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Wednesday, September 24, 2014

Murder - Child Witness - Trial court convicted - D.B. - reversed it - Apex court held that In our considered view, the High Court had miserably failed to carry out the said exercise and without assigning reasons, much less convincing reasons, has chosen to interfere with the conviction imposed by the trial Court in a light hearted manner.- as far as the overall genesis of the occurrence was concerned, the evidence of all the above eye witnesses was cogent and there was not much of discrepancy or contradiction in their versions.The said version of Choti (PW-1) was fully corroborated by PWs-3 and 15 who are none other than the children of the deceased and Choti (PW-1). In fact, at the time of occurrence Kumari Sarita (PW-3) was 7½ years old and Vikram (PW-15) was 1½ year younger than Kumari Sarita (PW-3). Further, in the orientation of the witnesses, the trial Court has found that they were fully conscious of what they were to state before the Court and their answers to the questions did disclose that they were able to understand the whole purpose of giving their evidence in Court and as to on what matter they were supposed to give their evidence. Even while narrating the incident, both the above witnesses were able to fully support the version of Choti (PW-1) as regards the involvement of each one of the accused, the weapons used by them in that process and the ultimate death of the deceased after such severe beating with the weapons used.= CRIMINAL APPEAL NO.937 of 2008 State of Rajasthan …. Appellant VERSUS Chandgi Ram & Ors. …. Respondents = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41893

Murder - Child Witness - Trial court convicted - D.B. - reversed it - Apex court held that In our considered view, the High Court  had  miserably  failed to carry out the said exercise and  without  assigning  reasons,  much  less convincing reasons, has chosen to interfere with the conviction  imposed  by the trial Court in a light hearted manner.- as far as the overall genesis of the occurrence was concerned, the evidence  of all  the  above  eye  witnesses  was  cogent  and  there  was  not  much  of discrepancy or contradiction in their versions.The said version of Choti (PW-1) was fully corroborated by PWs-3 and 15  who are none other than the children of the deceased and Choti (PW-1). In  fact, at the time of occurrence Kumari Sarita (PW-3) was 7½ years old  and  Vikram (PW-15) was 1½ year younger than Kumari  Sarita  (PW-3).   Further,  in  the orientation of the witnesses, the trial  Court  has  found  that  they  were fully conscious of what they were  to  state  before  the  Court  and  their answers to the questions did disclose that they were able to understand  the whole purpose of giving their evidence in Court and as  to  on  what  matter
they were  supposed  to  give  their  evidence.  Even  while  narrating  the incident, both the above witnesses were able to fully  support  the  version of Choti (PW-1) as regards the involvement of each one of the  accused,  the weapons used by them in that process and the ultimate death of the  deceased after such severe beating with the weapons used.=

the Division Bench set aside  the  conviction  and
sentence imposed on the Respondents-accused by the trial Court  in  Sessions
Case No.3/2001 (108/2000) vide judgment dated 10.07.2002.  The  trial  Court
found the Respondents-accused guilty of the offence under Section  302  read
with 34, IPC for which they were sentenced to life imprisonment, apart  from
imposing  a  fine  of  Rs.500/-  each  and  in  default  to  undergo  simple
imprisonment for 15 days each.  They were also  convicted  for  the  offence
under Section 452 IPC and sentenced to 3 years rigorous  imprisonment  apart
from fine of Rs.200/- each and in default  to  undergo  simple  imprisonment
for 7 days each.=

on
12.03.2000, at around 9 p.m., the deceased Surender was conversing with  his
wife Choti (PW-1) and children Kumari Sarita (PW-3) and  Vikram  (PW-15)  in
their house.
At that moment, the four  accused  suddenly  barged  into  the
house of the deceased declaring that they wanted to kill him,  and  that  in
order to save himself from them, the deceased ran to the back  side  of  the
house and hid himself in the Khudi, from where the accused pulled  him  out,
dragged him to the house  of  Rajesh  (A-3  herein)  s/o  Pitram  and  while
dragging him to the house of A-3 they kept on assaulting him  with  the  aid
of iron rod, iron pipe and lathis.
After killing the deceased,  the  accused
brought back the body to the house of the deceased and left the  same  on  a
cot lying in the verandah.=

How the Evidence of child witness should be assessed
 State of Madhya Pradesh v. Ramesh and another  –  (2011)  4  SCC
786 wherein it laid down as to how the evidence of a  child  witness  should
be assessed.  Paragraphs 7, 11 and 14 which are relevant  for  our  purpose,
are as under:
“7. In Rameshwar v. State of Rajasthan this Court  examined  the  provisions
of Section 5 of the Oaths Act, 1873 and Section 118  of  the  Evidence  Act,
1872 and held that (AIR p. 55, para 7) every witness is competent to  depose
unless the court considers that  he  is  prevented  from  understanding  the
question put to him, or from giving rational answers  by  reason  of  tender
age, extreme old age, disease whether of body or mind or any other cause  of
the same  kind.  There  is  always  competency  in  fact  unless  the  court
considers otherwise.
The Court further held as under: (AIR p. 56, para 11)
“11. … it is desirable that Judges  and  Magistrates  should  always  record
their opinion that the child understands the duty of speaking the truth  and
state why they think that, otherwise the credibility of the witness  may  be
seriously affected, so much so, that in some cases it may  be  necessary  to
reject the evidence altogether. But whether the Magistrate or  Judge  really
was of that opinion can, I think, be gathered from  the  circumstances  when
there is no formal certificate.”

