Madhya Pradesh High Court
The State Of M.P. vs Ravi Kumar Singh on 4 September, 2012
Author: T.K. Kaushal
Bench: T.K. Kaushal
1
Cr.A No. 491/1994
Cr. A No. 1190/1996
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K. KAUSHAL
CRIMINAL APPEAL NO. 491 OF 1994
APPELLANT: State of Madhya Pradesh
Vs
RESPONDENT: Ravikumar Singh Malhotra,
S/o Yadunath Singh,
aged about 38 years,
Chartered Accountant,
R/o 120/808, Lajpat Nagar, Kanpur (U.P)
CRIMINAL APPEAL NO. 1190 OF 1996
APPELLANT: State of Madhya Pradesh
Vs
RESPONDENT: Ravikumar Singh Malhotra,
S/o Yadunath Singh,
aged about 38 years,
Chartered Accountant,
R/o 120/808, Lajpat Nagar, Kanpur (U.P)
******************************************************************
For appellant/State : Smt. Nirmala Nayak, Govt. Advocate with Shri Amit Pandey, Panel Lawyer For Respondent : Shri Jagat Sher Singh, Advocate with Shri A.K. Dubey, Advocate ****************************************************************** Date of hearing : 04/09/2012 Date of judgment: /10/2012 This judgment shall govern the disposal of both the above appeals. Both of the above State appeals have been directed against the judgment dated 14/12/1993 passed by Additional Sessions Judge, Panna in Sessions Trial No. 2 Cr.A No. 491/1994 Cr. A No. 1190/1996 86/1991 acquitting the respondent/accused of the charge under sections 302 and 201 IPC for committing murder of his wife Sushma (since deceased) and for destroying evidence thereof.
2. Facts of the case, in short, are that on 26/09/1989 in Bhairavdev ghati of District Panna Mohd. Naeemuddin, a Truck Driver (PW-31) saw Abhinav, aged 5 years (PW-28) crying and wandering on the road in naked condition. PW-31 brought the boy PW-28 to the hut of Naga Baba (PW-7). PW-28 was then taken to police station Mandla, District-Panna. On 26/09/1989 about 6.00 pm dead body of deceased Sushma alongwith dead body of her another son aged 2 years viz. Shashank was also found lying at some distance from the road side in the forest. Dead bodies were in decomposed condition.
3. According to prosecution, deceased was living as second wife of respondent/accused, a Chartered Accountant, along with her two sons i.e. Shashank, aged 2 years (since deceased) and Abhinav, aged 5 years (PW-28) in a rented house of Neeraj Kohli (PW-22) situated in Sarojini Nagar, Kanpur. PW-28 was studying in Bona-Bista School, Kanpur. After about 6 years of their married life, deceased agreed to live, separate along with two children, in a rented house and respondent, as usual, started living with his parents, first wife and other family members in different locality in Kanpur. Respondent with the help of absconding co-accused arranged a trip with the deceased and children to Khajuraho. With a view to execute the plan, they took the deceased and children in a truck 3 Cr.A No. 491/1994 Cr. A No. 1190/1996 towards from Khajuraho to Bhairavdev ghati and committed murder of the deceased by strangulation with the help of a rope and also killed Shashank. He also tried to kill Abhinav (PW-28) and thereafter carried all of them to forest in lonely place. For disposal of their bodies, he poured acid on them. Fortunately, PW-28 survived and next day morning came on the road and was found by PW-31. Police Mandla District- Panna on 28/09/1989 sent dead body of deceased as an unknown lady to District Hospital Panna. Dr. O.P. More (PW-
1) conducted postmortem of the body and prepared postmortem report Ex.P-1. Dead body was in the advance stage of decomposition. Age of the deceased was found to be about 30 years, her viscera was preserved. However, no definite opinion about cause of death was given.
