Madhya Pradesh High Court
Pattu @ Babulal vs State Of M.P. on 20 September, 2019
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- CRA No. 702/2008
Pattu @ Babulal vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 702/2008
Pattu @ Babulal
Versus
State of Madhya Pradesh
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Shri Atul Gupta, learned counsel for the appellant.
Ms. Anuradha Singh, learned Public Prosecutor, for the
respondent/ State.
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JUDGMENT
(20/09/2019) Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under Section 374(2) of CrPC, challenging the judgment dated 4.9.2008 passed in Sessions Trial No. 01/2007 by Sessions Judge, Vidisha, whereby the Trial Court convicted the appellant for commission of offence punishable under Section 302 of IPC and sentenced to undergo Life Imprisonment and fine of Rs.5000/-, with default stipulation.
2. The facts necessary to be stated for disposal of the instant appeal are that on 4.10.2006 Dr. M.K.Jain (PW-2), who was posted and on duty in District Hospital, Vidisha, had informed vide Ex.P/5 that on the said date at about 3.45 pm deceased Kusumbai had been brought dead by her husband Babulal (appellant). On this information merg report was registered at Merg No. 65/2006 and after investigation and recording -( 2 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP statements of the witnesses it was found that the present appellant Babulal @ Pattu had committed murder of his wife Kusumbai and, therefore, FIR (Ex.P/22) was registered at Crime No. 708/2006 by Police Station Kotwali, District Vidisha for the offences punishable under Sections 302, 498-A of IPC. It was gathered by the investigating officer during the course of investigation and recording statements of the witnesses that appellant-accused Babulal doubted his deceased wife's character and used to cause marpit with her. On the date of occurrence the appellant had beaten his wife in a closed room. This beating was witnessed by Rupali, daughter of appellant aged 7 years, who was present in the room. When deceased became unconscious due to the beating, the appellant-accused took her to the hospital where she was declared brought dead. From the place of occurrence two pieces of black coloured broken straps of watch, two toe rings of white colour, out of which one was broken, some pieces of broken bangles were seized and seizure memo (Ex. P/14) was prepared. Vide Ex.P/18 one watch of black dial, over which R-ROMEX-QUARTZ was written and belt whereof was broken from one side and belt of other side having black colour was attached with the watch, was seized. Dr. M.K.Jain (PW-2) including two other Dr.R.S.Sharma and Dr. Smt. Nirmala Tiwari, had conducted the post mortem of the dead body. According to the Post Mortem report (Ex P-6) the death of Kusumbai was homicidal in nature and had occurred on account of cardio respiratory arrest due to shock and internal traumatic hemorrhage as a result of multiple injuries on different parts of the body.
3. Consequently the police proceeded to file the chargesheet under sections 302, 498-A, 342 of IPC against the appellant and the learned Trial Court framed charge against the appellant for the -( 3 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP offence punishable under Section 302 of IPC.
4. The prosecution examined as many as 18 witnesses to establish its story, whereas defence did not choose to examine any witness, though the appellant-accused abjured his guilt. However the Trial Court arrived at the conclusion that the prosecution duly established its story and there is significant material available against the appellant which is sufficient to convict him for the offence punishable under Section 302 of IPC. Consequently vide the impugned judgment the appellant was held guilty and convicted under Section 302 of IPC, with punishment to undergo Rigorous Life imprisonment and fine of Rs.5000/-. Against his conviction, the appellant has preferred this appeal.
5. Learned counsel for the appellant argued that, there is no eye witness except PW-14 Rupali, who is a child witness aged about 7 years, on whose testimony alone the prosecution case rests. There is a lack of circumstantial evidence in the present case and the evidence given by PW-14 Rupali is not corroborated by any other independent witnesses. The evidence given by Rupali is very shaky and appears to be tutored. It is further argued that the witness of the seizure memo has turned hostile. The death occurred due to fall from the stairs. The last seen theory set up by the prosecution is of no help. The appellant-accused and his sister- in-law (Bhabhi) both took Kusumbai to the hospital just after the incident, which shows bonafide of the appellant. The appellant has not committed any offence otherwise he would not have shifted his wife to the hospital. The chain of circumstances under which the guilt can be upheld is also missing in the present case.