11.The evidence of a child must reveal that he was able to  discern  between
right and wrong and the  court  may  find  out  from  the  cross-examination
whether the defence lawyer could bring anything to indicate that  the  child
could not differentiate between right and wrong.  The  court  may  ascertain
his suitability as a witness by putting questions to him  [pic]and  even  if
no such questions had been put, it may be gathered from his evidence  as  to
whether he fully understood the implications  of  what  he  was  saying  and
whether he stood discredited in facing a stiff  cross-examination.  A  child
witness must be able to understand the sanctity of giving evidence  on  oath
and the import of the questions that were being put  to  him.  (Vide  Himmat
Sukhadeo Wahurwagh v. State of Maharashtra.)

14. In view of the above, the law on the issue  can  be  summarised  to  the
effect that the deposition of a child  witness  may  require  corroboration,
but in case his deposition inspires the confidence of the  court  and  there
is no embellishment or improvement therein, the  court  may  rely  upon  his
evidence. The evidence of a child witness must be evaluated  more  carefully
with greater circumspection because he is susceptible to tutoring.  Only  in
case there is evidence on record to show that a child has been tutored,  the
court can reject his statement partly or fully. However, an inference as  to
whether child has been tutored or not, can be drawn  from  the  contents  of
his deposition.”

   To the same effect is the decision reported in  Shivasharanappa  and  others
v. State of Karnataka (2013) 5 SCC 705.  Paragraph 17 can be referred to  as
under:

“17. Thus, it is well settled in law  that  the  court  can  rely  upon  the
testimony of a child witness and it can form the basis of conviction if  the
same is credible, truthful and is corroborated by other evidence brought  on
record. Needless to say, the  corroboration  is  not  a  must  to  record  a
conviction, but as a rule of prudence, the court thinks it desirable to  see
the corroboration  from  other  reliable  evidence  placed  on  record.  The
principles that apply for placing reliance on the solitary statement of  the
witness, namely, that the statement is true and correct and  is  of  quality
and cannot be discarded solely on  the  ground  of  lack  of  corroboration,
apply to a child witness who is competent and whose version is reliable.
                                                            (emphasis added)                                                         (Emphasis added)

the witnesses were not taking any effort to  seek  the
help of their neighbours in the village, where all the houses  were  closely
situated.  
Here again, we are not able to  accept  or  appreciate  the  said
contention for more than one reason. In the first  place,  Choti  (PW-1)  is
the wife of the deceased who at that point of time  was  more  concerned  in
rescuing her husband from the attack of  the  Respondents-accused  who  were
four in number and who were  fully  armed  with  iron  rod,  iron  pipe  and
lathis. Therefore, when her husband was being  beaten  mercilessly  by  four
different persons, as rightly deposed by her, she could only make a hue  and
cry while taking every possible effort to  rescue  him  from  the  merciless
onslaught of the assailants.  If at all anything can be said based  on  such
cries of Choti (PW-1), those who were living nearby could have come for  her
rescue in saving her husband.  If no one  came  and  were  not  prepared  to
extend a helping hand, then Choti (PW-1) cannot be blamed for  that  reason.
On seeing the  plight  of  Choti  (PW-1),  Bhateri  (PW-8)  her  niece,  who
happened to come at the place of occurrence appeared to have rushed back  to
inform her uncle, namely, Subhash (PW-12) who is the elder  brother  of  the
deceased and who tried to intervene and save the deceased from the  ruthless
attack of the Respondents-accused.

No Delay in Lodging FIR

When  the  said  contention  is
considered, as noted by us earlier, the occurrence took place at  around  9-
9.30 p.m. and even according  to  the  eye  witnesses,  the  attack  on  the
deceased went on for about an  hour.   Therefore,  by  the  time  the  whole
incident was over, namely, the deceased was dragged to the house  of  Rajesh
(A-3) beaten up there and brought back dead and thrown on  the  cot  in  the
verandah of the house of the deceased, it would have crossed 10  p.m.  Choti
(PW-1), being the wife of the deceased who is a  rustic  village  woman  and
shocked while witnessing the incident, it cannot be  said  that  she  should
have made every effort to lodge the complaint with  the  police  immediately
after the killing of her husband.  Being  a  village  lady  with  two  minor
children, who were also pathetically  witnessing  the  gruesome  killing  of
their father, she  would  have  been  only  crying  helplessly  seeking  the
support of her close relatives.

It must be remembered  that  the  occurrence  had  taken
place in a remote place and the police station  is  more  than  a  kilometre
away from the place of occurrence. In the night hours, as villagers,  having
found that the person was killed and was lying dead, they must have been  in
a bewilderment and, therefore, the complaint was lodged  only  on  the  next
day morning and that to after the police arrived at  10  a.m.   No  definite
reason can be attributed for not lodging the  complaint  expeditiously,  but
as stated by us earlier, it was due to the helplessness  of  the  poor  lady
who lost her husband in the  late  night

Meticulous examination & cogent reasons should be furnished while interfering
In  our  considered  view,  when  the  High
Court had interfered with the conviction imposed  by  the  trial  Court,  it
ought to have examined the evidence meticulously and  expressed  cogent  and
convincing reasons as to why the detailed consideration of the evidence  did
not inspire confidence in order to interfere  with  the  conclusion  of  the
trial Court.  In our considered view, the High Court  had  miserably  failed
to carry out the said exercise and  without  assigning  reasons,  much  less
convincing reasons, has chosen to interfere with the conviction  imposed  by
the trial Court in a light hearted manner.

