REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1340 of 2007
Ramesh Harijan
…..Appellant
Versus
State of U.P. ....
Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
l. This criminal appeal has been preferred against the
judgment and order dated 23.3.2007 passed by the High Court of
Allahabad in Government Appeal No. 1246 of 1999 by which the High Court
has reversed the judgment of Additional District and Sessions Judge,
Basti in Sessions Trial No. 312 of 1996 dated 2.2.1999 acquitting the
appellant. Thus, the High Court has convicted the appellant for the
offence punishable under Sections 302 and 376 of Indian Penal Code,
1860 (hereinafter called as `IPC’) and awarded him the life
imprisonment for both the offences. However, both the sentences have
been directed to run concurrently.
2. Facts and circumstances giving rise to this appeal are that:
A. One Smt. Batasi Devi (PW.2) lodged an FIR on 2.2.1996 in
Haraiya Police Station alleging that her daughter Renu, aged 5-6
years, was found dead on her cot in Muradipur, the village of her
maternal grandmother on 30.1.1996 at about 9.00 p.m. Initially, she had
been told that her daughter died of paralysis and she was buried at
the bank of Manorama river. Later on she got information from Shitla
Prasad Verma (PW.8), Jata Shankar Singh (PW.7) and other persons of the
same village that her daughter had been raped and killed by Ramesh,
appellant. She also made a request that the dead body of the child be
exhumed and sent for post-mortem.
B. On the order of the concerned Sub-Divisional Magistrate, the
dead body of Renu was dug out from the grave and sent for post-mortem
on 3.2.1996. The autopsy was conducted by Dr. Ajay Kumar Verma and
Dr. S.S. Dwedi of District Hospital. In their opinion, death was due
to shock and haemorrhage as a result of ante-mortem vaginal injuries.
C. On the basis of the post-mortem report, Case Crime No. 22 of
1996 was registered against the appellant under Sections 302 and 376
IPC. After having the investigation, the police filed the chargesheet
against the appellant. During the trial prosecution examined 14
witnesses to prove its case including Kunwar Dhruv Narain Singh (PW.1),
the scribe of the FIR, Batasi Devi (PW.2), mother of the deceased Renu,
Jata Shankar Singh (PW.7), Shitla Prasad Verma (PW.8) and after
conclusion of the trial and considering the evidence on record, the
trial court vide its judgment and order dated 2.2.1999 acquitted the
appellant of both the aforesaid charges.
D. Being aggrieved, the State preferred Criminal Appeal No. 1246
of 1999 which has been allowed by the High Court vide judgment and
order dated 23.3.2007 and the appellant has been convicted and awarded
the sentence of life imprisonment on both counts.
Hence, this appeal.
3. Shri Rajender Parsad Saxena, learned counsel appearing for the
appellant, has submitted that High Court has committed an error by
reversing the well-reasoned judgment of acquittal by the trial court.
There is no iota of evidence against the appellant on the basis of
which the conviction can be sustained. The evidence relied upon by the
High Court particularly that of Kunwar Dhruv Narain Singh (PW.1), Jata
Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8) cannot stand
judicial scrutiny as these witnesses had been motivated; improvement in
the depositions of Jata Shankar Singh (PW.7) and Shitla Prasad Verma
(PW.8) had been to the extent that it is liable to be discarded as a
whole. The other witnesses have turned hostile, therefore, there is
nothing on record to show that the appellant was connected with the
crime by any means. There is no evidence on record on the basis of
which it can be established that Renu (deceased) used to sleep in the
house of the appellant or the appellant had an opportunity to commit
the offence. The findings recorded by the High Court are perverse not
being based on evidence on record. Thus, the appeal deserves to be
allowed.
4. On the contrary, Shri Manoj Kumar Dwivedi, learned counsel
appearing for the State has vehemently opposed the appeal contending
that the judgment of the trial court has rightly been reversed by the
High Court being contrary to the evidence on record. The High Court
has recorded the findings of fact on correct appreciation of evidence.
Thus, no interference is warranted. The appeal is liable to be
dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the records.
6. Admittedly, Renu, aged 5-6 years of age, died of vaginal
injuries. The post-mortem report disclosed the following ante-mortem
injuries:
?(1) Contusion 4 cm x 2 cm over the right side face below the
right ear lobules on upper part of the neck.
(2) Contusion 5 cm x 3 cm over the left side face in front
and above tragus of the left ear.
(3) Abraded contusion 4 cm X 3 cm over the back of the right
shoulder joint and scapular region.
