D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT D.B. CRIMINAL APPEAL NO. 548/2003 (GAURI SHANKAR VS. STATE) Appeal Under Section 374 Cr.P.C. against the judgment dated 09.04.03 passed by Additional Sessions Judge, (FT) , Anupgarh in Sessions Case No. 29/03. Date of Judgment : 19th March, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON’BLE MR. JUSTICE C.M. TOTLA Mr. B.B. Singh ] for the appellant. Mr. D.L. Rawla ] Mr. K.R. Bishnoi, P.P. = = = = BY THE COURT :- (PER HON'BLE TOTLA, J.) REPORTABLE Preferring this appeal the appellant questions his conviction for the offence of Section 302 IPC and awarded sentence of life imprisonment and fine of Rs.500/-. In the night intervening between September 16th and 17th, 2002 at village Ramevali occurred death of Smt. Manohari wife of appellant and her mother Smt. Rampyari as a result of injuries inflicted to them. The incident allegedly and per prosecution is that on 17.09.02 at about 1:30 AM (early night), daughter PW/1 of appellant coming with Jagdish PW/14 at P.S. Rawla lodged information in writing Ex.P/1 that she (PW/1) with her father Gauri Shankar, mother, Manohari, sister K (PW/2) and brother G PW/3 reside in their house near soap factory - father usually beat D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 2 mother – that maternal grand mother Smt. Rampyari who came about 15 days ago to visit them also is living with them – on 16.09.02 altercation and rude exchanges occurred between mother and father. PW/1 narrated that at about 12:30 night when she, mother Manohari, maternal grand mother Rampyari, sister K and brother G all asleep in compound and father out on a cot – suddenly brother and sister waking up observed father with an iron axe in hands who inflicted two blows of it at neck of mother and two three blows at neck of maternal grand mother – she (PW/1) afraid prayed father not to do so. As mother and grand mother oozing blood she cried and came neighbour Smt. Krishna PW/6 and also a teacher from neighbouring street to whom she narrated incident and tried to take care of mother and grand mother but they were dead. Further narrated that meanwhile also came Jagdish PW/8) with whom she has come to police station. On this information SHO PW/15 registered FIR No. 215/02 Ex.P/1 for the offence of Section 302 IPC. Commencing investigation PW/15 (i) examining place of occurrence at 8 AM prepared memo and site plan Ex.P/2 (ii) got place of occurrence photographed by PW/12 - negatives Ex.P/37, 38 and positives Ex.P/31 to 36 (iii) examining dead bodies prepared memos of injuries and state of body etc Ex.P/3 to Ex.P/6 (iv) below the separate cots of Smt. Manohari and Rampyari spread was blood, samples of those and also plain dust separately collected and sealed preparing memos Ex.P/8 to Ex.P/11 (v) Pair of chappals lying below both cots having blood stains also seized and sealed preparing memos Ex.P/12 and 14 (vi) Moose of cot over which Smt. Rampyari was and cotton strips of cot over which Manohari lay had blood, pieces of which collected and sealed - memos Ex.P/13 and Ex.P/16 (vii) also was seized bedsheet from cot of Manohari preparing memo Ex.P/17 (viii) D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 3 arranging change of clothes, worn shirt over the person of Smt. Rampyari and Jamfar of Manohari also seized and sealed vide memo Ex.P/7 and 15. Postmortem of bodies conducted by Doctor PW/9. Appellant arrested very day who disclosed to PW/15 and recorded as Ex.P/41 that iron axe is placed in the ceiling of bathroom and same was recovered at his instance having blood stains was seized and sealed preparing memo and site plan Ex.P20-21 and packet marked as L. Recording statements of witnesses and delivering sealed packets of different articles intactly at laboratory, chargesheet submitted. Appellant is charged for murdering wife and mother in law in night of 17.09.02 around 12:30 by inflicting injuries of axe. Learned Single Judge relying on testimony of PW/1, PW/2 and PW/3 and recovery of axe, convicted and sentenced the appellant as above. Among the 15 prosecution witnesses examined PW/1 and PW/2 daughters of appellant and son PW/3 are eye witnesses of whom PW/1 also is first informant. PW/14 Jagdish said to have accompanied PW/1 to police station. Motbirs PW/4,5,7 and PW/13 are declared hostile who not supporting prosecution admit of their signatures on memos relating to them. PW/9 proves postmortem report. Satyanarain PW 8 depose regarding happening of the incident and police proceedings. PW/10, PW/11 relate to delivering packets to laboratory and PW/15 is SHO I.O. Appellant stating ignorance of death and injuries to wife and mother-in-law asserted that