4. On the basis of information given by Naga Baba (PW-7) marg was registered for the death of boy aged about 3 years, whose dead body was found in the forest and on searching the spot further, dead body of deceased lady was also found and another marg proceeding was registered. Abhinav (PW-28), after a day became able to disclose his own identity, his name and name of family members etc. to police. For ascertaining the information given by PW-28, Rajeev Singh Bhadoria (PW-
21) went to Kanpur at his school and residence. Thereafter he registered 2 cases, at Crime No. 22/1989 (Ex.P-44) and Crime No. 23/1989 (Ex.P-45). During investigation, from rented house of deceased at Kanpur, Rent Note Ex.P-5 was obtained. This rent note had been executed by the respondent for providing residence to the deceased. From school of PW-28, educational record was recovered wherein respondent was 4 Cr.A No. 491/1994 Cr. A No. 1190/1996 shown as father of PW-28. Police tried to search respondent/accused, at his office and residence, but finding him absconded initiated the proceeding against him. After a period of about 6 months i.e on 08/03/1990, respondent was arrested.
5. During investigation, clothes and other articles found near the body of the deceased persons got identified by sister of the deceased Smt. Meera Rangwani (PW-32). Photographs of deceased and her children were seized from her residence at Kanpur. School record regarding payment of fees etc was obtained as her link with the respondent/accused. Statement of Ramswaroop Soni, Hotel owner of Khajuraho (PW-2) was recorded. Similarly statements of neighbours of the house of deceased at Kanpur were recorded for showing relationship of the respondent with the deceased. Report of Handwriting expert was obtained to compare the writing of the respondent with the letter submitted by him in the school of PW-28.
6. Charge sheet under Section 302 IPC on two counts under Section 201 and under Section 307, was submitted by police Mandla, District-Panna, against the respondent in the court of concerned judicial magistrate citing PW-28 as injured eyewitness and documentary circumstantial evidence in respect of relations, conduct and motive of the respondent for the incident. Case was committed to the court of sessions for trial. However, trial Court framed charges in respect of death of the deceased only under Section 302 and 201 IPC against the respondent. Respondent abjured guilt and pleaded innocence stating that for last more than about 1 year of the 5 Cr.A No. 491/1994 Cr. A No. 1190/1996 incident, he had practically no relations with the deceased whatsoever. He pleaded false implication in this case on suspicion and imagination of the prosecution.
7. To substantiate case of the prosecution, statements of Dr. O.P. More (PW-1), Ram Swaroop Soni (PW-2), Shankarlal (PW-3), Bahadur Singh (PW-4), Maharaj Singh (PW-5), Dr. Anju (PW-6), Naga Baba (PW-7), Dharam Singh (PW-8), Shiv Prasad Arajaria (PW-9), Ajmat Ulla (PW-10), L.S. Mishra, SHO, Mandla (PW-11), Thakur Prasad, Patwari (PW-12), Jugla (PW-
13), Kalika Prasad (PW-14), Vishwanath (PW-15), Dr. Ashok Tiwari (PW-16), Shadilal (PW-17), Vipin Gosai (PW-18), Kailash (PW-19), Dr. D.K. Jain (PW-20), Rajeev Singh Bhadoria, S.I (PW-21), Neeraj Kohli (PW-22), Sudarshan Kumar Agrawal (PW-23), Vijay Arora (PW-24), Bachchu (PW-25), R.S. Rajput, SHO (PW-26) Shiv Prasad, Head Constable (PW-27), Abhinav, injured eyewitness (PW-28), Munni Lal Ahirwar (PW-29), Mahadev, uncle of the deceased (PW-30), Mohd. Naeemuddin, Truck driver (PW-31), Smt. Meera Rangwani, sister of the deceased (PW-32), Smt. Veena Rangwani, niece of the deceased (PW-33) and Kishan Kumar Shekhchandani, brother of the deceased (PW-34) were recorded. After appreciating the aforesaid evidence and having disbelieved the testimony of Abhinav, injured child eyewitness (PW-28), learned Trial Judge extended benefit of doubt and acquitted the respondent of the charges.
8. These appeals have been filed by the State assailing the impugned judgment on the ground that Trial Court failed to appreciate the evidence of prosecution in correct manner.
6 Cr.A No. 491/1994 Cr. A No. 1190/1996Material evidence regarding circumstances have been grossly ignored by the trial court. Evidence of child witness has not been appreciated properly. Finding of acquittal has been given in utter disregard of evidence available on record and is against the settled principles of law. Such findings are perverse and require re-appreciation and interference.
