IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 70/1998 Reserved on: 26.2.2010 Decided on: 7.4. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Deep Chand and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Surjit Singh, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General and Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondents : Mr. Ashwani Sharma, Advocate. _____________________________________________________ Per Rajiv Sharma, J. A challenge has been laid by the State to the judgment dated 12.8.1997 of the learned Sessions Judge, Mandi in Sessions trial No. 28 of 1996, whereby respondents, who were charged with and tried for offence, under section 302 read with section 34 of the Indian Penal Code, have been acquitted. Prosecution case, in a nutshell, is that respondent No.2 Atma Ram is resident of village Marhog in Tehsil Karsog, District Mandi. He has three sons, namely, Labh Singh, Deep Chand and Chet 1 Whether reporters of the local papers may be allowed to see the judgment? . yes. 2 Ram. Labh Singh was married to Krishna Devi deceased. Labh Singh and his younger brother Chet Ram lived together with their mother Simro Devi. Respondent Deep Chand and his family lived with his father Atma Ram. On the morning of 5.6.1996, children of Labh Singh, including his daughter Meera Devi (PW-2) were picking up Shahra fruit (apricot) from a tree. Respondent Deep Chand came there and asked them why they were picking up the fruit. Krishana Devi wife of Labh Singh (PW-4) appeared on the scene and asked Deep Chand why he was threatening her children. Respondent Deep Chand admonished her. Thereafter Krishna Devi also started picking up the fruits. Respondent Atma Ram who was standing near his house asked Deep Chand to hit her with force “Jor Se Maro”. On this, Deep Chand hit Krishna Devi with sickle. Labh Singh was also roughed up by Deep Chand. Deep Chand then left towards the field. Matter was reported by Hari Singh (PW-1) to the Police. Police reached the spot in the evening. Inquest report Ex. PC was prepared. FIR was registered. Dead body was sent for postmortem. Postmortem was conducted by PW-3 Dr. Pushap Raj on 7.6.2006 at 12.15 P.M. The matter was investigated and challan put up against the respondents. Respondents were charged for offence under section 302 read with section 34 of the Indian Penal Code. Prosecution examined a number of witnesses to prove its case against the respondents. Respondents were examined under section 313 of the Code of Criminal Procedure. According to respondent No.1, his brother has falsely implicated him and his father due to enmity. He has also stated that Lab Singh wanted to 3 kill him with sickle. According to respondent No.2, Labh Singh told the villagers that “we have killed Krishna Devi”. He reached the spot after hearing the noise. Villagers told him that Krishna Devi has died. According to him, false case has been registered against him. He has also stated that Labh Singh wanted to acquire the entire land. PW-2 Meera Devi, daughter of deceased and PW-4 Labh Singh, husband of the deceased are the material witnesses. Sickle was recovered at the instance of respondent No.1. Human blood was found on the sickle as per report of the Forensic Science Laboratory, vide Ex. PN. Respondents were acquitted by the trial court vide judgment dated 12.8.1997. Mr. Rajinder Dogra, learned Additional Advocate General has vehemently argued that prosecution has proved its case against the respondents conclusively. He also argued that the learned Sessions Judge has misread the evidence. Mr. Ashwani Sharma has supported the judgment of the learned Sessions Judge. We have heard the learned Additional Advocate General and also counsel for the respondents and perused the record carefully. The incident took place on 5.6.1996 at 8.30 A.M. FIR was registered at the instance of PW-1 Hari Singh. Inquest was prepared vide Ex.PC. Postmortem was conducted by PW-3 Dr. Pushap Raj. He has noticed spindle shaped incised wound 5cmx3cmx2cm linear, oblique directing downwards left to right situated on left side of neck. Medial end of the wound was just lateral to the thyroid cartilage. 4 This wound was 3cm wide in middle and narrowing towards both ends. The wound was 4.5cm above clavicle and 3cm below angle of mandible. The sternomastoid muscle, common carotid artery and adjoining vessels were cut through and through under the wound. Trachea and vertebral column were not injured. PW-3 has opined that deceased died due to haemorrhagic shock leading to cardio- pulmonary arrest. The probable time which elapsed between postmortem and death was two to three days. PW-3 has not mentioned the probable time of injury and death. According to him it was immediate. He has identified sickle Ex.P-1. According to him, the injury on the neck could be caused with sickle Ex.P-1 and the injury on the neck was sufficient to cause death. PW-2 Meera Devi is the daughter of deceased. She was aged about 12 years at the time of incident. She has categorically deposed that she along with four brothers and sisters had gone to eat Shahara fruits. Respondent No.1 threatened them. Her mother came to rescue them. She asked her uncle why he was threatening them. Respondent No.1 told her “Tu Bari Ayee Baat Karne”. Thereafter her mother also started picking up Shahara fruits. She was pushed by Deep Chand. Her grand father (respondent No.2) told Deep Chand “Jor Se Maro”. Deep Chand thereafter hit her mother on the neck with sickle. She fell down. Her uncle left towards fields. Her statement was recorded by the Police. There are no material contradictions in the statement made by her before the police and what she has stated in the Court. She has denied the suggestion that her father came running with the sickle in his hand 5 and tried to hit Deep Chand. She has also denied the suggestion that Deep Chand snatched the sickle from the hand of her father. PW-4 Labh Singh is the husband of deceased and elder