witnesses are telling lie under influence of Smt. Munni the sister of his mother in law. No defence evidence led. Learned counsel for the appellant contends that witnesses PW/1,2,3 are child witnesses and serious are inconsistencies in versions of each other (ii) substantially different narration regarding who sleeping D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 4 with whom, where and on what (iii) regarding visibility and source of light materially different is evidence of PW/2 and 3 (iv) PW/14, PW 6 are declared hostile and no neighbour or any independent witness (v) per deposition of PW/1,2 ,3 it definitely appears that PW/1 did not lodge the report (vi) 14-15 year girl in post midnight when mother and Nani killed, going to P.S. is not a normal behviour and if PW/14 or any other insistently took her then it discloses his ulterior objective. Contends that recovery is not believable and cannot be imagined that the person doing such an act shall be concealing the axe in and on house and that it not found when place was searched by police personnels shows that implanted. On behalf of appellant, thrustly argued that PW/1,2,3 respectively aged 15, 14 and 9 years at the time of deposition and younger by 7-8 months at the time of said incident cannot be worth reliance and safe belief to the extent of proof particularly when not corroborated by any other evidence or any point. For this also argued that no motive or definite reason for the incident is appearing and PW/1 do not categorically say of her going and lodging the report. Learned Public Prosecutor submits that three children though minor but all in consistent versions say that only the appellant inflicted several injuries killed wife and mother in law. Giving thoughtful consideration to arguments, we have carefully gone through the record, evidence produced, judgment assailed and memo of appeal. PW/1, PW/2, PW/3, SHO PW/15 and also PW/8 and PW/4 who soon reached there say that Rampyari and Manohari both were dead bfecause of injuries inflicted and on different memos are signatures of them and other motbirs. D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 5 Medical Officer doctor PW/9 who conducted postmortems on 17.09.02 proving reports Ex.P/23 and P24 depose that Smt. Rampyari had injuries (i) incised wound 15 x 10 x 5 cm – clotted blood sharp margins – left mandible neck muscle and other major vessels cut cervical vertebra broken at 4th cervical vertebra (ii) incised wound 5 x 4 cm x bone deep at middle of chin. Time of examination was 2:30 PM. Smt. Manohari had injuries (i) incised wound – 10 x 5 x 3 cm below rt ear (ii) incised wound 10 x 4 x 5 cm – at lower part of right of neck - vessels deeply cut at neck (iii) incised wound 5 x 3 x 3 cm mandible broken vessels cut in right of neck (iv) incised wound 5 x 2cm x skin deep upper part of chest. Both died of shock due to excessive bleeding within 12-24 hours of examination that after evening of 17th and prior to morning of 18th. Given the above injuries, there can be no reluctance in holding not only that injuries very definite to cause death in normal course but also if above injuries to both caused by one person, one time and place and no other specific extenuating fact that on the basis of injuries only also be inferred that the assailant had all the intention or bare minimum of very definite knowledge of causing death. PW/1, 2 and 3 children of appellant respectively when testified in March, 2003 were 15, 12 and 9 years and the incident is of March, 2002. Going by the age cannot be said that PW/1 and PW/2 were not of age of good understanding. PW/2 was undergoing education and PW/1 doing domestic work, signatures of PW/1 also appear on memos Ex.P/2 to Ex.P/17. Thus, they not total illiterate. PW/3 too is not of very tender age. Regarding child witness broad principle is of caution. Not is that corroboration is a must but cautiously and guardingly is to be evaluated D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 6 and appreciated the testimony. Again the extent of degree of corroboration, if it is needed, or is desirable depend upon other relevant facts and circumstances. All persons are competent to testify unless the Court considers them of not being able to understand, question or giving rational answers due to infirmities or like. On the strength of various pronouncements by Hon'ble Apex Court including (i) (2009) 6 SCC 712 Himmat Sukhadeo Wahurwagh and others Vs. State of Maharashtra (ii) (2009) 12 SCC 731 State of Karnataka Vs. Shantappa Madivalappa Galapuji and others (iii) (2008) 1 SCC (Cri) 109 Gagan Kanojia and another Vs. State of Punjab (iv) (2006) 13 SCC 643 Acharaparambath Pradeepan and