6. It is also submitted by learned counsel for the appellant that on the date of incident the appellant was not present at the place of incident. The seized weapon is a belan (rolling pin used in -( 4 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP kitchen), which is commonly available in every house, therefore no presumption can be drawn only on the basis of seized weapon against the present appellant. Hence, learned counsel for the appellant prays for allowing the appeal and for acquittal of the appellant from the aforesaid offence.
7. Learned Public Prosecutor appearing for the State has opposed the submissions put forth by learned counsel for the appellant and submitted that PW2- Dr. M.K.Jain has categorically stated in his statement that the death of the deceased is homicidal. She was having more than 20 anti-mortem injuries on her body. PW-2 has also specifically deposed that such type of injuries cannot be caused only by falling from the stairs. The testimony of child witness Rupali (PW-4) is unshakable and credible, who has specifically deposed that she is able to understand the questions put before her before deposing her statement. The broken pieces of bangles were seized from the place of incident, that is, the room of the appellant and deceased. It is fact that the appellant and his sister-in-law (Bhabhi) took the deceased to the hospital immediately after the incident but as soon as they reached hospital, they left the deceased at the hospital and went away. This conduct of the appellant smells of malafide. The prosecution has proved its case beyond reasonable doubt. Hence, no case for interference by this Court in the judgment of conviction is made out and prays for dismissal of the appeal.
8. We have heard learned counsel for the parties and perused the record.
9. The present case is based on following factual matrix :-
(i) PW14-Rupali is a child witness;
(ii) Prosecution case is solely dependent upon the statement given by PW14-Rupali.
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(iii) Prosecution has based its case on the previous and subsequent conduct of the appellant;
(iv) The case is also based on the circumstantial evidence, i.e., seizure of broken bangles from the place of incident, i.e., the room of the appellant and deceased.
10. The present case mainly depends upon the testimony of child witness, which requires thorough scrutiny of the evidence available on record.
11. India has adopted adversarial system used in the common law countries where two advocates advance their rival contentions or represent their position before a Judge, who analyzes it to determine the truth of the case and passes judgment accordingly. It is in contrast to the inquisitorial system, where a Judge investigates the case. It is well settled that no one can compel the accused to give evidence against him in a criminal adversarial proceeding, even he may not be questioned by the prosecutor or Judge unless he opts to do so.
12. Judges in an adversarial system are impartial in ensuring the fair play of due process or fundamental justice. In such system, the Judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted where there is a dispute. In an adversarial system if a dispute arises with regard to admission of evidence, it is always decided by the Judges. That means, the Judges play more of a role in deciding what evidence is to admit into the record or reject. It is true that improper application of judicial discretion may pave the way to a biased decision, rendering obsolete the judicial process in question. The rules of evidence are also developed based upon the system of objections of adversaries but the Presiding Officer/Judge of the -( 6 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP Court is having powers to ask questions whether relevant or irrelevant under Section 165 of the Indian Evidence Act, 1872, which is reproduced below:-
"165. Judge's power to put questions or order production. - The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved;
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
13. In Sidhartha Vashist v. State (NCT of Delhi), [AIR 2010 SC 2352], the Apex Court observed that the Judge cannot ask questions which may confuse, coerce or intimidate the witness. That means, the Judge should not sit in the Court as a silent spectator rather he should involve himself for quest of the truth under the provisions of law.
14. Section 118 of the Indian Evidence Act reads as follows:-
"118. Who may testify.-- All persons shall -( 7 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation . - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
From the aforesaid provision, it is clear that all persons shall be competent to testify before the Court subject to provisions made under Section 118 of the Indian Evidence Act.
15. Now in the present case the question required to be determined is as to whether the child can understand the nature of an oath; has sufficient capacity or intelligence to give reliable evidence; and, distinguish between what's right or wrong.
16. According to Blacks Law dictionary, 'a witness is one who sees, knows, or vouches for something or one who gives a testimony under oath or affirmation in person by oral or written deposition. A witness must be legally competent to testify.'
17. The Courts have made some reconciliation between taking oath before a Court and facing the consequences of breaching the same on the one hand and on the other hand, the competency of giving testimony before the Court. In the interest of justice, Courts have held that a child witness is competent to give evidence though it may not be permissible to administer oath before giving such evidence. It is, in this context, there are several rulings of the Supreme Court as to competency of a child witness and necessary precautions to be taken in sifting of evidence given by such a child witness. A reference to these decisions is relevant in the present case for the admissibility or desirability of a child witness's evidence.