9. On the other hand, learned counsel for the respondent/accused submitted that trial court has rightly appreciated evidence. Most of the material witnesses did not support the prosecution in the trial court and were declared hostile. Evidence of PW-28 is full of suspicion and shaky. Prosecution witnesses failed to prove the case against the respondent, so the same has been rightly observed and held by the trial court. At this stage also presumption of innocence of the respondent will prevail and finding of the trial court cannot and should not be disturbed.
10. This Court is very much conscious and aware about the scope of re-appreciation of evidence in State appeals filed against the acquittal. Such findings are not to be unsettled in normal course unless findings of trial court has been given in absence of the evidence and findings are perverse and grossly wrong causing grave injustice. We are also aware of the fact that there is presumption of innocence prevailing in favour of respondent/accused. At the same time, it has also to be ensured that due weightage is given to circumstantial evidence, in view of the facts and circumstances of the case in hand.
7 Cr.A No. 491/1994 Cr. A No. 1190/199611. In para 26 and 27, Apex Court in 2012 Cri. L. J. 3005 (Jugendra Singh v. State of U.P.) has observed that-
"26. In Chandrappa v. State of Karnataka[16], this Court held as under: -
"42 From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every 8 Cr.A No. 491/1994 Cr. A No. 1190/1996 person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
27. In S. Ganesan v. Rama Raghuraman and others, one of us (Dr. B.S. Chauhan,J.), after referring to the decision in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court, particularly in Balak Ram v. State of U.P., Budh Singh v. State of U.P., Rama Krishna v. S. Rami Reddy, Aruvelu v. State and Babu v. State of Kerala, held that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. Similar view has been reiterated in Ranjitham v.
Basvaraj and others and State of Rajasthan v. Shera Ram @ Vishnu Dutta."
12. Dead body of the deceased was recovered from the forest in decomposed condition and was sent to hospital for postmortem. Police prepared Naksha Panchayatnama of the dead body Ex.P-37 in presence of witnesses and from dead body of the deceased kangan, tops, salwar-kurti, hair etc were seized along with viscera of the deceased were preserved by the doctor. Smt. Meera Rangawani (PW-32) also stated that her sister (deceased) was heard to be dead and she did not see her last about 3-4 years.
9 Cr.A No. 491/1994 Cr. A No. 1190/199613. According to PW-28, dead bodies of his brother and mother were found near the place of occurrence. Shankarlal (PW-3), Jugla (PW-13), Kalika Prasad (PW-14), Vishwanath (PW-15) and Bachchu (PW-25) were panch witnesses of the inquest proceedings and Naksha Panchayatnama of the dead bodies of deceased and her son, aged 3 years. Rajeev Singh Bhadoria, S.I (PW-21) also endorsed the fact of preparation of Naksha Panchayatnama of dead bodies and about sending of the dead bodies for the postmortem. In view of the aforesaid, it can safely be held established that dead bodies in question were that of deceased Sushma and Shashank only and they died of homicidal death.
14. Before appreciating the evidence of child witness PW-28, it would be proper to look at the evidence of Mohd. Naeemuddin, Truck Driver (PW-31) who was taking Truck No. MP.F.7079 from Panwadhi to Maihar. At about 7.00 am, he saw a naked boy, aged 4-5 years, standing on the road side, who tried to give signal by hands to stop the vehicle. He saw some abrasions and injuries on the stomach of the boy. Boy appeared to be panic stricken and was not speaking anything. He handed over the boy to Naga Baba (PW-7) and also gave his own address to him.
15. Naga Baba (PW-7) after receiving custody of the injured boy from Mohd. Naeemuddin, Truck Driver (PW-31), took him to police station-Mandla. Concerned police officials gave priority to the treatment of child, thereafter started proceedings. While PW-7 took the boy to the police station- Mandla, police recorded its entry at Sanha No. 606 (Ex.P-33) 10 Cr.A No. 491/1994 Cr. A No. 1190/1996 having a mention that boy was found in the forest by truck driver and boy was not able to give his name also. Police permitted PW-7 to keep that boy one day more with him. When PW-7 fed the boy some edibles, thereafter child became fit for saying something. Police officials also made efforts that child may speak something relevant. According to PW-7, child could speak his name, his father's name and about his residence.