(4) Contusion 3 cm x 2 cm over the upper part of the left
scapula and back portion of the shoulder tip.
(5) Abraded contusion 4 cm x 1 cm on each side of office and
labia majora.
(6) Abraded with tearing of labia majora of both side 2 cm x 1
cm.
(7) Hymen absent, lower part of vagina badly lacerated and
pubic lower part upper abdomen, and vaginal tear up to upper
part of Guel orifice.
The internal examination of the supra pubic region on
opening the abdomen revealed that blood and gases were present
and the lower part of the uterus had a bloodstained tear 1 cm x
1 cm. The cause of death was shock and haemorrhage. The death
could have taken place on 30.1.1996 between 9.00 or 9.30 pm. If
a hard object like a human penis was inserted in the vagina it
could have caused the injuries Nos. 6 and 7.”
7. The prosecution has examined Kunwar Dhruv Narain Singh (PW.1),
the scribe of the FIR lodged by Batasi Devi (PW.2), mother of the
deceased Renu. He deposed that Renu was living with her maternal
grandmother Smt. Phulpatta Devi who was totally blind and a very poor
woman. Her thatched house had fallen down so she used to sleep in the
house of Ramesh, appellant which was adjacent to her house. Renu was
found dead on 30.1.1996 in the night on her cot in the house of Ramesh,
appellant. Ramesh, appellant made the extra-judicial confession
before him in presence of Jata Shankar Singh (PW.7) and Shitla Prasad
Verma (PW.8). The father of Ramesh used to work in his house, however,
at the relevant time, he was working in Sidharth Nagar. Batasi Devi
(PW.2) had come to him and asked him to write the FIR so that she can
lodge the same with the police station. However, he denied the
suggestion that he had a grudge against Ramesh, appellant as it was
because of the appellant and his father that other persons of the
village were not working at his house.
8. Batasi Devi (PW.2), mother of Renu, deceased, deposed that her
mother was very poor and her house was having a thatched roof which had
fallen down so she used to sleep in the house of Ramesh, appellant
which is in very close proximity of her house. In the fateful night,
Renu slept with her maternal grandmother in the house of Ramesh,
appellant. She had been informed that her daughter died of paralysis.
Renu had been buried at the bank of Manorama river. However, on the
next day, the rumour broke out that Ramesh, appellant, had committed
rape and she died of the same. Then, she lodged the FIR.
9. Jata Shankar Singh (PW.7) deposed that he was originally of
another village but was living in the house of Kunwar Dhruv Narain
Singh (PW.1), in the same village for 15-16 years. He told that on
30.1.1996 when he was returning alongwith Shitla Prasad Verma (PW.8),
to his house after marketing at about 9.00 p.m., he heard some
whispering near the house of appellant Ramesh. He was having a torch
so he focussed it in the same direction and found that Ramesh,
appellant was committing rape on a little girl of 6 years beneath a
tree situated outside his house. His associate Shitla Prasad Verma
(PW.8) raised a cry as a result of which some persons from the village
gathered but appellant Ramesh ran out. The girl had died of rape.
10. Shitla Prasad Verma (PW.8). has supported the prosecution case
narrating the similar facts as stated by Jata Shankar Singh (PW.7).
11. Doctor Ajay Kumar Verma (PW.11) who has conducted the autopsy
on the body of Renu, deceased, supported the prosecution case to the
extent that deceased was having the ante-mortem injuries as mentioned
hereinabove on her body.
12. Sharafat Hussain, S.I., (PW.13), the Investigating Officer,
deposed that he had recovered a part of Khatari (thin mattress) and
white sheet with which Renu was covered. He tried to search the
appellant/accused, however, the appellant could be arrested at 3.35
a.m. in the intervening night of 3/4.2.1996 from the junction of three
roads at Mahulghat when he was waiting for some transport to leave the
area.
13. The prosecution also examined Sumaiya Devi (PW.3), Urmila Devi
(PW.4), Hira Devi (PW.6), Sona Devi (PW.9). However, they did not
support the prosecution case and had been declared hostile. According
to the aforesaid witnesses, they reached the place of occurrence after
having the information of Renu’s death and they found her dead body
lying at the house of her maternal grandmother Smt. Phulpatta Devi.
14. The learned trial court after appreciating the evidence on
record acquitted the appellant on the following grounds:
I) The prosecution could not produce any evidence to prove that in
the night of the incidence, Renu, deceased, had been sleeping in
the house of the appellant Ramesh or her dead body had been
lying on the cot in his house.