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18. In Mohamed Sugal Esa v. The King [AIR 1946 P.C. 3], it has been held as under:
"Once there is admissible evidence a court can act upon it; corroboration, unless required by a statute, goes only to the weight and value of the evidence. It is a sound rule not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."
19. In Rameshwar vs. State of Rajasthan [AIR 1952 SC 54], the Apex Court held as under:
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
20. In The State and others vs. Dukhi Dei and others [AIR 1963 ORISSA 144], the Orissa High Court observed in paragraph 8 of the judgment as follows:
"8. The question therefore is whether the evidence of P.W.2 as an eye-witness is reliable for conviction of the appellants. No doubt the evidence of a child witness is to be taken with great caution. Normally evidence of Child witnesses should not be accepted as it is notoriously dangerous unless immediately available and unless narrated before any possibility of coaching is eliminated; there should be closer scrutiny of the evidence of child -( 9 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP witnesses before the same is accepted by a court of law."
21. In Arbind Singh v. State of Bihar [1995 (Supp) 4 SCC 416], in paragraph 3 of the judgment, the Apex Court observed as follows:
"3. ...... It is well-settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring......."
22. In Jibhau Vishnu Wagh vs. State of Maharashtra [1996 (1) CRI.L.J. 803], it was held in paragraph 15 of the judgment as follows:
"15. ....... He firstly urged that the prosecutrix was a young girl aged about 8 years and the learned trial Judge should have conducted her preliminary examination in order to ascertain in the level of understanding and only thereafter should have proceeded to record her statement. There can be no dispute that it would have been certainly better for the learned Judge to have first conducted a preliminary examination of the prosecutrix by putting some questions to her and on the basis of answers given by her in reply to them satisfied himself whether she was possessed of sufficient understanding. However, the failure to hold a preliminary examination of a child witness does not introduce a fatal infirmity in the evidence..............."
23. In Panchhi and others vs. State of UP [(1998) 7 SCC 177] in paragraphs 11 and 12, the Apex Court observed as follows:
"11. ...... 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 -( 10 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP 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.
12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law [Prakash v. State of MP (1992) 4 SCC 225 : (AIR 1993 SC 65)]; [Baby Kandayanathil v. State of Kerala, 1993 Suppl (3) SCC 667 : (1993 AIR SCW 2192)]; [Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 :
(1996 AIR SCW 1882)] and [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341]."
24. In Dhani alias Dhaneswar Naik vs. The State [1999 (3) CRI.L.J. 2712] in paragraph 6 it has been held as under:
"6. P.W.4 undoubtedly is a child of ten years at the time his examination was made. So far as acceptability of evidence of P.W.4 is concerned, undisputedly he was a minor boy at the time of alleged commission of offence and while deposing in Court. Under Section 118 of the Indian Evidence Act, 1872 (in short, Evidence Act) all persons are competent to testify unless the Court considers that because of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind they are prevented from understanding questions put to them, or from giving rational answers. All grounds of incompetency have been swept away by Section 118 under which competency of witnesses is the rule and their incompetency is the exception. Only incompetency that the section highlights is incompetency from premature or defective intellect. As to infancy, it is not so much the age as the capacity to understand which is the determining factor. No precise age-limit can be given, as persons of the same age differ in mental growth and their ability to understand questions and giving rational answers. The sole test is whether witness has sufficient intelligence to depose or whether he -( 11 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP can appreciate the duty of speaking truth. The general rule is that the capacity of the person offered as a witness is presumed, i.e. to exclude a witness on the ground of mental or moral capacity, the existence of the incapacity must be made to appear. Under Section 118, a child is competent to testify, if it can understand the questions put to it, and give rational answers thereto.........."
25. In Bhagwan Singh and others vs. State of MP [(2003) 3 SCC 21], the Apex Court observed as follows:
"19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony."
26. In Ratansingh Dalsukhbhai Nayak vs. State of Gujarat [(2004) 1 SCC 64], the Apex Court held in paragraph 7 as follows:
"7. ...... The decision on the question whether the child witness has sufficient intelligence primarily rests 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 erroneous. 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 -( 12 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it 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."
