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Wednesday, February 26, 2014

Murder Case - Suppression of genesis of the case - entitled for benefit of doubt - Father killed his two children by silting their throat with a blade - No eye witness - alleged incident said to be happen in the house - no one heard the crys of children - accused not escaped - Prosecution failed to establish any link and the story of police not believable as they suppressed the genesis of the case - Accused is entitled for the benefit of doubt - Apex court set aside the conviction and acquitted the accused = RADHEY SHYAM … APPELLANT Versus STATE OF RAJASTHAN … RESPONDENT = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41249

Murder Case - Suppression of genesis of the case - entitled for benefit of doubt - Father killed his two children by silting their throat with a blade - No eye witness - alleged incident said to be happen in the house - no one heard the crys of children - accused not escaped - Prosecution failed to establish any link and the story of police not believable as they suppressed the genesis of the case - Accused  is entitled for the benefit of doubt - Apex court set aside the conviction and acquitted the accused =
On 24/2/1997,  the
appellant cut the throats of his children Rakesh and Rajkanta with  a  blade
in the house of his in-laws where he was staying for his treatment.  He  was
suffering from tuberculosis.  According to the  prosecution,  this  incident
was witnessed by Banwari, the  brother-in-law  of  the  appellant.   Banwari
informed about it to his brother  Kajod,  who  had  come  from  the  market.
Kajod found Rakesh dead.  Rajkanta was alive and was  in  pain.  Kajod  took
her to the doctor and the doctor  declared  her  dead.   Kajod  lodged  FIR.=
Apex court conclusion 
 if  the  appellant  had  committed  such  a
heinous crime he would continue to sit in  the  room.   His  first  reaction
would have been to run away.  It is also difficult to appreciate as  to  how
those who had gathered at the scene of offence kept quiet after seeing  such
a gruesome crime.  The reaction of the people would have been  to  take  him
to the police station.  The prosecution is heavily relying on the fact  that
the appellant was alone in the room along with the children and no one  else
could have gone inside the  room  to  kill  the  children.   Normally,  this
argument would have impressed us if  the  prosecution  had  established  the
other circumstances to the hilt.  But in this case the prosecution  has  not
established even a single circumstance beyond doubt.  We are of the  opinion
that the prosecution has suppressed the genesis of the case.   The  incident
does not appear to have happened in the  manner  in  which  the  prosecution
wants the court to believe it had happened.  The police came  to  the  scene
after about one hour. As to what happened in  between  is  anybody’s  guess.
The story of alleged dying declaration of Rajkanta is not established.   The
discovery of blade from the almirah is not established and has rightly  been
rejected  by  the  trial  court.   The   panch   witness   turned   hostile.
Resultantly, the recoveries are not established.  PW-13 Vimala, the wife  of
the appellant, categorically stated that the appellant  loved  his  children
and he was a normal person.  His conduct prior  to  the  incident  does  not
suggest guilty mind.  He fed his children Jalebi and  Kachodi.   He  ordered
tablets for Rakesh because he had high fever.  The injuries suffered by  the
children are so grave that the children would  have  raised  cries.   Nobody
has stated that they heard any cries.  The story that the child witness  saw
the incident through  the  hole  is  difficult  to  digest.  No  independent
witness has been examined and the evidence of all the witnesses  is  replete
with inconsistencies. All these circumstances  make  the  prosecution  story
doubtful.  The appellant, therefore, must be given benefit of doubt. In  the
circumstances we set aside the impugned order.  The  appellant  is  directed
to be released forthwith unless required in any other case.

19.   The criminal appeal is disposed of in the afore-stated terms.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41249
RANJANA PRAKASH DESAI, MADAN B. LOKUR

NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 593 OF 2005


RADHEY SHYAM                      …          APPELLANT

                                   Versus

 STATE OF RAJASTHAN                 …        RESPONDENT


                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.


1.      The appellant was  convicted  by  Additional  Sessions  Judge  Kota,
Rajasthan for offence punishable under Section  302  of  the  IPC.   He  was
sentenced to life imprisonment.

