Case: Jagjit Singh @ Jagga Vs. State of Punjab

creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening. 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr.P.C. is significant. No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of hers had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, therefore, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eye witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex.PW-6/A was being recorded. 31. There is yet another aspect of the matter which has remained unexplained. PW-6 has not mentioned a word as to how Rabi Singh was killed. Admittedly, he was sleeping in the motor room and just outside that room PW-6 was sleeping with Jamila (deceased). Apart from the fact that there is not an iota of evidence as to who assaulted Rabi Singh, there appears to be no reason why the appellant should commit the murder of his own uncle with whom is family was on cordial terms. In fact his father Amar Singh, PW-5, had come in the morning to give tea to his brother Rabi Singh. There is nothing on record to suggest that the appellant had any animus against his own uncle. Nor is there any evidence on record to suggest any possible motive for the appellant to commit such a heinous crime. We should not be understood to say that it is necessary to prove motive for the commission of an offence even when there is satisfactory direct evidence in proof thereof. In this case since we doubt the truthfulness of PW-6 so far as the involvement of the appellant is concerned, but there is evidence to support the involvement of another person namely, Raju Bhaiya, who has absconded, the absence of motive acquires significance because it is possible that the offence may have been committed by Raju Bhaiya along with some other person or persons. 32. We also observe that though a motor cycle and a wrist watch were seized from the place of occurrence, no evidence has been produced by the prosecution to connect the appellant with the recovery of these two items. The conviction of the appellant, therefore, depends solely upon the testimony of PW-6, Billo. We entertain a serious doubt as to whether she knew the appellant at all when the occurrence took place. There is no evidence to prove that she was known to the appellant. The name of the appellant appears to have been introduced by her father, PW-4, who is not an eye witness. We, therefore, do not consider it safe to sustain the conviction of the appellant on the sole testimony of the child witness PW-6, Billo. The appellant is entitled to the benefit of doubt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. The learned Sessions Judge came to the conclusion that PW-6 Billo was a reliable witness and though a child witness she could be relied upon as she impressed the Court as a truthful eye witness. The Trial Court noticed the fact that PW-6 was examined as a witness almost 5 years after the occurrence and during this period she was residing with her parents. She knew Jagga the appellant since he used to come to the tube well and there was sufficient opportunity for her to identify the appellant. The medical evidence supported her version, and the fact that she was herself an injured witness added credibility. The first statement recorded my PW-7, Dr. Bhupinder Singh was relied upon by the Trial Court on a finding that she was fully conscious as per the certificate of fitness given by the doctor. The fact that she named the appellant in response to a leading question put to her by her father was no ground to discard her statement. It further held that no prejudice was caused to the accused, even though there was delay in recording the statement of PW-6 by the Magistrate. The learned Sessions Judge found that since the victim was under a great shock, she was not in a position to make a statement earlier. He further observed that mere omissions and improvements made by her in her statements before the Magistrate or the doctor was no ground to doubt her credibility. As regards the appellant being known to the aforesaid witness the Trial Court was content with observing that since he used to come to the tube well, she had known him from before. Further it held that on the day of occurrence there was sufficient opportunity for PW-6 to identify the appellant. He, therefore, found her evidence acceptable. Considering the evidence of PW-4 the Court found that though there were some improvements appearing in his testimony, those improvements did not go to the root of the case and that his evidence corroborated the testimony of Billo PW-6.Before the High Court as well similar submissions were advanced and for similar reasons the High Court dismissed the appeal and affirmed the sentence of death. The observations in the judgment of the High Court also suggest that the High Court concurred with the view of the Trial Court with regard to the commission of offence of rape by the appellant. As we have observed earlier this finding cannot be sustained at all in the absence of any charge being framed under Section 376 IPC and in the absence of any evidence whatsoever to support this allegation.Though a submission was made before the Trial Court that the appellant was not known to PW-6, Billo, the Trial Court brushed aside this argument holding that since the appellant used to come to the tube well, she had occasion to see him and identify him. Apart from the fact, as we have pointed out above, that in the course of her deposition, she does not say so, it is also difficult to accept the explanation furnished by PW-6 five years after the occurrence, namely that since he happened to be the son of Amar Singh, who was the owner of the tube well, where her maternal grandparents were residing she knew the appellant. One cannot lose sight of the fact that this child was only 7 years old when the occurrence took place. She had come to the tube well where her grandparents resided only in the evening preceding the night of the occurrence. There was, therefore, no truth in her assertion made in an earlier statement that she knew the appellant since he used to frequently come to the tube well. As noticed earlier, in the course of her deposition, she does not say so. There is no evidence on record to suggest that PW-6 had ever stayed at the tube well earlier. In the course of investigation, she had not claimed to have known the appellant since he was the son of Amar Singh at whose tube well her grandparents were residing. In fact in her earlier statements, Amar Singhs name has not been mentioned at all. We entertain a serious doubt whether a girl 7 years old and residing in a different village would have known to whom the tube well belonged. These facts expose a serious lacuna in the prosecution case because there is no evidence to establish beyond reasonable doubt that the sole eye witness PW-6, Billo had ever an opportunity of seeing or knowing the appellant. The mere fact that he happened to be the son of Amar Singh, who was the owner of the tube well, by itself does not establish that the witness had ever seen the appellant before the day of occurrence. This, coupled with the fact that in her first statement PW-6/A recorded on 30th August, 1996, her father PW-4 by putting a leading question to her suggesting the involvement of the appellant, got the appellant implicated creates a serious doubt about the truthfulness of this witness. Thereafter she repeated the involvement of the appellant in her subsequent two statements. If there was any evidence to prove that PW-6, Billo, who was then aged about 7 years had ever an opportunity of seeing the appellant and identifying him, her evidence could have been acted upon. Unfortunately, there is no such evidence on record. She was persuaded to name the appellant by her father PW-4 who suggested to her the involvement of the appellant. We, therefore, entertain serious doubt as to whether PW-6, Billo had ever seen the appellant so as to be able to name him as one of the assailants. Moreover, she had come to the tube well only in the evening preceding the night of occurrence. There is no evidence to establish that the appellant had come to the tube well that evening.