27. In Sakshi vs. Union of India and others [(2004) 5 SCC 518], the Apex Court took extra precaution in examining child witnesses before various forums especially in a criminal forum and it dealt with at length the desirability of recording certain statements in an atmosphere conducive for such recording. Paragraphs 27 and 28 of the judgment are extracted below:
"27. The other aspect which has been highlighted and needs consideration relates to providing protection to a victim of sexual abuse at the time of recording his statement in Court. The main suggestions made by the petitioner are for incorporating special provisions in child sexual abuse cases to the following effect :
(i) permitting use of a videotaped interview of the child's statement by the judge (in the presence of a child support person).
(ii) allow a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of.
(iii) The cross-examination of a minor should only be carried out by the judge based on written questions submitted by the defence upon perusal of the testimony of the minor.
(iv) Whenever a child is required to give testimony, sufficient breaks should be given as and when required by the child.
28. The Law Commission, in its response, did not accept the said request in view of Section -( 13 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP 273, Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice , cannot be done away in trials and inquiries concerning sexual offences. The Commission, however, observed that in an appropriate case it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused while at the same time provide an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his counsel for an effective cross- examination. The law Commission suggested that with a view to allay any apprehensions on this score, a proviso can be placed above the Explanation to Section 273 of the Criminal Procedure Code to the following effect:
"Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross- examination of the accused."
28. Regarding credibility of evidence of child witness, the Apex Court in Golla Yelugu Govindu v. State of A.P. [(2008) 16 SCC 769] in para 11 held as under:-
"11. The Evidence Act, 1872 (in short ''the Evidence Act'') does not prescribe any particular age as a 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 put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease--whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to -( 14 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP understand questions and give rational answers thereto."
29. From the aforementioned legal position, following factors must be considered at the time of recording of evidence of a child witness :-
(i) There is no disqualification for a child witness;
(ii) The Court must conduct a preliminary enquiry before allowing a child witness to be examined;
(iii) The Court must be satisfied about the mental capability of a child before giving evidence;
(iv) While sifting the evidence, the possibility of a bias or the child being tutored should be taken note of;
(v) The evidence of a child witness should be corroborated;
(vi) The child cannot be administered oath or affirmation and it is incompetent to do so;
(vii) The Court cannot allow a minor to make an affirmation;
30. In Ratan Singh Dalsukhbai Nayak (supra), it has also been observed as under:-
"The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same."
31. On the basis of above, the evidence of a child witness is not required to be discarded per se, but as a rule of prudence the Court can consider such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon.
32. All that is required in consideration of evidence of a child witness, if scanning it carefully and if after doing so it is found -( 15 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP that there is no infirmity or contradiction in the evidence of a child, there is no impediment in accepting the evidence of a child. Normally a Court should look for corroboration in such cases but that is more by way of caution and prudence than as a rule of law.
33. It is relevant to mention that the reliability of a child witness is very important in the cases of domestic violance and other offences, which take place within the four walls of a home, where no outsider may be present, a child can be very important witness, especially being the sole eye-witness. Furthermore, in cases where a child may not always be a natural witness, children tend to have a very strong memory and may actually paint a clear picture of the alleged scene of crime. There are probabilities of exaggeration, but here again the role of the Court is important.
34. In the present case, PW14- Rupali, who is a child witness, was present inside the room at the time of incident. Her presence was undisputed. As per FSL report, broken bangles were seized from the room, not from the staircase. PW14-Rupali has stated specifically about the incident. As she came along with her grandfather, therefore, in her statement some contradictions and omissions are there, but as a Judge the trial Court has specifically recorded the demeanor of the witness during deposition in para 4 that ";g dguk xyr gS fd ftl fnu esjh eEeh ejh] ml fnu eSa] esjs ikik vkSj esjh eEeh ,d gh dejs esa Fks ". The trial Court has recorded the demeanor of the witness as under:-
" lk{kh us mDr tokc jksrs&jksrs nh".