           2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41893

                                                      Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.937 of 2008

State of Rajasthan                                 …. Appellant
                                   VERSUS

Chandgi Ram & Ors.                                     …. Respondents

                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

This appeal, at the instance of the State of Rajasthan is  directed  against
the judgment of the Division Bench of the High Court  of  Rajasthan,  Jaipur
Bench dated 08.02.2007 in D.B. Criminal Appeal No.977 of 2002.

By the impugned judgment, the Division Bench set aside  the  conviction  and
sentence imposed on the Respondents-accused by the trial Court  in  Sessions
Case No.3/2001 (108/2000) vide judgment dated 10.07.2002.  The  trial  Court
found the Respondents-accused guilty of the offence under Section  302  read
with 34, IPC for which they were sentenced to life imprisonment, apart  from
imposing  a  fine  of  Rs.500/-  each  and  in  default  to  undergo  simple
imprisonment for 15 days each.  They were also  convicted  for  the  offence
under Section 452 IPC and sentenced to 3 years rigorous  imprisonment  apart
from fine of Rs.200/- each and in default  to  undergo  simple  imprisonment
for 7 days each.

The case of the prosecution as projected before the trial Court was that  on
12.03.2000, at around 9 p.m., the deceased Surender was conversing with  his
wife Choti (PW-1) and children Kumari Sarita (PW-3) and  Vikram  (PW-15)  in
their house.  At that moment, the four  accused  suddenly  barged  into  the
house of the deceased declaring that they wanted to kill him,  and  that  in
order to save himself from them, the deceased ran to the back  side  of  the
house and hid himself in the Khudi, from where the accused pulled  him  out,
dragged him to the house  of  Rajesh  (A-3  herein)  s/o  Pitram  and  while
dragging him to the house of A-3 they kept on assaulting him  with  the  aid
of iron rod, iron pipe and lathis. After killing the deceased,  the  accused
brought back the body to the house of the deceased and left the  same  on  a
cot lying in the verandah.

According to Choti (PW-1),  her  husband  was  killed  by  the  Respondents-
accused due to prior animosity. It is not in dispute that Rajesh  (A-3)  and
the deceased are second cousins as their grand fathers are  blood  brothers.
The prosecution examined as many as 15 witnesses (PWs-1 to  15)  and  marked
29 documents (Exhibits P-1 to 29).  On the defence side, 2 witnesses  (DWs-1
and 2) were examined and 24 documents (Exhibits D-1 to 24) were marked.   Of
the 15 witnesses examined on behalf of the prosecution, PWs-1, 3, 8, 12  and
15  were  eye  witnesses.  The  High  Court,  having  interfered  with   the
conviction and sentence imposed by the  trial  Court,  the  State  has  come
forward with this appeal.

We heard Mr.Ram Naresh Yadav, learned Standing  Counsel  for  the  Appellant
and Mr.Abhishek Gupta, learned Counsel for the Respondents-accused.  Learned
Counsel  for  the  Appellant  took  us  through  the  evidence  of  the  eye
witnesses, the evidence of Dr. Nathu Singh (PW-7), the  post-mortem  doctor,
Exhibit P-1, the written report filed by Choti  (PW-1),  Exhibit  P-10,  the
post-mortem certificate and Exhibit P-29, the FSL report and submitted  that
the prosecution proved the offence alleged against  the  Respondents-accused
with substantive legal evidence and the interference by the High  Court  was
wholly unjustified.

As against the above submissions, Mr.Abhishek  Gupta,  learned  Counsel  for
the Respondents-accused contended that the version of the eye witnesses  was
wholly unnatural, contradictory  with  each  other  and  was  improbable  in
nature.  The  learned   Counsel   contended   that   there   were   material
discrepancies in the version of the eye witnesses  account  and,  therefore,
it was wholly unreliable in order to  convict  the  Respondents-accused.  He
also contended that the delay in lodging the FIR was inexplicable which  was
fatal to the case of the prosecution as the real genesis of  the  occurrence
was suppressed. The learned Counsel further contended that  considering  the
stand of the Respondents-accused in  their  313  statement  which  was  also
supported by the defence witnesses and the other evidence placed before  the
Court, the judgment of the High Court does not call for interference.

In support of his submission, learned Counsel  for  the  Respondents-accused
relied upon the decisions in Yeshwant and others The State of Maharashtra  –
(1972) 3 SCC 639, Kansa Behera v. State of Orissa – (1987)  3  SCC  480  and
Surinder Singh v. State of Punjab - 1989 Supp. (2) SCC 21, Din Dayal v.  Raj
Kumar alias Raju and Others – (1999) SCC (Crl.) 892, Raghunath v.  State  of
Haryana and another – (2003) 1 SCC 398, Mahtab Singh and  Another  v.  State
of Uttar Pradesh – (2009) 13 SCC 670, Lahu Kamlakar  Patil  and  Another  v.
State of Maharashtra – (2013) 6 SCC 417.