16. In aforesaid backdrop, evidence of PW-28 has to be appreciated. PW-28 was a boy, aged about 5 years residing at Kanpur and was found on road side in forest in nude condition. Obviously, in the beginning he was in panic and was not able to say anything. After eating something and by passage of time, he could become normal and able to speak and express to PW-7 and to police. The boy was given in custody of some police official to keep him with his own family. After about two weeks, police produced the boy in the court of magistrate for recording his statement under section 164 Cr.P.C.
17. On 26/09/1989 PW-28's statement (Ex.P-6) was recorded by Investigating Officer PW-21. Thereafter on 20/10/1989 statement of PW-28 (Ex.P-66) was recorded by Judicial Magistrate First Class Ajaygarh under section 164 Cr.P.C. During trial his statement was recorded on 4 th October, 1993 as PW-28. At the time of incident boy was of 4- 5 years of age and at the time of recording of court statement he was of about 8 years age.
11 Cr.A No. 491/1994 Cr. A No. 1190/199618. On careful perusal of statement of PW-28, it is evident that boy was able to say his name, his identity, names of his family members. PW-28 was a student of Kg-I studying in Bona-Bista School, Kanpur. It is pertinent to note that it was the same boy, who gave the information firstly regarding his own identity and then identity of the deceased persons. Further he became able to disclose about his place of residence and place of study in Kanpur also. His clues and leads proved true while PW-21 went to Kanpur at the same place of residence and school as told by PW-28. Meaning thereby child was able to understand the questions and capable of giving the replies also. In para 49 of the judgment, Trial court has branded the boy with a "rattu tota". In above backdrop, it is totally unwarranted, undesired and is against the fact situation of the case. Trial Court failed to appreciate the peculiar situation in which boy was found hundreds kilometres away from his residence alone and had seen murder of his mother and brother. Approach of trial court thus in this regard is totally perverse.
19. On careful perusal of statement of PW-28 given in the court, it is apparent that for a considerable period prior to the date of Court statement, he lived with family of a police official. They, admittedly, had no enmity or illwill against the respondent. Rather they extended help to abandoned child. On all the three occasions i.e before police in Ex.P-6, before Magistrate in Ex.P-66 and in court statement before the Sessions Judge, child told his name and other details correct. He clearly stated that respondent came with deceased, with him and his brother from Kanpur to Khajuraho and then to 12 Cr.A No. 491/1994 Cr. A No. 1190/1996 Bhairavdevghati in the night. He saw the strangulation of his mother done by his father with the help of rope. He narrated activities done with him also by his father in court statement.
20. In so far as appreciation of evidence of child witness is concerned, Apex Court in 2012 Cr. L.J. 3363 (Alagupandi alias Alagupandian v. State of Tamil Nadu) in para 23 has observed that-
"The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (Ref. Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] and Panchhi v. State of U.P. [(1998) 7 SCC 177]."
21. It is submitted by learned counsel for the respondent that child witness has improved his version in trial court as from his earlier statement Ex.P-6 and such improved version cannot be believed. It is pertinent to note that each and every contradiction and omission is not material. It is matter of time also, contradictions and omissions are material only when these are leading towards falsehood. With a view to explain a thing in a better way if something new is added then such contradiction cannot be said to be material. Discrepancies, 13 Cr.A No. 491/1994 Cr. A No. 1190/1996 contradictions and omissions in the evidence of a witness should be evaluated with a balanced approach in right perspective, the Apex Court, in this regard, in AIR 1983 SC 753 (Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat) in para 5 observed as follows:-
"Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation.
And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or 14 Cr.A No. 491/1994 Cr. A No. 1190/1996 mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.
22. PW-28 was subjected to a very lengthy cross examination by a senior seasoned counsel of the respondent in the trial court. But there appeared nothing to indicate that this witness improved to speak false making himself liable to be treated as a tutored witness or stated the version suggested by somebody. PW-28 responded each and every question to the best of his understanding according to his age and maturity. In Ex.P-6, Ex.P-66 and the court statement the difference appeared on account of time only. Expressions of a child of 5 years and that of a child of 8 years are bound to be different, but PW-28 consistently and through out stated what he saw on the spot. Though this witness was aged only 4-5 years at the time of occurrence but was able to say about his identity to that extent so that police could reach at his residence at Kanpur from the town of Panna. His that much of 15 Cr.A No. 491/1994 Cr. A No. 1190/1996 understanding should have been appreciated by the court. Trial court in para 15 in the impugned judgment in this regard, thus, a gave totally incorrect and perverse finding.