another Vs. State of Kerala emerged is that if child witness not suffering any intellectual incapacity and understanding answers rationally, then his evidence is admissible like any other oral evidence. Neither seems any definite principle nor perhaps can be regarding need of corroboration. Precaution is to be taken that if the child witness is able to differentiate betwee right or wrong not under influence and further eliminating is possibility of inducement by not deposition worth belief then not needed is corroboration on any point. As child may be more vulnerable to inducement, influence or any like, so his evidence is to be evaluated very carefully and, if necessary, adequate corroboration is to be looked upon and again corroboration, if is needed and even extent of corroboration desired is to be gathered from other relevant factors and circumstances. Very often, child witness can be expected to give true version of the incident particularly when relating to killing of parent. For the child witness, it is for the Court to satisfy himself about the necessary requirements. Learned Judge has administered oath to PW/1 and PW/2 who respectively were 15 and 12 years. Oath is not D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 7 administered to PW/3. For PW/2 specifically is mentioned witness understands between true and lie and also sanctity of oath, no such mention is for PW/1 but she is elder to PW/2. Evidence of PW/1, 2 and 3 is recorded on the same day and for PW/3 also is mentioned that he does not understand sanctity of oath so not administered. As such, the Judge clearly has recorded his satisfaction of competence of the witness and their capacity to understand and answer well. For the case in hand, PW/1, PW/2, PW/3 all three who are children of appellant and deceased straightly say of inflicted of injuries by appellant. Having lost their mother and father in prison, their sufferance, particularly the mental state can be understood and almost seems impossible that for killing of mother and grand mother, they shall be incriminating father and that too while allowing real culprit to escape. PW/1 daughter of appellant say that they all were at home and since last 4-5 days some quarrel between father and mother was continuing and on that day also was quarrel and at night 12-1 AM, they were sleeping in compound and father sleeping just out – at about 12-1 O’clock she saw that father coming in compound inflicting blows of axe, before her (PW/1) and in her view, to mother and grand mother (and then he) went to police station – brother sisters were also there and soon came several others. PW/1 narrates that father used to beat mother very often for dowry and she going with Jagdish lodged report at Police station. PW/1 categorically say that father also pushed her and she do not know why it is not mentioned in her statement Ex.D/1 though she mentioned of it and that beating because of dowry was not told by her to police. PW/1 states that soon after incident father (himself) went to police and told that (he) has come killing wife and mother in law, so, the police caught hold of him (father) and telling so by appellant was also told to her (PW/1) by D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 8 policeman who came after father informed them (police). PW/1 admitting of putting signatures on memos Ex.P/2 to Ex.P/7 at the time the same were prepared next morning denies that she is deposing wrong because of maternal uncle. Also say that with police personnels and maternal uncle (not real) Jagdish she went to police station and lodged report Ex.P/1 on which are her signatures and Jagdish also affixed thumb impression. PW/2 younger daughter says that soon after the incident father (appellant) tried to run for taking (children) and father went to jail – also say that he and Gopal going to uncle Jagdish whose house is at a distance. Gopal younger son state that they all three kept sitting there then went to Jagdish and then came police. PW/1 in detail had deposed that her father for dowry and other things often did quarrel to mother and on that day also they quarrelled - at about 12 –1 am in night his father sleeping out coming in compound in her view, inflicted blows of axe to mother and grand mother. Per PW/2 father often used to beat mother and on that day night also they quarrelled, and as she woke up saw that father inflicted two blows of axe to grand mother and three to mother and that no electricity but was moon shining. Then appellant tried to run away taking them (children) with him but as they went to mother, father went to jail. Similarly, Gopal PW/3 say that in night father did gave blows of axe to mother and Nani and