Having heard the learned Counsel for  the  Appellant  and  the  Respondents-
accused and having bestowed our serious consideration to  the  judgments  of
the High Court and the trial Court and the evidence  placed  before  us,  we
are of the view that the reasoning of the High  Court  in  interfering  with
the conviction imposed on the Respondents-accused by the trial  Court  lacks
in very many aspects when considered based on  the  abundant  evidence  laid
before the trial Court at the instance of the prosecution.

When we peruse the evidence of PWs-1, 3, 8, 12 and  15,  who  were  all  eye
witnesses, though learned Counsel for the Respondents-accused  attempted  to
point out certain variations in the eye witnesses account, we find  that  as
far as the overall genesis of the occurrence was concerned, the evidence  of
all  the  above  eye  witnesses  was  cogent  and  there  was  not  much  of
discrepancy or contradiction in their versions. The evidence of  Choti  (PW-
1), as regards the narration of the  occurrence,  was  clear  and  categoric
when she referred to the approximate  time  at  which  the  occurrence  took
place when her husband was  dragged  by  the  Respondents-accused  from  the
Khudi to the house of A-3 and in that process he was  severely  beaten  with
iron rod, iron pipe and lathis by each one of the accused.

The said version of Choti (PW-1) was fully corroborated by PWs-3 and 15  who
are none other than the children of the deceased and Choti (PW-1). In  fact,
at the time of occurrence Kumari Sarita (PW-3) was 7½ years old  and  Vikram
(PW-15) was 1½ year younger than Kumari  Sarita  (PW-3).   Further,  in  the
orientation of the witnesses, the trial  Court  has  found  that  they  were
fully conscious of what they were  to  state  before  the  Court  and  their
answers to the questions did disclose that they were able to understand  the
whole purpose of giving their evidence in Court and as  to  on  what  matter
they were  supposed  to  give  their  evidence.  Even  while  narrating  the
incident, both the above witnesses were able to fully  support  the  version
of Choti (PW-1) as regards the involvement of each one of the  accused,  the
weapons used by them in that process and the ultimate death of the  deceased
after such severe beating with the weapons used.

The learned Counsel for the Respondents-accused, while making  reference  to
the version of Kumari Sarita (PW-3) in the  cross-examination  that  on  the
date of occurrence at about 9-9.30 p.m. they went  to  sleep  and  submitted
that the evidence of the said eye witness cannot be relied upon. We  see  no
good reason to accept the said submission  inasmuch  as  in  our  considered
opinion, considering the extent of statement made by  the  said  witness  as
regards the incident in a graphic manner, the  said  stray  statement  about
their going to sleep by 9-9.30 p.m. was an insignificant  one  and  on  that
basis it will be wholly inappropriate to disbelieve the  version  of  Kumari
Sarita (PW-3), whose version in all other respects  was  natural  and  fully
supported the eye witness account of Choti (PW-1).

Similarly, we find absolutely no discrepancy in the version of  Vikram  (PW-
15), who was even younger than Kumari Sarita (PW-3) in age at  the  time  of
the occurrence but yet his version before  the  Court  as  recorded  by  the
trial Court disclosed that he was only speaking the truth and  he  was  able
to give the required details as regards the manner in which  the  occurrence
took place, the involvement  of  the  Respondents-accused  and  the  weapons
which they used in that process and the ultimate killing of  his  father  at
the instance of the Respondents-accused.

In this context, it is  relevant  to  rely  on  a  decision  of  this  Court
reported in State of Madhya Pradesh v. Ramesh and another  –  (2011)  4  SCC
786 wherein it laid down as to how the evidence of a  child  witness  should
be assessed.  Paragraphs 7, 11 and 14 which are relevant  for  our  purpose,
are as under:
“7. In Rameshwar v. State of Rajasthan this Court  examined  the  provisions
of Section 5 of the Oaths Act, 1873 and Section 118  of  the  Evidence  Act,
1872 and held that (AIR p. 55, para 7) every witness is competent to  depose
unless the court considers that  he  is  prevented  from  understanding  the
question put to him, or from giving rational answers  by  reason  of  tender
age, extreme old age, disease whether of body or mind or any other cause  of
the same  kind.  There  is  always  competency  in  fact  unless  the  court
considers otherwise. The Court further held as under: (AIR p. 56, para 11)
“11. … it is desirable that Judges  and  Magistrates  should  always  record
their opinion that the child understands the duty of speaking the truth  and
state why they think that, otherwise the credibility of the witness  may  be
seriously affected, so much so, that in some cases it may  be  necessary  to
reject the evidence altogether. But whether the Magistrate or  Judge  really
was of that opinion can, I think, be gathered from  the  circumstances  when
there is no formal certificate.”

11.The evidence of a child must reveal that he was able to  discern  between
right and wrong and the  court  may  find  out  from  the  cross-examination
whether the defence lawyer could bring anything to indicate that  the  child
could not differentiate between right and wrong.  The  court  may  ascertain
his suitability as a witness by putting questions to him  [pic]and  even  if
no such questions had been put, it may be gathered from his evidence  as  to
whether he fully understood the implications  of  what  he  was  saying  and
whether he stood discredited in facing a stiff  cross-examination.  A  child
witness must be able to understand the sanctity of giving evidence  on  oath
and the import of the questions that were being put  to  him.  (Vide  Himmat
Sukhadeo Wahurwagh v. State of Maharashtra.)