2.     In short, the case of the  prosecution  is  that  on  24/2/1997,  the
appellant cut the throats of his children Rakesh and Rajkanta with  a  blade
in the house of his in-laws where he was staying for his treatment.  He  was
suffering from tuberculosis.  According to the  prosecution,  this  incident
was witnessed by Banwari, the  brother-in-law  of  the  appellant.   Banwari
informed about it to his brother  Kajod,  who  had  come  from  the  market.
Kajod found Rakesh dead.  Rajkanta was alive and was  in  pain.  Kajod  took
her to the doctor and the doctor  declared  her  dead.   Kajod  lodged  FIR.
Investigation was started.  The appellant was  arrested.   After  completion
of the investigation, the appellant came to be charged under Section 302  of
the IPC.  In support of its case, prosecution examined 14  witnesses.   PW-2
Banwari is the eye-witness.   He  is  a  child  witness.   His  evidence  is
material to the  prosecution.  The  appellant  pleaded  not  guilty  to  the
charge.  He stated that he was falsely implicated in the case,  because  his
relations with his wife’s family were strained.

3.    Shri Santosh Mishra,  learned  counsel  appearing  for  the  appellant
submitted that the entire case rests on the testimony of  a  child  witness.
The child witness’s evidence has to be carefully scrutinized  and,  only  if
it is found reliable, it can be accepted. He submitted that  PW-2  Banwari’s
evidence does not answer the test  laid  down  by  this  Court  in  numerous
judgments and, hence, no reliance can be placed on him.  In support of  this
submission, counsel relied on Rameshwar s/o. Kalyan Singh  v.  The State  of
Rajasthan[1], Panchhi & Ors.  v.  State of  U.P.[2],  Ratansinh  Dalsukhbhai
Nayak  v.  State of Gujarat[3] and Raj Kumar  v.  State  of  Maharashtra[4].
 He submitted that the entire incident appears to be inherently  improbable.
If throats of two children were cut with a blade,  they  would  have  raised
loud cries and that would have brought the neighbours to the room.   Counsel
submitted that there are inconsistencies in the evidence of  the  witnesses.
The story that PW-2 Banwari saw the incident through the hole  of  the  door
is difficult to digest.  Counsel submitted that recovery of blade  from  the
possession of  the  appellant  is  also  not  proved.  Motive  is  also  not
established.  In the circumstances benefit of doubt must  be  given  to  the
appellant, who is in jail for about 19 years.

4.    Shri Milind Kumar, learned counsel for the State, on the  other  hand,
submitted that  child  witness  PW-2  Banwari  inspires  confidence.  It  is
established that the appellant was alone in the room with his children  and,
hence, none else but he   can be held responsible for their murder.  Counsel
pointed out that pertinently on the clothes  of  the  appellant,  blood  was
found.  The blood group of those stains  matched  with  that  of  the  blood
found on  the  clothes  of  deceased  Rajkanta.   This  indicates  that  the
appellant killed his  children.   Counsel  submitted  that,  therefore,  the
conviction and sentence of the appellant be confirmed.

5.    The post-mortem notes make it clear that the throats of  the  children
were cut.   We have gone through the evidence  rather  minutely  because  we
felt that the approach of the trial court and the High Court was not  right.
 We shall therefore briefly refer to the evidence.

