LexSTATE, GOVT. OF NCT OF DELHI versus SUN IL AND ANOTHER
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A STATE, GOVT. OF NCT OF DELHI V. SUN IL AND ANOTHER NOVEMBER 29, 2000 B [K.T. THOMAS AND R.P. SETHI, JJ.) Criminal law Penal Code 1860-Sections 364, 376, 377 and 302 read with Section C 34-Respondents charged for kidnapping, rape and murder of four year old-Sessions Court convicting the Respondents on the basis of autopsy report and evidence of (PWs 8 & IO-High Court acquitting both based on minor discrepancies and Medico legal Certificate issued by a doctor who examined the deceased before autopsy-Held, minor discrepancies are common D features in any trial-Decision of High Court set aside-Conviction upheld E Evidence Act-Section 27-Criminal Procedure Code 1973-Sections 100(5), 161-Held, there is no requirement to obtain signatures of independent witnesses while recovering an object pursuant to information supplied by the accused. The Respondents were charged under Sections 364, 376, 377 and 302 read with 34 of the Indian Penal Code for offence of kidnapping, rape and murder of a four year old girl child. The Sessions Court convicted both the Respondents under all the provisions and sentenced R to death and S to F imprisonment for life and other sentences. The Sessions Court found that prosecution has established the circumstances namely that S had taken the child from the house of PWS on the day of occurrence, that the child was recovered from the house of S breathless, that the child was lying naked by the side of R who was in deep sleep, that S then said that the child was sent by him to heaven and that the blood-stained nicker of the child was recovered G from the house of R on the basis of a statement given to the police. The Sessions Court convicted both the Respondents for murder, rape and unnatural offence while S was additionally convicted for kidnapping. The High Court allowed the appeal by the Respondents, and acquitted both. The High Court disbelieved the prosecution on the ground that there was no need for S to take the clothes and utensils while taking the child, that there was nothing H JM STATE.GOVT. OFNCTOF DELHI v. SUNIL AND ANR. 145 to indicate that PW 10 made any enquiries about them, that PW8 could not A explain as to what she understood when S wanted to take away the child with him, that none from the neighbourhood of PW8 was examined to corroborate her, and that. her testimony was contradictory to that of PWlO. The High Court expressed doubt about the correctness of finding given by PWl, the Doctor who conducted the post-mortem on tbe ground that the Doctor who first B examined the deceased only found multiple bruises all over the body. Allowing the Appeal, the Court HELD : 1. Though there are discrepancies between the evidence of PWs 8, 10 and 12, there is no discrepancy worth quoting for consideration as they C are immaterial. Such discrepancies are common features in the testimony of any two witnesses. It was too much of a strain for the judicial mind to ferret out some minor discrepancies as between the testimony of those three witnesses. Even the other reason advanced by the High Court are exjacie puerile and evidence given on oath by PWlO and her associate PW8 cannot be jettisoned on such insignificant reasons. The High Court ought not to have D sidelined the evidence of those witnesses. [152-C-D] 2. Recovery of the nicker is evidenced by the seizure memo Ext. PW- 10/G. It was signed by PW 10 besides its auther PW17. There is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent E witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. (152-H; 153-C) Transport Commissioner, Andhra Pradesh, Hyderabad & Anr. v. F S. Sardar Ali & Ors .. AIR (1983) SC 1225, referred to. 3. It is fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by G independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document p
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