he observed so and mother and grand mother died – then after some time they went to their maternal uncle Jagdish living at some distance and then came police. PW/1, 2 & 3 all were testifying in relation to killing of mother and maternal grand mother against father. Their agony and pain and mental state can only be imagined. Absolutely no reason is to doubt any part of testimony of PW/1, 2 or 3. D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 9 Applying above principles and looking to facts, evidence and relevant material, no reason or any circumstances of whatever nature show of any possibility of any part of their testimony being untrue. Incharge Police Station PW/15 depose that PW/1 coming with Jagdish at 1:30 AM in night gave report Ex.P/1 over which getting signatures of Seema and thumb impression of Jagdish, he registered FIR but PW/1 also mentions that police came to home and then with them she and Jagdish went to police station. On this contention on behalf of appellant is that substantial is the manipulation. In the very considered opinion of the Court and looking to other evidence and surrounding circumstances, cannot be said that information to police was given by appellant himself. If somehow some information is given or received at P.s. but the information in not some what reasonably definitive or indicative one and merely putty the machinery on alert then that information not necessarily always amounts to FIR. Still considering and only for the sake of arguments and because PW/1 says that after coming of police, she went to police then per her, appellant himself went to police station and gave information regarding incident – even then at best when no incriminating fact part of incident, only on the basis of FIR is to be taken or gathered against him (appellant) – even that eventuality does not help appellant because eliminating factum of tendering FIR by PW/1 (and also recovery of axe) stands conclusively proved that as SHO arrived both in pool of blood were lying dead on cots. From the other evidence it stands proved that injuries inflicted in midnight and both were and found dead. Regarding incident, direct is evidence of PW/1, 2 and 3. PW/1 and PW/2 both say that father often used to beat mother and D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 10 continued quarrels between them. PW/1 was repeatedly beating and quarreling. Though PW/1 also say of beating for dowry but brother Saryanarain PW/8 who per him is son of Rampyari and brother of Smt. Smt. Manohari do not tell of any such. However, it firmly establish that for whatever reason, quarrel continuously occurred and events leading to incident included prior beating to and continuous quarrel with wife on that day also quarrel preceded the incident. Here absence of motive or reason do not make any effect. Appellant was arrested on same day at 7:45 PM. SHO PW/15 depose that appellant disclosed of axe being in the ceiling of bathroom which taken in writing as Ex.P/20 and appellant accompanying him got recovered axe from ceiling of bathroom which sealed. Though recovery is not supported by motbir PW/5 and 13 but both of them accepts their signature on it. As such stands proved that from house, this axe having sharp side of 3 ½ inch was recovered. Sealed packet were delivered at laboratory and report Ex.P/43. Provenly disclose that all articles except of control soil had human blood and on kameez and jamfar of deceased and also on axe recovered was human blood B group – axe lying there in the knowledge of the appellant is strong piece of evidence against him. Still and only for the sake of argument, eliminating recovery of axe, at the instance of appellant, stands proved that on the very same day in the house belonging to appellant and where appellant resided was (found) an iron axe having blood stains. In house lived both deceased, appellant and three children PW/1 to 3 gives inference that if any loss to do away with the axe, then it was the appellant. Thus, stands proved that appellant inflicting injuries of heavy sharp object axe to his wife and mother in law caused their instant death. Injuries caused while they were laying on cots and four injuries to one, D.B. Criminal Appeal No. 548/2003 (Gauri Shankar Vs. State) 11 two to other and all at or above neck leaves no room for any other inference other than of intention to cause death. Resultantly, conviction of appellant for the offence of Section 302 IPC and sentence awarded of life imprisonment is to be affirmed. Accordingly, the appeal challenging the conviction and sentence of appellant Gauri Shankar S/o Ram Rakh vide judgment dated 09.04.2003 is rejected. (C.M. TOTLA), J. (GOVIND MATHUR), J. bjsh