6.    There is no challenge to the prosecution case  that  at  the  material
time,  the  appellant  was   staying   in   his   in-law’s  house  with  his
children.   PW-1 Kajod stated that on the date of  incident  at  about  2.00
p.m., the appellant sent him to bring Kachodi and Jalebi.   Within  half  an
hour, he came back.  Since deceased Rakesh had  high  fever,  the  appellant
told him to bring a tablet from the shop.  When he came back with a  tablet,
he saw a crowd gathered in front of his house. The appellant was  holding  a
blade in his  hand  and  throats  of  Rakesh  and  Rajkanta  had  been  cut.
Rajkanta  was in pain. He lifted her and took her to Dr.  R.N.  Khan,  where
she was declared dead.  He brought her home.  He then gave his statement  to
the police.  In his cross-examination he stated that his sister  and  mother
had gone to the market.  He added that his sisters PW-3  Suganya  and  PW-10
Nati  had gone to the market and when he went to purchase the  tablet  there
was no one present at home except the appellant and his children Rakesh  and
Rajkanta. When his police statement was shown to  him,  he  stated  that  he
could not say why the fact that he had seen a blade in the appellant’s  hand
was not recorded by the police.  He then stated that  he  did  not  see  the
blade in the appellant’s hand.  He denied  that  the  police  recovered  the
blade from the almirah.  He added that the blade was in  possession  of  the
police. He stated that when he came back, the  appellant  was  sleeping  and
there was blood on his clothes. He stated that blood stained clothes of  the
appellant were seized and he  signed  on  the  panchnama.   He  changed  his
version and stated that the police did not seize and seal the blood  stained
clothes of the appellant before him.  He clearly admitted that  he  had  not
actually seen the appellant cutting the throats of the deceased but  he  got
to know about it from the people. Therefore, this  witness  is  not  an  eye
witness.  While in examination-in-chief, he states  that  he  had  seen  the
appellant holding a blade in his hand, in the cross-examination,  he  denies
having seen a blade in the appellant’s hand.  His case that his sisters  had
gone to the market is not consistent with the evidence of PW-2 Banwari,  the
eye-witness as we shall soon see.  He stated that he had  conversation  with
deceased Rajkanta when he was carrying her to the doctor and she  named  the
appellant as her assailant, but  this  fact  is  not  noted  in  his  police
statement.  He has denied that blood stained clothes of the  appellant  were
seized in his presence, thus making the panchnama on which he is  stated  to
have signed a fabricated document.

7.    PW-2 Banwari is a child witness.  He was ten years old  when  he  gave
evidence.  Before  we  proceed  to  his  evidence,  we  must  refer  to  the
judgments of this Court on which reliance is placed by the counsel  to  show
how child witness’s evidence is to be appreciated.

8.    In Ratansinh Dalsukhbhai Nayak, this Court considered the  evidentiary
value of the testimony of a child witness and observed as under:

      “The decision on the question whether the child witness has sufficient
      intelligence primarily rests with the  trial  Judge  who  notices  his
      manners, his apparent possession or lack of intelligence, and the said
      Judge may resort to any examination which will tend  to  disclose  his
      capacity  and  intelligence  as  well  as  his  understanding  of  the
      obligation of an oath.  The decision of the trial court may,  however,
      be disturbed by the higher court if from  what  is  preserved  in  the
      records,  it  is  clear  that  his  conclusion  was  erroneous.   This
      precaution is  necessary  because  child  witnesses  are  amenable  to
      tutoring and often live in a world of make-believe.  Though it  is  an
      established principle that child witnesses are dangerous witnesses  as
      they are pliable and  liable  to  be  influenced  easily,  shaken  and
      moulded, but it is  also  an  accepted  norm  that  if  after  careful
      scrutiny of their evidence the court  comes  to  the  conclusion  that
      there is an impress of truth in it, there is no obstacle in the way of
      accepting the evidence of a child witness.”

9.     In  Panchhi,  after  reiterating  the  same  principles,  this  Court
observed that the evidence  of  a  child  witness  must  be  evaluated  more
carefully and with greater circumspection because a child is susceptible  to
be swayed by what others tell him and, thus, a  child  witness  is  an  easy
pray to tutoring.  This Court further observed that  the  courts  have  held
that the evidence of  a  child  witness  must  find  adequate  corroboration
before it is relied upon.  But, it is more a rule of practical  wisdom  than
of law.  It is not necessary to refer to other judgments  cited  by  learned
counsel because they reiterate the same principles.   The  conclusion  which
can be deduced from the relevant pronouncements of this Court  is  that  the
evidence of a child witness must be subjected to close scrutiny to rule  out
the possibility of tutoring.  It can be relied upon if the court finds  that
the child witness has  sufficient  intelligence  and  understanding  of  the
obligation of an oath.   As  a  matter  of  caution,  the  court  must  find
adequate corroboration to the child witness’s evidence.  If found,  reliable
and truthful and corroborated  by  other  evidence  on  record,  it  can  be
accepted without hesitation.  We will scrutinize PW-2 Banwari’s evidence  in
light of the above principles.