II) Smt. Phulpatta, maternal grandmother of Renu, deceased, was
neither examined, nor any satisfactory explanation had been
given for not examining her.
III) The deposition of Kunwar Dhruv Narain Singh (PW.1) was not
worthy of reliance as he has deposed that the appellant had made
extra-judicial confession before him for committing the
aforesaid crime in the presence of Jata Shankar Singh (PW.7) and
Shitla Prasad Verma (PW.8). Such statement had not been made
by either of the said witnesses.
IV) Kunwar Dhruv Narain Singh (PW.1) was a Jamindar and it was
because of the appellant’s father that other poor persons were
not rendering service to him and Kunwar Dhruv Narain Singh
(PW.1) had been inimical to the appellant.
V) The deposition of Sumaiya Devi (PW.3), Urmila Devi (PW.4), Hira
Devi (PW.6) and Sona Devi (PW.9) was not in support of the
prosecution case and all the aforesaid four witnesses had been
cross-examined but they could not be held to be hostile
witnesses.
VI) Sharafat Hussain, S.I., (PW.13), the Investigating Officer, had
recovered a part of the bed sheet and it had been sent for CFSL
report and to the said recovery Ram Prasad alias Parsadi (PW.5)
and Bhikari (PW.10) did not support the recovery and,
therefore, recovery of the aforesaid incriminating material is
to be disbelieved.
VII) The evidence of Jata Shankar Singh (PW.7) and Shitla Prasad
Verma (PW.8) could not be relied upon as they had made knowingly
improvements in the case of having last seen Renu, deceased,
with the appellant rather distorted the whole case of the
prosecution totally as both of them had deposed that they had
seen the appellant committing rape on Renu, deceased.
15. In the appeal, the High Court has reversed the findings
recorded by the trial court on the following grounds:
I) There was sufficient evidence on record to show that Smt.
Phulpatta Devi, maternal grandmother of Renu, deceased, was
totally blind and a very poor woman and the roof of her
thatched house had fallen and she used to sleep in the house of
the appellant Ramesh in her neighbourhood with Renu, deceased.
II) It was no one’s case that Kunwar Dhruv Narain Singh (PW.1) was
inimical to the appellant for any reason whatsoever as none of
the witnesses had deposed that after the appellant’s father
joined the service, he had supported the other villagers
financially and, therefore, they stopped working at the house of
Kunwar Dhruv Narain Singh (PW.1).
III) The witnesses Sumaiya Devi (PW.3), Urmila Devi (PW.4), Hira Devi
(PW.6) and Sona Devi (PW.9), once had been cross-examined by
the prosecution as they had not supported the case of the
prosecution, the trial court was wrong that they were not
hostile witnesses. Similarly remained the position of the
witnesses of the recovery of sheet cover and bichona i.e. of Ram
Prasad alias Parsadi (PW.5) and Bhikari (PW.10).
IV) The evidence of Kunwar Dhruv Narain Singh (PW.1), Jata Shankar
Singh (PW.7) and Shitla Prasad Verma (PW.8) could be relied upon
at least to the extent that deceased was last seen in the
company of the appellant.
V) The trial court had given undue importance to the minor
contradictions in the depositions of the witnesses. In fact,
there was evidence that after committing the crime outside, the
appellant brought the corpus of the child and placed it on the
cot.
16. The law of interfering with the judgment of acquittal is well-
settled. It is to the effect that only in exceptional cases where there
are compelling circumstances and the judgment in appeal is found to be
perverse, the appellate court can interfere with the order of the
acquittal. The appellate court should bear in mind the presumption of
innocence of the accused and further that the trial court’s acquittal
bolsters the presumption of innocence. Interference in a routine
manner where the other view is possible should be avoided, unless there
are good reasons for interference. (Vide: State of Rajasthan v.
Talevar & Anr., AIR 2011 SC 2271; State of U.P. v. Mohd. Iqram & Anr.,
AIR 2011 SC 2296; Govindaraju @ Govinda v. State by Srirampuram Police
Station & Anr., (2012) 4 SCC 722; and State of Haryana v. Shakuntla &
Ors., (2012) 4 SCALE 526).
17. In the aforesaid fact-situation, we have to weigh as to whether
the High Court is justified in reversing the judgment and order of
acquittal recorded by the trial court.