14. In view of the above, the law on the issue  can  be  summarised  to  the
effect that the deposition of a child  witness  may  require  corroboration,
but in case his deposition inspires the confidence of the  court  and  there
is no embellishment or improvement therein, the  court  may  rely  upon  his
evidence. The evidence of a child witness must be evaluated  more  carefully
with greater circumspection because he is susceptible to tutoring.  Only  in
case there is evidence on record to show that a child has been tutored,  the
court can reject his statement partly or fully. However, an inference as  to
whether child has been tutored or not, can be drawn  from  the  contents  of
his deposition.”

                                                            (Emphasis added)

To the same effect is the decision reported in  Shivasharanappa  and  others
v. State of Karnataka (2013) 5 SCC 705.  Paragraph 17 can be referred to  as
under:

“17. Thus, it is well settled in law  that  the  court  can  rely  upon  the
testimony of a child witness and it can form the basis of conviction if  the
same is credible, truthful and is corroborated by other evidence brought  on
record. Needless to say, the  corroboration  is  not  a  must  to  record  a
conviction, but as a rule of prudence, the court thinks it desirable to  see
the corroboration  from  other  reliable  evidence  placed  on  record.  The
principles that apply for placing reliance on the solitary statement of  the
witness, namely, that the statement is true and correct and  is  of  quality
and cannot be discarded solely on  the  ground  of  lack  of  corroboration,
apply to a child witness who is competent and whose version is reliable.”
                                                            (emphasis added)


The learned Counsel for the Respondents-accused  was  repeatedly  contending
that the version of the above witnesses was  wholly  unnatural  by  pointing
out that when the head of the family was being attacked mercilessly  by  the
four accused persons, the witnesses were not taking any effort to  seek  the
help of their neighbours in the village, where all the houses  were  closely
situated.  Here again, we are not able to  accept  or  appreciate  the  said
contention for more than one reason. In the first  place,  Choti  (PW-1)  is
the wife of the deceased who at that point of time  was  more  concerned  in
rescuing her husband from the attack of  the  Respondents-accused  who  were
four in number and who were  fully  armed  with  iron  rod,  iron  pipe  and
lathis. Therefore, when her husband was being  beaten  mercilessly  by  four
different persons, as rightly deposed by her, she could only make a hue  and
cry while taking every possible effort to  rescue  him  from  the  merciless
onslaught of the assailants.  If at all anything can be said based  on  such
cries of Choti (PW-1), those who were living nearby could have come for  her
rescue in saving her husband.  If no one  came  and  were  not  prepared  to
extend a helping hand, then Choti (PW-1) cannot be blamed for  that  reason.
On seeing the  plight  of  Choti  (PW-1),  Bhateri  (PW-8)  her  niece,  who
happened to come at the place of occurrence appeared to have rushed back  to
inform her uncle, namely, Subhash (PW-12) who is the elder  brother  of  the
deceased and who tried to intervene and save the deceased from the  ruthless
attack of the Respondents-accused.

According to Choti (PW-1) and Subhash (PW-12), the Respondents-accused  were
so keen in eliminating the deceased that they were  stated  to  have  warded
off any attempt made by Choti (PW-1)  and  Subhash  (PW-12)  in  saving  the
deceased from the dreadful attack by them. Therefore, we  do  not  find  any
conduct which is not normal or unnatural from what was stated by Choti  (PW-
1) or Subhash (PW-12).  As far as Kumari Sarita (PW-3)  and  Vikram  (PW-15)
are concerned, they are children of the deceased  and  when  they  witnessed
the gruesome attack of the Respondents-accused on their father,  they  could
have made noise and being children of  a  very  tender  age,  it  cannot  be
stated as to in what manner they were expected to behave at  that  point  of
time. But on that score, it cannot be held that the whole of their  evidence
should be eschewed from consideration.  While  witnessing  such  an  inhuman
behaviour of the assailants, the young children might have become  paralysed
out of shock and fear. Therefore, the  contention  made  on  behalf  of  the
Respondents-accused that the behaviour of the eye witnesses  was  unnatural,
does not stand to any reason and, therefore, the  said  contention  deserves
to be rejected.

It was contended that all the witnesses were family members of the  deceased
and being interested witnesses, their  version  cannot  be  relied  upon  in
toto.  When we consider the same, we  fail  to  understand  as  to  why  the
evidence of the witnesses should be discarded solely on the ground that  the
said witnesses are related to the deceased.  It is  well  settled  that  the
credibility of a witness and his/her  version  should  be  tested  based  on
his/her testimony vis-à-vis the  occurrence  with  reference  to  which  the
testimonies are deposed before the  Court.   As  the  evidence  is  tendered
invariably before the Court, the Court will be in  the  position  to  assess
the truthfulness or otherwise  of  the  witness  while  deposing  about  the
evidence and the persons on whom any such evidence is  tendered.   As  every
witness is bound to face the cross-examination  by  the  defence  side,  the
falsity, if any, deposed by the  witness  can  be  easily  exposed  in  that
process.  The trial Court will be able to assess the  quality  of  witnesses
irrespective of the fact whether the witness is  related  or  not.   Pithily
stated, if the version of the witness is  credible,  reliable,  trustworthy,
admissible and the veracity of the statement does  not  give  scope  to  any
doubt, there is no reason to reject  the  testimony  of  the  said  witness,
simply because the witness  is  related  to  the  deceased  or  any  of  the
parties.  In this context, reference can be made to  the  decision  of  this
Court reported in Mano Dutt and another v. State of Uttar Pradesh  –  (2012)
4 SCC 79.  Paragraph 24 is relevant which reads as under:

 “24. Another contention raised on behalf of the appellant-accused  is  that
only family members of the deceased were  examined  as  witnesses  and  they
being  interested  witnesses  cannot  be  relied  upon.   Furthermore,   the
prosecution did not examine any independent witnesses  and,  therefore,  the
prosecution has failed to establish its case beyond reasonable  doubt.  This
argument is again without much substance. Firstly, there is no  bar  in  law
in examining family members, or any other person, as witnesses.  More  often
than not, in such cases involving family members of  both  sides,  it  is  a
member of the family or a friend who comes  to  rescue  the  injured.  Those
alone are the people who take the risk of  sustaining  injuries  by  jumping
into such a quarrel and trying to  defuse  the  crisis.  Besides,  when  the
statement of witnesses, who are relatives,  or  are  parties  known  to  the
affected  party,  is  credible,   reliable,   trustworthy,   admissible   in
accordance with the law and corroborated by other witnesses  or  documentary
evidence of the prosecution, there would hardly be any reason for the  Court
to reject such evidence merely on the ground that the witness was  a  family
member or an interested witness or a person known to the affected party.”
 (emphasis added)

Reliance can also be placed upon  Dinesh  Kumar  v.  State  of  Rajasthan  –
(2008) 8 SCC 270, wherein in paragraph 12, the law has been succinctly  laid
down as under:
“12. In law, testimony of an injured witness is given importance.  When  the
eyewitnesses are stated to be interested  and  inimically  disposed  towards
the accused, it has to be noted that it would  not  be  proper  to  conclude
that they would shield the real culprit and rope in  innocent  persons.  The
truth or otherwise of the evidence has  to  be  weighed  pragmatically.  The
court would be required to analyse the evidence  of  related  witnesses  and
those witnesses who are inimically disposed  towards  the  accused.  But  if
after careful analysis and scrutiny of their evidence, the version given  by
the witnesses appears to be clear, cogent and credible, there is  no  reason
to discard the same. Conviction can be made on the basis of such evidence.”

                                                       (Underlining is ours)

It was then contended on behalf of the Respondents-accused  that  there  was
inexplicable delay in lodging of the  FIR.  It  was  pointed  out  that  the
occurrence took place at 9 p.m. while the FIR was lodged only at 10.15  a.m.
on the next day. During the whole night the relatives of the  deceased  were
informed about the killing of the deceased by Choti (PW-1) and some of  whom
also arrived at the  place  of  occurrence.  When  the  said  contention  is
considered, as noted by us earlier, the occurrence took place at  around  9-
9.30 p.m. and even according  to  the  eye  witnesses,  the  attack  on  the
deceased went on for about an  hour.   Therefore,  by  the  time  the  whole
incident was over, namely, the deceased was dragged to the house  of  Rajesh
(A-3) beaten up there and brought back dead and thrown on  the  cot  in  the
verandah of the house of the deceased, it would have crossed 10  p.m.  Choti
(PW-1), being the wife of the deceased who is a  rustic  village  woman  and
shocked while witnessing the incident, it cannot be  said  that  she  should
have made every effort to lodge the complaint with  the  police  immediately
after the killing of her husband.  Being  a  village  lady  with  two  minor
children, who were also pathetically  witnessing  the  gruesome  killing  of
their father, she  would  have  been  only  crying  helplessly  seeking  the
support of her close relatives.

If at all anyone could have  done  anything,  Subhash  (PW-12)  who  is  the
brother of the deceased, could have been expected  to  take  some  steps  to
inform the police.  It must be remembered  that  the  occurrence  had  taken
place in a remote place and the police station  is  more  than  a  kilometre
away from the place of occurrence. In the night hours, as villagers,  having
found that the person was killed and was lying dead, they must have been  in
a bewilderment and, therefore, the complaint was lodged  only  on  the  next
day morning and that to after the police arrived at  10  a.m.   No  definite
reason can be attributed for not lodging the  complaint  expeditiously,  but
as stated by us earlier, it was due to the helplessness  of  the  poor  lady
who lost her husband in the  late  night.   In  this  context,  it  will  be
worthwhile to keep in mind the version of Jagram  (PW-2)  brother  of  Choti
(PW-1) who in his testimony has confirmed that when he went to the house  of
Lalchand to  report  the  incident  to  Bagor  Police  Station,  he  briefly
informed the SHO about the incident. It was also informed by him that  after
making the telephone call, the SHO reached the spot within half an hour  and
got the first information written under Exhibit P-1, which was  handed  over
to the SHO who thereafter, prepared Exhibit P-2 map when Jagram  (PW-2)  who
was also present, affixed the signatures on Exhibit P-2. But on that  score,
it cannot be held that there would  have  been  a  total  variation  in  the
genesis of the case, considering the eye witnesses account of the  witnesses
whose version we have found to be fully credible and corroborative in  every
respect.  Therefore, merely because there was some delay in the  lodging  of
the FIR, which cannot be wholly attributed to the aggrieved party Choti (PW-
1), on that score, there is no scope to hold  that  the  Respondents-accused
are to be given a clean chit when there was strong evidence  both  oral  and
documentary and material objects placed before the  trial  Court  confirming
their involvement in the occurrence.   Therefore,  the  said  submission  of
the alleged delay in lodging of the FIR also does not merit acceptance.