10.   PW-2 Banwari stated that on the date  of  incident  his  sisters  PW-3
Suganya and PW-10 Nati were at  home.   PW-1  Kajod  was  also  there.   The
appellant and his children were in the house.  At  about  1.00  p.m.,  Kajod
was sent to bring Jalebi.  He was sitting outside the house.   According  to
him PW-3 Suganya was also sitting outside the  house.   At  that  time,  his
cousin came there and asked for a matchbox.  He went to the house  to  bring
the matchbox.  From the hole of the door he saw the  appellant  cutting  the
necks of Rakesh and Rajkanta with a blade.   He  then  opened  the  door  by
inserting his fingers through the hole.  He saw the  appellant  cutting  the
neck of  deceased  Rakesh.   He  went  to  call  his  sister  PW-3  Suganya.
According to him, the appellant cut the neck of Rajkanta while he  had  gone
to call his sister PW-3 Suganya. Both his sisters rushed to the room.   PW-1
Kajod also came there. Upon arrival of PW-1 Kajod, he told  him  the  entire
story.  In the cross-examination, he again reiterated that PW-3 Suganya  and
PW-10 Nati were present near the scene of offence. They  were  sitting  with
him outside the  house.   Thus,  there  is  a  glaring  discrepancy  in  the
evidence of PW-1 Kajod and this witness as regards presence of PW-3  Suganya
and PW-10 Nati near the scene of offence  at  the  time  of  incident.   His
version that he saw the incident through the  hole  of  the  door  does  not
inspire confidence.  He has changed his version frequently.  At  one  stage,
he says that when he went to bring the matchbox, he peeped through the  hole
of the door and saw necks of Rakesh and Rajkanta being cut.   Then  he  says
that he opened the door by inserting his fingers through the  hole  and  saw
the appellant cutting the throat of Rakesh and when  he  went  to  call  his
sister, the appellant cut the throat of Rajkanta.  A  doubt  is,  therefore,
created as to whether he really saw the incident.  Moreover, if the  throats
of two children were cut, it is inconceivable that he would not  have  heard
cries of the children.  It is also difficult to accept that  at  that  time,
his cousin came there to ask for a matchbox and he  went  to  the  house  to
bring the matchbox.  This story appears to have been  created  to  establish
that PW-2 Banwari went to the house and saw the incident  through  the  hole
of the door.  In such a situation, when it is difficult  to  place  reliance
on  the  testimony  of  a  child  witness,  it  is  necessary  to  look  for
corroboration to his evidence from other witnesses. We find that  the  other
prosecution witnesses do not corroborate the evidence of  PW-2  Banwari,  at
all, as we shall soon see.  It is, therefore, very difficult to rely on  PW-
2 Banwari’s evidence.