This demeanor shows that the witness was under
compulsion to state as guided by her family members. It confirms in her examination-in-chief "gkftj vnkyr vfHk;qDr dks ns[kdj lk{kh us crk;k& ;s mlds ikik gSaA esjs NksVs HkkbZ dk uke fo'kky gSA -( 16 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP fo'kky Hkh Ldwy tkrk gSA esjh eEeh dk uke dqlqe FkkA esjh eEeh ej xbZ gSA esjh eEeh dks cgqr fnu gks x, gSaA ml fnu vius Ldwy esa FkhA", and in para 5 of chief examination, she has stated that "ftl fnu esjh eEeh ejh] ml fnu eSa Ldwy ugha xbZ FkhA ml fnu eSa ?kj ij gh FkhA".
35. The trial Court besides recording demeanor of the child witness has also put relevant questions to check reliability, credibility, understanding and competence of the child witness. The Trial Judge has also participated using Section 165 of the Indian Evidence Act and exercised the jurisdiction vested in it. It reflects that despite the adversarial judicial system, the Trial Judge got himself involved in judicious manner to find the truth of the case. Looking to the prevailing social conditions it is expected from every Judge of the Court of facts that while recording evidence the Judge concerned should take reasonable part exercising the jurisdiction vested in it under Section 165 of the Indian Evidence Act. The Court of fact is the Court which prepares foundation of a case by recording of evidence which is deposed before him and the evidence so recorded is the heart and soul of the case, which culminates into the route to impart justice and find truth and ultimate justice. It is also relevant to mention here that under Section 165 of the Indian Evidence Act, any question which is asked by the Presiding Officer of the Court will not be put to cross-examine the witness unless the Judge permits. That means, it is the ultimate jurisdiction of a Judge, which should positively be exercised as and when required in the case to meet the ends of justice.
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36. The Hon'ble Apex Court in State of U.P. Versus Krishna Master reported in [(2010) 12 SCC 324] in paras 15 and 17 has observed as under:-
"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really -( 18 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."
37. PW13-Prakash Lodhi, who is brother of the deceased, has stated in para 26 of his cross-examination that broken bangles were scattered in the room. In para 3 he has stated that "nlosa eghus] 2006 dh 4 rkjh[k dh ?kVuk gSA eSa lokjh ysdj cl LVS.M] fofn'kk x;k FkkA eq>s esjs ekek ds yM+ds euh"k us eksckbZy ij Qksu yxkdj crk;k Fkk fd& dqlqe nhnh vLirky esa HkrhZ gSa] rqe tYnh vLirky pys tkvksA eSa bl lwpuk ij esjs nksLr ds lkFk 'ksjiqjk esjh eEeh ds ?kj x;k] ogkW ij eSaus ekeh ls iwNk rks ekeh us crk;k vHkh iV~Vw rhu cts yxHkx ?kj vk;k Fkk vkSj mlus crk;k Fkk fd dqlqe dh rch;r [kjkc gS vkSj og vLirky esa gSA ekeh dh bruh ckr lqudj eSa ljdkjh vLirky fofn'kk x;k] ml le; esjs lkFk esa esjk nksLr thrsUnz FkkA eSausa vLirky esa ogkW ds deZpkjh ls iwNk vkSj esjh cfgu dk uke dqlqe ckbZ crk;k] rc mlus crk;k Fkk fd gkW ,d is'ksUV vk;k Fkk] bl uke dk vkSj mldh tsBkuh lkFk esa vk;h Fkh vkSj dqlqe ckbZ ds ifr iV~Vw mQZ ckcwyky vkjksih Hkh lkFk es vk;s Fks vkSj mlus crk;k fd& ml efgyk dh tsBkuh vkSj ifr iV~Vw nksuksa NksM+ dj Hkkx x, gSa A eSaus iwNk fd is'ksUV dgkW ij gS rks mlus crk;k ds ejpqjh :e esa j[kk gSA fQj eS lh/kk dksrokyh pyk x;k vkSj dksrokyh esa ?kVuk dh [kcj nh---------------* * . That means, this witness says that accused and his sister-in-law took Kusumbai to the hospital and thereafter ran away from the hospital as soon as they were informed that Kusumbai is dead.
38. PW6-Rani, who is the sister-in-law of the accused, has denied in her statement that the accused was also present at the time when she took Kusumbai to hospital, rather she stated that she and Rajbai, her sister-in-law (Devrani) took Kusumbai to the -( 19 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP hospital. The defence has not offered any explanation for leaving the deceased at the hospital just immediately after reaching the hospital without getting the deceased admitted or investigated. They left the body of the deceased alone in the hospital. This res geste also shows committal of offence by the accused.