We have been taken through the entire evidence on record and
after re-appreciating the same we can unhesitatingly record that:
(i) Undoubtedly, the trial court has not made any reference to the
depositions of Batasi Devi (PW.2) and also of Kunwar Dhruv Narain Singh
(PW.1) in respect to the fact that the thatched house of roof of Smt.
Phulpatta Devi, maternal grandmother of Renu, deceased had fallen and
she as well as Renu used to sleep in the house of Ramesh, appellant
which was in very close vicinity of Smt. Phulpatta’s house. Ganga Ram
(DW.1) has stated that on the day of occurrence, Smt. Phulpatta Devi
and Renu did not sleep in the house of Ramesh, however, as he was
living permanently in the city and did not say that he was present on
that day in the village, his evidence cannot be taken into
consideration so far as this issue is concerned. The defence did not
cross-examine Kunwar Dhruv Narain Singh (PW.1) and Batasi Devi (PW.2)
on this issue. Thus, the trial court committed an error recording such
finding of fact.
(ii) It has come on record that Smt. Phulpatta Devi was an old,
infirm and totally blind woman and it was for this reason that Renu,
deceased was left for her assistance. The trial court ought not to have
drawn adverse inference for not examining Smt. Phulpatta Devi by the
prosecution. Thus, the adverse inference drawn by the trial court on
this count is unwarranted and uncalled for.
(iii) The trial court has held that Kunwar Dhruv Narain Singh (PW.1)
had been inimical to Ramesh and his family for the reason that
appellant’s father had been working in the agricultural field at the
said witness and after joining the service appellant’s father had
rendered financial help to other poor persons of the village and thus
those poor persons were not available for work to the said witness. In
this regard, the defence has examined Ganga Ram (DW.1) who had deposed
that the appellant’s father had been looking after the agricultural
work of that witness, however, joined the service in court 14 years
prior to the date of incident and Ganga Ram’s family was also looking
after the agricultural work of the said witness but 8 years prior to
the date of incident. He had also left the village and opened a beetle
shop in the city after getting financial aid from appellant’s father.
Such an evidence is required to be examined in the light of
attending circumstances and particularly taking into consideration the
proximity of time. Time is the greatest heeler. In case the appellant’s
father had left working in the field of the witness 14 years prior to
the date of incident and Ganga Ram’s (DW.1) family has left 8 years
prior to the said date, the time gap itself falsifies the testimony
for the reason that the time gap is a factor of paramount importance
in this regard. More so, it is not the defence case that any other
family or labour was available in the village to look after the
agricultural work of the said witness.
(iv) The recovery of part of the sheet and white clothes having
blood and semen as per the FSL report has been dis-believed by the
trial court in view of the fact that Ram Prasad alias Parsadi (PW.5)
and Bhikari (PW.10) did not support the prosecution case like other
witnesses who did not support the last seen theory. The trial court
failed to appreciate that both the said witnesses, Ram Prasad alias
Parsadi (PW.5) and Bhikari (PW.10) had admitted their signature/thumb
impression on the recovery
The factum of taking the material exhibits and preparing of the
recovery memo with regard to the same and sending the cut out portions
to the Serologist who found the blood and semen on them vide report
dated 21.3.1996 (Ext. Ka 21) is not disputed. The serological report
also revealed that the vaginal swab which was taken by the doctor was
also human blood and semen stained.
18. It is a settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross examine him. The
evidence of such witnesses cannot be treated as effaced or washed off
the record altogether but the same can be accepted to the extent that
their version is found to be dependable on a careful scrutiny thereof.
(Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra
Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of
Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of
Madhya Pradesh, AIR 1991 SC 1853).
19. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC
2766, this Court held that evidence of a hostile witness would not be
totally rejected if spoken in favour of the prosecution or the accused
but required to be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or
defence can be relied upon. A similar view has been reiterated by
this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC
543; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha
Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951;
Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and
Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.
Thus, the law can be summarised to the effect that the
evidence of a hostile witness cannot be discarded as a whole, and
relevant parts thereof which are admissible in law, can be used by the
prosecution or the defence. (See also: C. Muniappan & Ors. v. State
of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of
Delhi), (2011) 2 SCC 36)
20. Undoubtedly, there may be some exaggeration in the evidence of
the prosecution witnesses, particularly, that of Kunwar Dhruv Narain
Singh (PW.1), Jata Shankar Singh (PW.7) and Shitla Prasad Verma (PW.8).
However, it is the duty of the court to unravel the truth under all
circumstances.