11.   PW-3 Suganya  stated  that  at  about  2.30  p.m.  the  appellant  was
sleeping in her maternal house at Kotdi.  Deceased Rakesh and Rajkanta  were
playing near him.  At that time she, her  sister  PW-10  Nati  and  children
were present there.  The appellant  asked  for  Jalebi  and  Kachodi.   PW-1
Kajod went and brought Jalebi and Kachodi.  The appellant ate them and  gave
some to his children Rakesh and Rajkanta.  According to  her,  Rajkanta  had
fever and, therefore, the appellant had sent PW-1 Kajod  to  bring  tablets.
When she went inside the room, the appellant sent  her  away.  He  told  her
younger sister PW-10 Nati that he wanted to ease himself and, therefore, PW-
10 Nati should stay outside.  PW-10 Nati then sat  in  the  courtyard  along
with the children.  After that, the appellant shut  the  door.   Thereafter,
when she went with a tablet to the house, PW-10 Nati told her  that  as  the
appellant wanted to ease himself she should not go inside.  She,  therefore,
sat outside the house.  Thereafter, her cousin Man  Singh  came  there.   He
wanted a matchbox.  PW-2 Banwari went to the house to  bring  the  matchbox.
PW-2 Banwari saw through the hole of the closed door the  appellant  cutting
the throat of his daughter with a blade.  Thereafter, he unbolted  the  door
by putting his fingers inside.  He then screamed that the appellant had  cut
the throats of the children and called her.  She rushed to the  room.    She
saw the appellant sitting inside the room after cutting the throats  of  his
children.  There was blood in the room.  Clothes of the appellant were  also
blood stained.  When she entered the room, she did not see anything  in  the
hands of the appellant.  She saw a blade lying there.  According to her, PW-
1 Kajod took the children to the hospital but the children were  dead.   She
admitted that she went to the room after PW-2 Banwari  called  her  and  she
had not seen anything  before  that.    It  is  clear  from  PW-3  Suganya’s
evidence that she is not an eye-witness.  Her version differs from  that  of
PW-2 Banwari.  PW-2 Banwari stated that he saw Rakesh’s  throat  being  cut.
He went to call PW-3 Suganya.  By that  time,  the  appellant  had  cut  the
throat of Rajkanta.  PW-3 Suganya stated that  PW-2  Banwari  saw  that  the
appellant  had  cut  the  throats  of  the  children.   He   screamed   and,
thereafter, she rushed to the house.

12.   PW-7 Prithviraj turned hostile.   He  did  not  support  PW-1  Kajod’s
version that he accompanied  PW-1  Kajod  to  the  doctor  when  PW-1  Kajod
carried Rajkanta to the doctor; that he was present when the  incident  took
place and that he saw the chopped throats of the deceased  children.   PW-10
Nati, the sister of PW-1 Kajod also turned hostile.  She went to the  extent
of saying that she did not know who killed Rakesh and Rajkanta.

13.   PW-12 Tej Singh, the Investigating Officer gave a  new  twist  to  the
prosecution story.  He stated that while  in  custody,  the  appellant  gave
information that he had hidden a blade in the upper section  of  an  almirah
situated in the room.  He recorded the said statement and, pursuant  to  the
said statement, he seized the blade, which  was  kept  in  the  almirah  and
sealed it.  This is contrary to the evidence of PW-1 Kajod  that  the  blade
was in the hand of the appellant and the evidence of PW-3 Suganya  that  the
blade was lying in  the  room.   He  also  stated  that  the  appellant  was
admitted in the hospital because he was unwell.  However, he  admitted  that
no hospital record was produced by him about the admission of the  appellant
in the hospital.  He stated that he did not know whether there were any  cut
marks or abrasions on the fingers of the appellant.   PW-13  Vimala  is  the
wife of the appellant.  Her evidence gives a set  back  to  the  prosecution
case.  She stated that she went to the market leaving her deceased  children
with the appellant. According to her, she  rushed  to  the  house  when  the
police told her that the appellant had cut  the  throats  of  her  children.
Surprisingly, in the cross-examination, she stated that the  appellant  used
to love her children very much and that he was  also  not  angry  with  her.
She further stated that the appellant  was  a  normal  person  and  was  not
suffering from insanity.

14.   Upon a careful perusal of the evidence on record, we feel  that  there
are too many drawbacks in  the  prosecution  case.   Firstly,  we  find  the
prosecution story to be inherently improbable.   The  post-mortem  notes  of
the deceased children show that their throats were badly  cut.   The  injury
of Rajkanta is described as under:

           “Incised wound 13”x1”xTr.cut Tr.upto cervical  vertebral  column
      in front of  neck  middle  region  cutting  all  structures  including
      muscles,  vessels,  nerves,  trachea  &  Oesophagues  etc.    Bleeding
      profusely & soft red clots present.


