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.
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.
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
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.