39. In Gentela Vijayavardhan Rao v. State of AP [(1996) 6 SCC 241], the Apex Court in para 15 held as under:-
"15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447] thus:
"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the -( 20 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement."
40. In Sukhar v. State of U.P. [(1999) 9 SCC 507], the Apex Court in paras 6 and 10 held as under:
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:
"Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued."-( 21 )- CRA No. 702/2008
Pattu @ Babulal vs. State of MP
41. PW2-Dr. M.K.Jain, Medical Officer, has stated in his statement that he conducted the post-mortem of deceased Kusumbai W/o Babulal Lodhi on 5.10.2006 along with Dr. R.S. Sharma and Dr. (Smt.) Nirmala Tiwari and he found more than 20 anti-mortem injuries over the body of the deceased and most of them were caused on vital parts. The body of the deceased was identified by Prakash S/o Prem Singh and Satyanarayan S/o Parmanand. According to the evidence of Dr. M.K.Jain (PW-2) as per post-mortem report conducted on 5.10.2006, he found following anti-mortem injuries on the body of the deceased Kusumbai :-
(i) Contusion on left side of occipital region, size 15cm x 8cm;
(ii) Contusion over back side of neck, size 8cm x 5cm;
(iii) Contusion over left side of neck, size 25cm x 5cm;
(iv) Contusion on the back, upper side, middle and beneath the scapula on both sides;
(v) Contusion on left upper forearm;
(vi) Contusion on left forearm, size 25cm x 5cm;
(vii) Contusion over left wrist and palm, size 10cm x 5cm;
(viii) Contusion over right palm , size 12cm x 6cm;
(ix) Contusion over on upper side of right forearm, size 21cm x 6cm;
(x) Contusion on right side of arm, size 35cm x 10cm;
(xi) Contusion over left and right loin, size 40cm x 10cm;
(xii) Contusion over left buttock, size 35cm x 10cm;
(xiii) Contusion over left thigh, size 50cm x 8cm;
(xiv) Contusion over right buttock, size 30cm x 8cm;
(xv) Contusion over right thigh, size 40cm x 8cm; (xvi) Contusion on left leg anterior-lateral, size 12cm x 4cm;
(xvii) Contusion on right leg anterior-lateral, size -( 22 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP 12cm x 4cm;
(xviii)Contusion over right foot, size 15cm x 5cm; (xix) Contusion over left foot, size 18cm x 6cm; (xx) Abrasion on left leg near ankle, size 2cm x 1cm;
(xxi) Lacerated Wound on second left toe , size 1cm x .5 cm;
(xxii) Multiple Contusions over left forehead covering the size of 8cm x 4cm;
In the opinion of Dr. M.K.Jain, the cause of death was cardio respiratory arrest which was caused due to aforementioned anti-mortem injuries and due to excessive bleeding and head injury. The death was homicidal in nature. He has specifically stated in his cross-examination that if any person falls and rotates accidentally, no such injuries could be caused. He has denied that the injuries caused were accidental injuries.
42. Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing :
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death; or
(iii) an act with the knowledge that it is was likely to cause death.
Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. 'Intent and knowledge' as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence. The knowledge of third condition -( 23 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions 'intent' and 'knowledge' postulate the existence of a positive mental attitude which is of different degrees.
43. There are three species of mens rea in culpable homicide. First, an intention to cause death; second, an intention to cause a dangerous injury; third, knowledge that death is likely to happen. The act is said to cause death when death results either from the act directly or results from some consequence necessarily or naturally flowing from such act and reasonably contemplated as its result. The offence is complete as soon as any person is killed.
44. Now, while determining whether it is culpable homicide or murder, the Court has to keep in focus key words used in Sections 299 and 300 of the I.P.C. It is degree of probability of death which determins whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in Section 299 conveys the sense of probable as distinguished from a mere possibility. Words used in Section 299 'that bodily injury sufficient in the ordinary course of nature to cause death' indicates that death is most probable result of the injury. Where bodily injury sufficient to cause death, is actually caused, it is immaterial to go into the question as to whether the accused had intention to cause death or knowledge that the act will cause death.