            The cause of death was shock as a result of ante  mortem  injury
      to neck leading to haemorrhage.”


      The injury of Rakesh is described as under:

            “Incised wound 8”x1”xTr.cut Tr.upto vertebral column  (Cervical)
      x 1.1/2” cutting all structures including muscles,  vessels,  trachea,
      Oesophagues & nerves etc.  Bleeding profusely & soft red blood clots.


            The cause of death was shock as a result of ante  mortem  injury
      to neck leading to haemorrhage.”


      There is nothing to suggest that the children were  drugged.   If  the
appellant had cut the throats of  the  children  in  such  a  brutal  manner
leading to above-mentioned serious injuries, the children would have  raised
loud cries drawing attention of PW-2 Banwari and his  sisters  PW-3  Suganya
and PW-10 Nati to the house.  Neighbours would have also rushed  there.   It
is inconceivable  that  the  appellant  would  carry  out  such  a  sinister
operation within a short span, quietly without drawing attention  of  people
sitting outside.  Moreover, while the appellant was cutting  the  throat  of
one child, the other child would have reacted and tried to  stop  him.   The
children would certainly have resisted the attempt in their  own  way.   The
appellant is stated to have used a shaving blade which had  sharp  edges  on
both sides.  In the scuffle which must have ensued, the appellant must  have
received injuries on his fingers.   As  already  noted,  the  appellant  was
admitted in a hospital but the Investigating Officer has  not  produced  his
hospital record which could have shown injuries  sustained  by  him  on  his
fingers.  The prosecution story that blade was  used  by  the  appellant  is
also not established.  PW-1 Kajod stated that he saw the  appellant  holding
a blade in his hand.  In the cross-examination, he stated that  he  did  not
see a blade in the appellant’s  hand,  but  it  was  in  possession  of  the
police.  PW-3 Suganya stated that she saw the blade lying in the room.   PW-
12 Tej Singh, the Investigating Officer introduced an  entirely  new  story.
He stated that the blade was discovered at the  instance  of  the  appellant
from the upper section of an almirah where  the  appellant  had  hidden  it.
Thus, the prosecution case that the appellant used a blade  is  shrouded  in
suspicion.

15.    Another  significant  lacuna  in  the   prosecution   case   is   the
contradictory statements of PW-1 Kajod and PW-2 Banwari as regards  presence
of PW-3 Suganya and PW-10 Nati in the house.  While PW-1 Kajod  stated  that
they were not present, PW-2 Banwari stated that they were  present  and,  in
fact, on seeing the incident, he called PW-3 Suganya to the house.   If  the
two sisters were present, there was no need for them  to  wait  for  a  call
from PW-2 Banwari.  The children’s cries would have made  them  run  to  the
house.  It  is,  therefore,  doubtful  whether  the  deaths  of  Rakesh  and
Rajkanta occurred in a manner in which  the  prosecution  wants  to  project
they had occurred.

16.   The appellant’s wife has gone on record to say that the appellant  was
a normal person; that he was not suffering from insanity; that he loved  her
children very much and that he was not angry with  her.   If  the  appellant
had killed her two children, she would never have given such  a  certificate
to him.  PW-3 Suganya stated that the appellant sent for Kachodi and  Jalebi
and when PW-1 Kajod brought them, he gave them to his  children  Rakesh  and
Rajkanta.  This happened just before the incident.  PW-1 Kajod  stated  that
because Rakesh was having fever, the appellant  sent  him  to  buy  tablets.
These are not signs of a  person  who  would  want  to  kill  his  children.
Nothing has been brought on record to suggest why the appellant  killed  his
children.  The prosecution has failed to prove motive.  It is true  that  if
there is eye-witness account, absence of motive is immaterial.   But  as  we
have already noted the evidence of lone eye-witness i.e. child witness  PW-2
Banwari does not inspire confidence.  The other evidence  on  record  is  so
infirm that it cannot supply the required corroboration to his evidence.