As far as the reliance placed upon the defence  version  is  concerned,  the
same was rightly rejected by the  trial  Court  for  well  founded  reasons.
Apart from the version of the eye witnesses,  the  admissible  part  of  the
evidence of Ranjit Singh (PW-13), the Investigating Officer, insofar  as  it
related to the recoveries made with the aid of Panch witnesses,  established
the weapons used by the Respondents-accused in the process  of  the  killing
of the deceased. Exhibit P-29 was marked through PW-13,  which  is  the  FSL
report.  The contents of the FSL Report  (Exhibit  P-29),  have  been  dealt
with by the trial Court which is stated as under:

“The report of Exhibit P-29 has been issued by the FSL Office on  02.08.2001
which confirms the traces of human blood on the  blood-soaked  soil,  blood-
stained cotton, the shirt of deceased Surender, his pant  and  baniyan,  the
iron pipe recovered from accused Suresh, iron  rod  recovered  from  accused
Rajesh, laathi recovered from Chandagi and Anvi.

Traces of “A” group blood have been found on the piece of  cotton  on  which
human blood sample was recovered  from  the  cot  where  the  dead  body  of
Surender was lying and also on the shirt, pant and baniyan of Surender.   No
suspicion can be raised about the blood present on the clothes worn  by  the
deceased and the blood recovered below the cot, that it  was  the  blood  of
deceased Surender.  The group of blood present on other articles  could  not
be ascertained for the reason that quantity of  blood  was  quite  low,  but
keeping in view the evidences available on record and finding the traces  of
human blood, it can be said beyond doubt that  it  was  also  the  blood  of
deceased Surender.  The report of Exhibit P-29  in  itself  is  a  clinching
evidence to hold accused guilty to the offence.  There remains no  doubt  in
holding conviction of the accused for the offence of murder of  Surender  by
the accused.”

                                                           (Underlining is
                                    ours)


The above discussion made by the trial Court amply demonstrates that in  the
process of investigation, the Investigating Officer was able to recover  the
blood stained clothes, soil and other materials and the FSL report  (Exhibit
P-29) confirmed traces of human blood.  Simply  because  the  blood  stained
apparels of Choti (PW-1) was not exhibited, it cannot be held that  on  that
score the material part of the evidence of eye witnesses should be  eschewed
from consideration. Apart from the involvement of the accused in  the  crime
as spoken to by the eye witnesses, the FSL report (Exhibit  P-29)  confirmed
the brutal killing of the deceased which was the result  of  the  attack  on
his body with various weapons. The post-mortem Doctor  Nathu  Singh  (PW-7),
who confirmed the injuries found on the body of  the  deceased  as  per  the
post-mortem report (Exhibit P-10), disclosed that there were as many  as  14
injuries of which the head injury  was  fatal.   The  said  version  of  the
doctor also confirmed the injuries sustained by the deceased  on  his  head,
as well as,  other  vital  parts  of  his  body.   Therefore,  a  cumulative
consideration of the above evidence amply established  the  crime  in  which
the Respondents-accused were  involved,  resulted  in  the  killing  of  the
deceased.

Reliance was placed by the learned counsel for  the  Respondents-accused  on
the  decision  reported  in  Surinder  Singh  (supra).   In  this  case  the
prosecution  witness  informed  neither  his  relatives   nor   the   police
authorities or officials after he witnessed the act of murder  committed  by
the Appellant, in a timely manner. In fact, PW-2 went back to his house  and
dozed off and it was only after sometime did  he  go  and  inform  PW-3  who
advised him to go to the police. We have to state, at  this  juncture,  that
the facts and circumstances  of  this  case  are  distinguishable  from  the
present appeal and hence, reliance on this judgment will  be  futile  as  in
the case on hand, although the police were  not  informed  immediately,  the
relatives of the deceased were informed instantly and it  was  only  natural
that a village woman having two minor children could not go and  inform  the
police about the incident at late hours in the night,  especially  when  the
police station was more than one and half kilometres  away.  Therefore,  the
said decision is of no assistance to the Respondents-accused.

Reliance was also placed on Lahu Kamlakar Patil (supra), wherein the  ground
urged before this Court was that the sole witness in the case ran away  from
the spot of occurrence and did not inform the  police  about  the  incident,
but on the contrary hid himself until early morning of  the  next  day,  and
also that he did not come to the spot where the police arrived out  of  fear
for three hours. He had, in fact, contrary to normal human  behaviour,  gone
to his house in Pune and did not inform his  family  members.  He  chose  to
inform the police about the entire incident after three days, when his  wife
informed him that the police  had  come  to  his  house,  looking  for  him.
Reliance was placed on the above judgment to state that the conduct  of  the
witness in the present appeal seems to be  unnatural  i.e.,  by  approaching
the police and filing the FIR in a belated manner. We  will  have  to  state
that in the above case, the sole witness approached the police out  of  fear
and, in fact, did not even lodge the  FIR  with  the  police  in  the  first
instance. Therefore, this fact is clearly distinguishable from  the  present
appeal, wherein, Choti (PW-1) had genuine reason to lodge  the  FIR  on  the
morning of next day. Hence, reliance on the above case is also  not  helpful
to the Respondent.