-( 24 )- CRA No. 702/2008Pattu @ Babulal vs. State of MP
45. In the present case the accused had caused more than 20 injuries over the body of the deceased and Dr. M.K.Jain (PW-2) has deposed that all the injuries were anti-mortem. The appellant/accused had inflicted some of the injuries on vital parts of the body of the deceased, which were found to be sufficient in the ordinary course of nature to cause death and immediately after the incident the deceased died as soon as she was brought to the hospital. Dr. Jain has also stated that the death was homicidal. Hence, inference can be drawn against the appellant/accused. It also reflects the knowledge and intention of the accused to cause death. In the present case, the accused had deliberately caused injuries with belan on different vital parts of the deceased's body and the injuries caused were sufficient in the ordinary course of nature to cause death. Therefore, the case of the appellant/accused did not fall under any of the exceptions in Section 300 of the IPC. Dr. M.K.Jain (PW-2) has specifically mentioned in post-mortem report (Ex.P/6) that cardio respiratory arrest was due to injuries caused on the body of the deceased. The prosecution witnesses have also deposed that the appellant/accused had beaten his wife on many occasions since he doubted the character of the deceased. In these circumstances, the act done and the consequence thereof being death of the deceased also shows the mens rea/intention to cause death of the deceased. Therefore, in the aforesaid facts and circumstances of the case, it cannot be said that the act done by the appellant/accused comes under the exception of Section 300 of the IPC as the act of inflicting more than 20 injuries due to which death is caused, is done with the intention of causing death and it is apparent from the prosecution evidence that the injuries caused were sufficient in ordinary course of nature to cause death. Hence, the act done by the accused/appellant comes within the purview of -( 25 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP Section 300 of the IPC, i.e., the murder which is punishable under Section 302 of the IPC. Thus, the prosecution has established beyond doubt that the bodily injuries found on the body of the deceased were intentionally inflicted by the appellant/accused and were sufficient to cause death in the ordinary course of nature.
46. PW4- Vinod Shrivastava, Scientific Officer, has stated that on 4.10.2006 he had inspected the house of Babulal Lodhi where he found pieces of broken bangles as shown in the map at 'A-1' and he had seized the broken bangles and prepared the map of the room.
47. PW1-Satyanarayan is elder brother of the accused. PW6- Rani is sister-in-law of the accused while PW7-Parmanand is father of accused and all three have not supported the prosecution case. Looking to the close relationship of these witnesses with the accused, their testimony cannot be read in favour of the appellant.
48. From above, it is apparent that statement of Rupali (PW-14) is corroborated by medical evidence of Dr. M.K.Jain (PW-2) and seizure of broken bangles from the room is proved. No specific evidence is available on record to show that the deceased had fallen from the staircase. Dr. M.K.Jain (PW-2) has specifically denied that injuries found over the body of the deceased could occur accidentally or as a result of falling from the staircase. The injuries caused were anti-mortem and the reason of death is cardio respiratory arrest due to anti-mortem head injury and other injuries caused to the deceased on vital parts of her body. The doctor has categorised the death as homicidal in nature. The evidence of PW- 14 Rupali is reliable and credible and the Trial Judge has recorded the demeanor of witness Rupali during her deposition, which specifically proves the case of prosecution beyond reasonable doubt. The manner in which Rupali (PW-14) had deposed before -( 26 )- CRA No. 702/2008 Pattu @ Babulal vs. State of MP the trial Court appears to be natural. Before recording of evidence of Rupali, the trial Court had put questions to PW14-Rupali to check and verify the power of credibility/reliability of the witness, thereafter the trial Court recorded the evidence of Rupali. In reply to the questions put to Rupali, she answered them correctly, which shows her competence, understanding, credibility and reliability. Therefore, the trial Court has not erred in relying upon the evidence of PW14-Rupali.
49. In the light of the foregoing discussion, we are of the considered opinion that the trial Court has properly and legally analyzed and appreciated the entire evidence available on record and did not err in convicting and sentencing the present appellant. The appeal filed by the appellant appears to be devoid of any substance.
50. Consequently, the appeal filed by appellant-Pattu @ Babulal against his above-mentioned conviction and sentence as recorded by the trial Court is dismissed and his conviction and sentence are affirmed. Appellant-Pattu @ Babulal is in jail. He be intimated with the result of this appeal through relating Jail Superintendent.
With a copy of this judgment record of the trial Court be sent back immediately.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2019.09.23
10:53:11 +05'30'