17    It is the prosecution case that the  clothes  of  the  appellant  were
blood stained and that blood group of the blood  found  on  the  clothes  of
deceased Rajkanta was the same as the blood group of the blood found on  the
clothes of the appellant.  Blood found on the clothes of  Rakesh  is  stated
to be of ‘O’ group.  Pertinently, the pancha to the seizure panchnama  under
which the clothes of the appellant and deceased children  were  seized,  has
turned hostile. PW-1 Kajod who is signatory to the panchnama of  seizure  of
clothes denied that the clothes of the appellant  were  seized  before  him.
The blood groups of the appellant, deceased  Rajkanta  and  deceased  Rakesh
were not ascertained.  To establish its case, the  prosecution  should  have
brought on record  blood  group  of  the  appellant,  blood  groups  of  the
deceased children and the medical record of the appellant from the  hospital
in which he was admitted.  Moreover, the prosecution  case  that  the  blood
found on the clothes of the appellant was of the same group as that  of  the
blood found on the clothes of Rajkanta, was not put to the appellant in  his
statement recorded under Section 313 of the Criminal Procedure  Code.   This
is a most vital circumstance which, if established, would  have  linked  the
appellant to the crime in question.  It was obligatory on the  part  of  the
prosecution to put it to  the  appellant  so  that  he  could  have  offered
explanation for the same.  The prosecution failed  to  do  so.   This  is  a
serious lacuna which cannot be condoned.

18.   It is also surprising that if  the  appellant  had  committed  such  a
heinous crime he would continue to sit in  the  room.   His  first  reaction
would have been to run away.  It is also difficult to appreciate as  to  how
those who had gathered at the scene of offence kept quiet after seeing  such
a gruesome crime.  The reaction of the people would have been  to  take  him
to the police station.  The prosecution is heavily relying on the fact  that
the appellant was alone in the room along with the children and no one  else
could have gone inside the  room  to  kill  the  children.   Normally,  this
argument would have impressed us if  the  prosecution  had  established  the
other circumstances to the hilt.  But in this case the prosecution  has  not
established even a single circumstance beyond doubt.  We are of the  opinion
that the prosecution has suppressed the genesis of the case.   The  incident
does not appear to have happened in the  manner  in  which  the  prosecution
wants the court to believe it had happened.  The police came  to  the  scene
after about one hour. As to what happened in  between  is  anybody’s  guess.
The story of alleged dying declaration of Rajkanta is not established.   The
discovery of blade from the almirah is not established and has rightly  been
rejected  by  the  trial  court.   The   panch   witness   turned   hostile.
Resultantly, the recoveries are not established.  PW-13 Vimala, the wife  of
the appellant, categorically stated that the appellant  loved  his  children
and he was a normal person.  His conduct prior  to  the  incident  does  not
suggest guilty mind.  He fed his children Jalebi and  Kachodi.   He  ordered
tablets for Rakesh because he had high fever.  The injuries suffered by  the
children are so grave that the children would  have  raised  cries.   Nobody
has stated that they heard any cries.  The story that the child witness  saw
the incident through  the  hole  is  difficult  to  digest.  No  independent
witness has been examined and the evidence of all the witnesses  is  replete
with inconsistencies. All these circumstances  make  the  prosecution  story
doubtful.  The appellant, therefore, must be given benefit of doubt. In  the
circumstances we set aside the impugned order.  The  appellant  is  directed
to be released forthwith unless required in any other case.

19.   The criminal appeal is disposed of in the afore-stated terms.

                                                       ……………………………………………..J.
                                                     (RANJANA PRAKASH DESAI)



                                                       ……………………………………………..J.
                                                            (MADAN B. LOKUR)
NEW DELHI
FEBARUARY 25, 2014.
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[1] AIR (39) 1952 SC 54
[2] (1998) 7 SCC 177
[3] (2004) 1 SCC 64
[4] (2009) 15 SCC 292

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