious infirmity in the prosecution case and for that reason evidence of PW-2 becomes unreliable. There is no doubt that for interpreting whatever this witness had to state before the investigating officer an interpreter knowing Tamil, since this witness knew Tamil only, was associated. In Court also one interpreter was called at the time of recording of the statement of PW-2 and statement of that interpreter was also recorded to the effect that he had correctly interpreted the statement of PW-2. The interpreter whose services were utilized by the investigating officer has not been examined by the prosecution. However, in our view non-examination of that interpreter has no adverse effect on the veracity of the testimony of PW-2. At this stage what we are analysing is his testimony in court and not what he had stated before the Investigating Officer. Whatever was his statement recorded by the investigating officer is not a substantive piece of evidence. The question of examination of the interpreter whose services were availed of by the investigating officer might have been of some significance if in the cross-examination of PW-2 any contradictions or improvements vis-à-vis his police statement had been elicited from him and he had claimed that he did not know what the investigation had recorded at that time. That is not the situation here. No contradictions/omissions or improvements with reference to his police statement could be elicited in his cross-examination. We have gone through the entire cross-examination of this witness and find that nothing could be elicited from him on any material aspect from which it could be said that he was deposing falsely against the appellant nor any motive was attributed to him for deposing falsely against the appellant.

8. Learned counsel for the appellant has also submitted that the testimony of PW-2 should not be relied upon because he had not informed anyone on 16-09-95 itself that he had seen the accused taking away the deceased child. However, that fact also does not make his testimony doubtful because on 16.09.1995 there was no occasion for him to have suspected anything foul and nothing was elicited from which it could be inferred that on 16/09/95 he had come to know that the girl whom he had seen with the accused at about 7.45 p.m. had not returned home. He has deposed that he had come to know only on 17.09.1995 that Babiya was missing and then he disclosed that he had seen the accused taking away the deceased last night. He also claimed that on the night of 16/09/95 the parents of Babiya had not come to the house of T.Ramu in search of Babiya. In his cross- examination it was sought to be extracted from him that on 16/9/95 he had atleast met PW-1 T.Ramu. By getting it admitted from PW-2 the accused wanted to show that if at all he had seen the accused taking away Babiya on 16/9/95 he would have told that fact to T.Ramu that night itself since T.Ramu had come to know about the missing of Babiya that day itself. From PW-2, however, this fact could not be got admitted. He kept maintaining that on 16/9/95 when he came back to his house in the night T.Ramu was not there and thereafter he himself had gone to sleep and got up only in the morning. Learned counsel also argued that this witness knew the parents of the deceased but still he did not ask the accused as to why he was taking her towards park side telling her that he was taking her to her mother when in fact her house was on the opposite direction and that conduct of the witness also makes his evidence doubtful. We, however, do not agree with this submission also because when same thing was asked on behalf the accused in cross-examination the witness clarified that he did not tell that to the accused since he thought that the mother of Babiya might be working somewhere towards the park side. We, also find from his cross- examination that it was not even put to him that the accused had not taken away Babiya on 16/9/95 as was being claimed by him. In our view, the testimony of PW- 2 is wholly reliable and has been rightly relied upon by the learned trial Court.

9. The prosecution has also relied upon the evidence of PW-15 Smt. Aroma. She was examined on 03-11-2000. She has deposed that she was working as a maid servant in Kalkaji in the year 1995 and she knew Satya Murti as he used to reside in her neighborhood. She further deposed that five years ago when she was coming from market after purchasing an electric switch she had seen accused Satya Murti going with an 8 years' old girl Babiya. She further deposed that at about 8 p.m. when the parents of Babiya asked her about Babiya she told them that she had seen Babiya with Satya Murti. She, however, did not know what had happened with Babiya. Since this witness had deviated from her police version she was cross-examined by the public prosecutor. In that cross-examination she, however, denied the suggestion that she had told the police that she suspected Satya Murti regarding the murder of Babiya only when her dead body was recovered from the jungle. In her cross-examination on behalf of the accused she stated that the accused was living in the house which was adjacent to her house. She denied the suggestion that she had not seen the accused with Babiya. From the cross-examination of this witness it is clear that the accused is not disputing that this witness was knowing him as a neighbour. In respect of the evidence of this witness learned Counsel for the appellant has argued that if actually she had seen the deceased child with the accused and had also informed her parents same day then girl's father would have expressed his suspicion about the appellant when he had gone to the police station in the morning on 17/9/95 but in his report he did not take the name of the appellant which shows that PW-15 had neither seen the deceased with the accused nor had she told so to the parents of the deceased. We are, however, of the view that for this reason testimony of PW-15 that she had seen the accused with Babiya cannot be doubted. On going through the evidence of PW-2 and PW-15, both of whom corroborate each other, we find that both of them are trustworthy witnesses having no reason to depose falsely against the appellant and, in fact, no motive was attributed to them in their cross-examination for falsely deposing against the appellant. The learned trial Court has rightly relied upon their evidence on the circumstance of 'last seen'. In fact, even if we ignore the evidence of PW-15