brother of respondent No.1 Deep Chand. He has deposed that on 5.6.1996 at about 8.45 A.M. his children, including Meera Devi had gone to pick up Shahara fruits. He was outside his house. According to him, Deep Chand was having sickle in his hand. His wife appeared on the spot and asked Deep Chand why he was threatening her children. Deep Chand told her “Tu Bari Ayee”. Deep Chand pushed her. His father, who was near his house, shouted “Jor Se Mar De”. Thereafter Deep Chand hit her with sickle and his wife fell down. She sustained injury on the neck. PW-5 is Guna Nand. He was associated by the police during investigation. He has signed the recovery memo whereby sickle Ex.P-1 was recovered at the instance of Deep Chand. According to him, Deep Chand had brought the sickle from the room. PW-10 is S.I. Krishan Lal. He has investigated the matter and prepared the site plan Ex.PM. According to him, sickle was produced by Deep Chand from the room, which was on the extreme side. Statement of PW-2 Meera Devi has been corroborated by PW-4 Labh Singh. Testimony of PW-2, though child witness, inspires confidence. She understood all the questions and her deposition is natural. It is settled law that the statement of a child witness can be relied upon, if it inspires confidence and is corroborated by other independent witnesses. 6 Their Lordships of the Hon’ble Supreme in Baby Kandayanathil versus State of Kerala, AIR 1993 SC 2275 while dealing with the evidence of child witness have held as under: “4. The learned trial Judge has put preliminary questions to each of the witnesses and satisfying that they were answering questions intelligently without any fear whatsoever, proceeded to record the evidence. In the chief examination, each of the witnesses has given all the details of the occurrence. There has been a searching cross- examination and the witnesses withstood the same. We have also gone through the evidence and we do not see any reason to doubt their evidence. They are the most natural witnesses who had been present in the house at the night time. Both the courts have accepted their evidence and we see no ground to interfere. There are no merits in this appeal and the same is dismissed. The appellant who is on bail shall surrender and serve out the sentence and the bail bond stands cancelled.” Their Lordships of the Hon’ble Supreme Court in Dattu Ramrao Sakhare and others versus State of Maharashtra. (1997) 5 SCC 341 have held that the testimony of a child witness can be relied even in the absence of oath if he understands the nature of the questions and gives rational answers thereof. Their Lordships have further held that the court must infer that the witness is reliable one and his/her demeanour is like any other competent witness and there is no likelihood of being tutored. Their Lordships have further held that corroboration is not necessary, however, as a rule of prudence 7 the court can seek corroboration. Their Lordships have held as under: “5.The entire prosecution case rested upon the evidence of Sarubai (Public witness 2 a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle we may proceed to consider the evidence of Sarubai (PW 2).” Their Lordships of the Hon’ble Supreme Court in Panchhi and others versus State of U.P., (1998) 7 SCC 177 have held that 8 the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. Their Lordships have further held that evidence of a child witness must find adequate corroboration before it is relied on though it is a rule of practical wisdom than of law. Their Lordships have held as under: “11. Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW-1 being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.” The Apex Court in Suryanarayana versus State of Karnataka (2001) 9 SCC 129 has held that the testimony of a child witness should not be rejected only on the ground of a witness being of tender age. The Apex Court has further held that if the child withstand the cross-examination and if the testimony inspires confidence so as to rule out possibility of tutoring, it can be relied 9 upon as the sole basis for convicting the accused. Their Lordships of the Apex Court have held as under: “5. Admittedly, Bhavya (PW2), who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness. The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the Court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the 10 possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.” The Apex Court in Ratansingh Dalsukhbhai Nayak versus State of Gujarat, (2004) 1 SCC 64 has held that conviction on the basis of child witness is permissible if such witness is found competent to testify and the court after carefully scrutiny of its evidence is convinced about the quality and reliability of the same. The Apex Court has also held that the child can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The Apex Court has further held that mere fact that the child was asked to say about the occurrence and as to what he saw did not amount to tutoring. Their Lordships have held as under: “6. Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. Age of the witness during examination was taken to be about 10 years. Indian Evidence Act, 1872 (in short the `Evidence Act') does not prescribe by particular age as determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions, because of tender years, extreme old age, disease whether of mind, or any other cause 11 of the same kind. A child of tender age can be allowed to testify if he had intellectual capacity to understand questions and given rational answers thereto. This position was concisely stated by Brewer J. in Wheeler v. United States, (159 U.S. 523). The evidence of a child witness is not required to be reject per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001(1) Surpeme 1 : 2001(1) RCR(Cr.) 602 (SC)). 7. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997(5) SCC 341 : 1997(3) RCR(Cr.) 227 (SC) it was held as follows : "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." The decision on the question whether the child witness has sufficient intelligence primarily 12 rest with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erronesous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and mouled, but in is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.” In the present case also, as discussed hereinabove, the testimony of PW-2 Meera Devi inspires confidence and is trustworthy. Her presence on the spot was natural. She has withstood the searching questions in cross-examination. PW-4 Labh Singh has fully supported the case of prosecution. He has seen his brother Deep Chand hitting his wife with sickle. It has come on record that there is enmity between two families. However, this alone cannot be a circumstance whereby elder brother will falsely implicate his younger brother and father. PW-4 has signed recovery memo Ex.PE. PW-5 Guna Nand has also signed Ex.PE as a witness. His statement was also recorded. Simro Devi 13 was given up. Case of prosecution will not dilute in any manner only for the reason that mother-in-law (Simro Devi) of the deceased was not produced. She was not an eye witness. Respondent No.2 was also standing in close proximity to the place of occurrence. He could see altercations taking place between respondent No.1 and deceased. He instead of pacifying his son and daughter-in-law instigated respondent No.1 to hit deceased Krishna Devi with force. Deep Chand was holding sickle in his hand. PW-2 Meera Devi, child witness and PW-4 Labh Singh have categorically deposed about the utterances made by respondent No.2. Mr. Ashwani Sharma has vehemently argued that recovery of sickle Ex.P-1 is doubtful. Ex.P-1 was recovered at the instance of Deep Chand. He has produced it from his house. PW-4 Labh Singh has deposed the manner in which sickle was produced by Deep Chand. PW-5 Guna Nand and PW-10 Krishan Lal, Investigating Officer, have supported the case of prosecution regarding recovery of knife. Ex.P-1 was stained with human blood as per report Ex. PN of the FSL. There is delay in registration of FIR. The incident took place at 8.30 A.M. on 5.6.1996. Police visited the spot in the evening. The distance between the police station and place of occurrence is about 40 KMs. The incident was reported by the family to PW-1 Hari Singh. He had informed the police at 11.00 A.M. The statement of child witness, Meera Devi, was recorded by the police under section 154 of the Code of Criminal Procedure. The police is expected to reach the spot immediately after the matter is reported. However, if 14 there is delay of few hours, it can be due to distance between the place of occurrence and police station. Entire evidence is required to be looked into and it is only, if there is inordinate delay, which remains unexplained that it may have some bearing on the prosecution case. According to learned Sessions Judge, the delay has occurred as the family was preparing a case. This cannot be accepted. The family was under shock. Children had lost their mother and husband had lost his wife. Deceased had been killed by her brother-in-law. The family was under trauma and shock. The family had informed Hari Singh (PW-1). PW-9 Harish Kumar has deposed that he has prepared the rukka in the evening and sent it to police station for registration of case through constable Parma Nand next morning. The FIR was registered at 8.30 A.M. on 6.6.1996. Inordinate delay in registration of the FIR is only one of the circumstances, which is to be looked into by the Court. Prosecution case cannot be thrown out on this ground alone in case the delay is properly explained by the prosecution. The manner in which daily diary Ex.PK has been recorded has not caused any prejudice to the respondents. Learned Sessions Judge has wrongly given undue importance to the fact that statement of child witness Meera Devi was recorded by the police and not of her father Labh Singh (PW-4) under section 154 of the Code of Criminal Procedure. Mr. Ashwani Sharma has argued that in fact the scuffle had taken place between the deceased, Deep Chand and Labh Singh. According to him, blow was inflicted by Labh Singh to Deep Chand, 15 however, it hit the deceased accidentally. This submission cannot be accepted in view of overwhelming evidence led by prosecution that it was Deep Chand, who hit the sickle. Medical evidence supports the version of prosecution that it was Deep Chand, who hit the deceased Krishna Devi. Deposition of PW-2 Meera Devi and PW-4 Labh Singh have not been correctly appreciated by the learned Sessions Judge. Statement of PW-2 Meera Devi is fully corroborated by PW-4 Labh Singh. PW-2 and PW-4 are eye witnesses. PW-3 Dr. Pushap Raj has opined that death could be caused by sickle Ex.P-1. According to him, death had been caused due to haemorrhagic shock leading to cardio-pulmonary arrest. Weapon of offence has been recovered at the instance of respondent Deep Chand. The weapon of offence has been identified by PW-4 Labh Singh and PW-5 Guna Nand has signed the recovery memo as a witness. The recovery of weapon of offence has been duly proved by the prosecution. PW-2 and PW-4 have deposed in clear terms that respondent No.2 Atma Ram instigated respondent No.1 Deep Chand to hit the deceased with force. Criminal and civil litigation is going on between the parties. However, the fact of the matter is that, as noticed above, a brother will not falsely implicate his younger brother and father that too in a heinous crime. For the foregoing reasons, appeal is accepted. The judgment of the trial court acquitting the respondents is set aside. They are held guilty of offence, under section 302 read with section 34 of the Indian Penal Code and are convicted accordingly. They be 16 produced on 28.4. 2010 for being heard on the question of quantum of sentence. Non-bailable warrants of arrest be also issued. (Surjit Singh), J (Rajiv Sharma), J 7.4.2010 *awasthi*