The learned Counsel for the  Respondents-accused,  placed  reliance  on  Din
Dayal (supra) wherein this Court held that the conduct of the witnesses  was
unnatural and unreasonable in not informing the police  about  the  incident
as they had quietly gone back to their home after the said occurrence.  They
had also not disclosed the name of the accused to the police  constable  who
was on duty, even though they disclosed other facts regarding the  incidents
and  hence  on  this  ground,  the  Court  had  reasons  for  doubting   the
truthfulness of the evidence of  the  witnesses.   In  the  present  appeal,
there were cogent reasons as  has  been  clearly  explained  above  for  the
lodging of the FIR on the next morning and  the  conduct  of  the  witnesses
were not in any way similar to the above stated  case  and,  therefore,  the
same cannot be relied upon. Hence, on this ground, this  case  is  also  not
helpful to the Respondents-accused.

As far as reliance on Mahtab Singh (supra) was concerned, it  will  have  to
be noted that in the said case, this Court found that inspite  of  the  fact
that the police station was a furlong away, the complainant did  not  choose
to go to police station straightway, but instead he went to a person  called
Charan Singh for preparing a report and  only  thereafter,  went  to  police
station which resulted in a delay of 45 minutes. It was  in  these  peculiar
facts of the case, it was held  that  delay  in  lodging  the  FIR,  created
doubt. In the case on hand, we have noted that the occurrence took place  in
the late night in a remote village where the sufferers of the incident  were
the widow and her two minor  children,  apart  from  the  fact  that  police
station was one and a half kilometres away. Therefore, we are  not  inclined
to rely on the said decision to the case on hand.

Reliance to paragraph 21 of Yeshwant (supra) was placed by the  counsel  for
the Respondents-accused to submit that there was no conclusive  evidence  to
prove that the blood stains on the  body  were  that  of  the  deceased  and
whether they were of human origin and,  therefore,  the  connection  of  the
evidence with the occurrence under consideration was not shown  by  anything
on record. We will have to state here that the FSL  report  (Exhibit-  P-29)
has specifically mentioned that the blood stains found on the articles  were
of human origin, while  also  determining  the  blood  group  to  be  as  ‘A
positive’. Also according to the  statement  of  the  Investigating  Officer
Ranjit Singh (PW-13), during the course of  investigation  all  the  weapons
described by  the  eyewitnesses,  which  had  blood  stains  on  them,  were
recovered from the possession of the Respondents-accused.  It  can  also  be
inferred from the post-mortem report (Exhibit P-10) of Dr. Nathu Singh  (PW-
7), the medical officer that the various injuries  caused  on  the  deceased
were from the weapons recovered at the instance of the accused.   Therefore,
these findings are strong factors in establishing  the  culpability  of  the
Respondents-accused in committing the murder. For  the  very  same  reasons,
reliance placed on paragraphs 7 and 8 of the decision Raghunath (supra)  and
on paragraph 12 in Kansa Behera (supra) is also rejected.

When we examine the reasoning of the Division Bench in concluding  that  the
offence was not made out, it was mainly on the ground that there  was  delay
in the lodging of the FIR and the conduct of the witnesses as spoken  to  by
them did not inspire confidence. In  our  considered  view,  when  the  High
Court had interfered with the conviction imposed  by  the  trial  Court,  it
ought to have examined the evidence meticulously and  expressed  cogent  and
convincing reasons as to why the detailed consideration of the evidence  did
not inspire confidence in order to interfere  with  the  conclusion  of  the
trial Court.  In our considered view, the High Court  had  miserably  failed
to carry out the said exercise and  without  assigning  reasons,  much  less
convincing reasons, has chosen to interfere with the conviction  imposed  by
the trial Court in a light hearted manner.

Having regard to our above conclusion, we find that none  of  the  decisions
relied upon by learned counsel for the Respondents-accused  can  be  applied
to the case, inasmuch as we have found that the  eye  witnesses  account  of
the concerned witnesses were all convincing and were corroborative in  every
minute aspect of the occurrence. We have also found that their  version  was
natural and there was nothing to suspect  their  version  in  narrating  the
occurrence.  We have  also  found  that  the  defence  version  was  rightly
rejected by the trial Court as the same was wholly unreliable.   Apart  from
eye witnesses account, we have also found the  recoveries  of  the  weapons,
the medical evidence and the FSL reports fully supporting the  case  of  the
prosecution.

Having regard to our above conclusions, the  judgment  of  the  trial  Court
ought not to have been interfered by the High Court.  We,  therefore,  allow
this appeal and set aside the judgment of the High  Court  and  restore  the
judgment of the trial Court along with the conviction and sentence  imposed.
The Respondents-accused shall, therefore, surrender  forthwith  and  undergo
the unexpired portion of the sentence imposed on them.


                                                    ...……….…….………………………………J.
                           [Fakkir Mohamed Ibrahim Kalifulla]




                                                   ...……….……….…………………………..J.
                [Shiva Kirti Singh]

New Delhi;
September 09, 2014.

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