10. PW-1 T.Ramu is the uncle of the deceased child. He has deposed about the fact that on coming to know that Babiya was missing he along with his friends had started searching her but could not trace her till midnight. He has also deposed that on the next day in the morning Kartik had told him that he had seen Babiya going along with the accused on the previous night at about 7/7.15 p.m. Thereafter he searched the accused but he was not available at his house as well as at his place of work and thereafter they had suspected the hand of the accused in the disappearance of the girl. This witness has also deposed about the recovery of the dead body of the deceased from the jungle. In his cross-examination it was sought to be established that Kartik(PW-2) had met him on the night of 16-09-95 but at that time Kartik had not told him anything about his having seen the accused taking away Babiya at about 7.30 p.m. However, this witness claimed that on the day of incident when he had come back from duty at night Kartik, who was living with him, was not at home and when he(PW-1) came back late in the night Kartik who had come by that time had already gone to sleep and so only in the morning Kartik had informed him that he had seen accused taking away Babiya last evening. Therefore, evidence of PW-2 cannot be doubted because he had not disclosed anything to PW-1 on the night of 16-09-95, as has also been argued before us by the counsel for the appellant. In the cross-examination of PW-1 it was not challenged that the accused was not available at his house as well as his work place as has been deposed by PW-1. Therefore, his statement to that effect stood admitted. PW-13 SI Dhiraj Singh has also deposed that the accused was not available at his house and his place of work when he had gone there in his search. This statement was also not challenged in cross-examination of this witness. PW-8 ASI Brahm Prakash and PW- 16 Inspector Dharam Pal Singh, the investigating officer have deposed that the accused could be arrested on 21-09-95 from J.J.Colony, Shakur Pur. The accused has not disputed this statement of these two witnesses. He has not explained as to what he was doing in J.J.Colony. In his statement under Section 313 Cr.P.C. when this statement was put to him he simply stated 'I do not know'. We have, therefore, no manner of doubt that the accused after committing the crime was avoiding being detected and that circumstance also shows his guilty mind.

11. As noticed already, the prosecution is also relying upon the reports of FSL and the trial court has also rightly relied upon the same. As per the FSL reports the underwear of the accused which was seized by the investigating officer at the time of his arrest as well as the vaginal/anal swabs of the deceased and her shirt and underwear had semen of 'A' group. The appellant has not claimed that the police had not seized his underwear. He has also not been able to bring out any infirmity in the evidence of the autopsy surgeon(PW-7) regarding the preservation of the vaginal swabs etc. of the deceased as well as of the police officials who took the samples of vaginal swabs etc. to FSL. PW-8 has deposed about the sealing of the underwear of the accused at the time of his arrest. PW-9 HC Prabhu Dayal has deposed about deposit of the clothes of the accused as well as the sealed pulandas received from AIIMS after the post-mortem examination in the malkhana. Although in the cross-examination of PW-9 it was suggested to him that the articles seized and which he claimed to have deposited in the malkhana were taken back by the investigating officer for sprinkling blood on the clothes of the deceased and thereafter the same were taken back from the investigating officer and were deposited in the malkhana and shown to have been deposited but we have no reason to accept that anything of this sort had been done by the police officials since they had no axe to grind against the appellant. The appellant in his statement under Section 313 Cr.P.C. did not take such a stand. He has not claimed that his blood group was not 'A'. It is also not his case that at any stage after his arrest he had been forced by the police officials to give the sample of his semen to be used for connecting him with the crime. We, therefore, reject the argument that articles sent to FSL were tampered with. The findings of the FSL regarding matching of the semen found in the vaginal/anus swabs of the deceased as also on her clothes with the semen found on the underwear of the accused has put the prosecution case in an impregnable position.

12. Learned counsel for the appellant has also submitted that as per the malkhana record there were 15 seized articles deposited but the FSL report Ex. PW 16/N shows that 13 items only were sent there for examination and that discrepancy also introduces an element of doubt about the proper custody of the seized articles and for that reason also no reliance can be placed on the findings of the FSL. We, however, feel that nothing turns around this fact because the police was not supposed to send each and every seized article to FSL and it had sent only those articles which required examination at the FSL and as has just now been noticed in the preceding para, the result of examination of the material exhibits has blocked all the exit routes for the appellant.

13. No other argument has been advanced on behalf of the appellant.

14. We now sum up the circumstances which stand established beyond any shadow of doubt. The first circumstance which implicates the appellant is that of the deceased having been seen in the company of the accused on 16-09-95 at about 7.45 p.m. as deposed by PW-1 Kartik and which version is corroborated by PW-15 Smt. Anaro also. The second circumstance which also stands established from the evidence of PW-1 Kartik is that when he was seen taking away the deceased girl she was crying and the appellant was telling her that he was taking her to her mother. The third circumstance established is that on the underwear of the appellant/accused human semen of 'A' group was detected and human semen of the same group was also found on the clothes of the deceased as well as in her vaginal/anus swabs. These findings of the FSL fully corroborate the medical evidence showing that the deceased had been sodomised. The fourth circumstance established by the prosecution is that from the morning of 17-09-95 till 21-09-95 he was neither at his home nor at his work place and so he was absconding. All these established circumstances it stands proved beyond any shadow of doubt that the deceased Babiya was kidnapped and then violently molested, sodomised and was then murdered by the appellant. There is no circumstance pointing towards the innocence of the appellant and all these circumstances are consistent only with the hypothesis of his guilt. We find no infirmity in the judgment of the learned trial Court holding the appellant guilty of the offences of kidnapping, having carnal intercourse with the deceased and of murder. The judgment under challenge deserves to be sustained and the present appeal being devoid of any merit is liable to be dismissed.

15. In the result, we dismiss Criminal Appeal No. 809/2004 and confirm the conviction of the appellant Satya Murti for all the offences for which he has been found guilty by the trial Court vide judgment dated 14-10-2003 in Sessions Case No. 92/1996 in respect of FIR No. 508/95 of police station Kalkaji and the order on sentence dated 20-10-2003 is also maintained.