21. IN BALKA SINGH & ORS. V. STATE OF PUNJAB, AIR 1975 SC 1962,
THIS COURT CONSIDERED A SIMILAR ISSUE, PLACING RELIANCE UPON ITS
EARLIER JUDGMENT IN ZWINGLEE ARIEL V. STATE OF MADHYA PRADESH, AIR 1954
SC 15 AND HELD AS UNDER:
“The Court must make an attempt to separate grain from the
chaff, the truth from the falsehood, yet this could only be
possible when the true is separable from the falsehood. Where
the grain cannot be separated from the chaff because the grain
and the chaff are so inextricably mixed up that in the process
of separation, the Court would have to reconstruct an absolutely
new case for the prosecution by divorcing the essential details
presented by the prosecution completely from the context and the
background against which they are made, then this principle will
not apply.”
22. In Sukhdev Yadav & Ors. v. State of Bihar, AIR 2001 SC 3678,
this Court held as under:
“It is indeed necessary however to note that there would hardly
be a witness whose evidence does not contain some amount of
exaggeration or embellishment, sometimes there would be a
deliberate attempt to offer the same and sometimes the witnesses
in their over anxiety to do better from the witness-box details
out an exaggerated account.”
23. A similar view has been re-iterated in Appabhai & Anr. v. State
of Gujarat, AIR 1988 SC 696, wherein this Court has cautioned the
courts below not to give undue importance to minor discrepancies which
do not shake the basic version of the prosecution case. The court by
calling into aid its vast experience of men and matters in different
cases must evaluate the entire material on record by excluding the
exaggerated version given by any witness for the reason that witnesses
now-a-days go on adding embellishments to their version perhaps for the
fear of their testimony being rejected by the court. However, the
courts should not dis-believe the evidence of such witnesses altogether
if they are otherwise trustworthy.
24. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this
Court had taken note of its various earlier judgments and held that
even if major portion of the evidence is found to be deficient, in case
residue is sufficient to prove guilt of an accused, it is the duty of
the court to separate grain from chaff. Falsity of particular material
witness or material particular would not ruin it from the beginning to
end. The maxim falsus in uno falsus in omnibus has no application in
India and the witness cannot be branded as a liar. In case this maxim
is applied in all the cases it is to be feared that administration of
criminal justice would come to a dead stop. Witnesses just cannot help
in giving embroidery to a story, however, true in the main. Therefore,
it has to be appraised in each case as to what extent the evidence is
worthy of credence, and merely because in some respects the court
considers the same to be insufficient or unworthy of reliance, it does
not necessarily follow as a matter of law that it must be disregarded
in all respects as well.
25. In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra, AIR
1973 SC 2622, this Court held :
“…Thus too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection
of the guiltless. For all these reasons it is true to say, with
Viscount Simon, that "a miscarriage of justice may arise from
the acquittal of the guilty no less than from the conviction of
the innocent ..." In short, our jurisprudential enthusiasm for
presumed innocence must be moderated by the pragmatic need to
make criminal justice potent and realistic. A balance has to be
struck between chasing chance possibilities as good enough to
set the delinquent free and chopping the logic of preponderant
probability to punish marginal innocents. We have adopted these
cautions in analysing the evidence and appraising the soundness
of the contrary conclusions reached by the courts below.
Certainly, in the last analysis reasonable doubts must operate
to the advantage of the appellant…”
(See also: Bhagwan Singh & Ors. v. State of M.P., AIR 2002 SC 1621;
Gangadhar Behera & Ors. v. State of Orissa, AIR 2002 SC 3633; Sucha
Singh (supra); and S. Ganesan v. Rama Raghuraman & Ors., (2011) 2 SCC
83).
26. Therefore, in such a case the paramount importance of the court
is to ensure that miscarriage of justice is avoided. The benefit of
doubt particularly in every case may not nurture fanciful doubts or
lingering suspicion and thereby destroy social defence. A reasonable
doubt is not an imaginary trivial or merely possible doubt, but a fair
doubt based upon reason and common sense.
27. In view of the above, we are of the considered opinion that
the acquittal in the instant case by the trial court was totally
illegal, unwarranted and based on mis-appreciation of evidence for the
reason that the court had given undue weightage to unimportant
discrepancies and inconsistencies which resulted in miscarriage of
justice. Thus, the High Court was fully justified in reversing the
order of acquittal.
In view of the above, the appeal lacks merit and is accordingly
dismissed.
………………………..J.
(Dr. B.S. CHAUHAN)
………………………..J.
(DIPAK MISRA)
New Delhi,
May 21, 2012
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