23. With a view to refresh the memory of a witness if something has been suggested by prosecution prior to examination of witness is one thing and to tutor a child witness to narrate a particular set of story is quite another thing. If a child could give correct address to take police to his residence and to his school then his understanding and expression could not have been misunderstood or questioned, about what he saw in the night during the incident.
24. A child of 4-5 years is expected to be very much attached to his father, mother and brother. PW-28 stated in respect of three members what he saw in the night in the incident. Such type of child witness, at the most, may be put to requirement of corroboration only. It does not mean that he is not capable of giving evidence. Corroboration is not a rule of law, but by way of abundant precaution and as a matter of prudence, court may seek corroboration in such a matter to rule out the possibility of mixing of the fact with the imagination in the version of child given in the court.
25. In respect of evidence of relations and relationship between the deceased wife and the respondent, statement of Shadilal of Kanpur (PW-17) is worth mentioning. Rent Note Ex.P-5 was executed between him and the respondent for tenancy of a 2 room flat meant for residence of the deceased. Reminders of rent dues had been sent to the respondent in 16 Cr.A No. 491/1994 Cr. A No. 1190/1996 case of default made by the deceased. According to PW-17, respondent and deceased entered in love marriage and deceased begot two children from the respondent.
26. Vijay Arora (PW-24) is the son of Shadilal (PW-17). PW- 24 corroborated the evidence of rent note. Neeraj Kohli of Kanpur (PW-22) was another Landlord of the deceased and the respondent, for a house situated in Sarojini Nagar, Kanpur prior to residing in the house of Shadilal (PW-17). Vipin Gosai (PW-18) and Sudarshan Kumar Agrawal (PW-23) were neighbours of the rented house of deceased at Kanpur. Evidence of these witnesses is sufficient to establish that respondent lived like a husband with the deceased. They had two children i.e. PW-28 and deceased Shashank.
27. In reply to question no.20 of statement of accused recorded under section 313 Cr.P.C, respondent stated that he and deceased agreed in the year 1988 to live separately. Relationship between him and the deceased remained no longer disputed. Paternity of PW-28 also did not remain a matter of controversy. At the most it can be inferred that later for some time, there had been lack of regular visits of the respondent to the house of the deceased. In such a back drop, the evidence of child witness stands further corroborated with the circumstance that respondent came with the deceased and him from Kanpur to Khajuraho and then to Panna. Child witness (PW-28) had no reason to state these things false, particularly regarding trip in which he lost his mother also.
17 Cr.A No. 491/1994 Cr. A No. 1190/199628. Evidence of Kailash (PW-19), the peon of Bona-Bista School, Kanpur is material and is indicative of the fact that Abhinav (PW-28) was the son of the respondent, and was a student of KG-I in that school. Though he has been declared hostile, but his statement remains reliable and relevant in respect of relationship between the parties.
29. Trial Court failed to give due weightage to the circumstances of relations and relationship of the respondent with the deceased. Such circumstances played a vital role to establish a link. It should have been viewed in totality of facts and circumstances of the case. Merely by counting faults and defects in each and every evidence, ultimate and total effect of entire evidence cannot be ignored or overlooked.
30. In respect of another circumstance of subsequent conduct of the respondent, L.S. Mishra, the then SHO, Mandla (PW-11) stated that vide Ex.P-9 on 08/03/1990 he arrested the respondent and on the basis of information furnished by him prepared memorandum Ex.P-6. Though it was not signed by the respondent. Rajeev Singh Badoria, S.I (PW-21) in Para 15 of his statement said that on 30/09/1989 he along with Landlord of the house of deceased went to Kanpur and searched the respondent in his house there. But he did not find the respondent at his house. PW-21 met to the wife and brother of respondent at his residence at Kanpur and kept on waiting for the respondent for quite some time. For next 6 months, respondent did not take care of his 5 years old son. He also did not bother that he had lost his wife and his another son too.
18 Cr.A No. 491/1994 Cr. A No. 1190/199631. On the contrary in statement of respondent/accused under section 313 Cr.P.C what has been stated is that in the month of September, 1989, he scheduled a visit of India trip including Vaishnodevi Yatra and of places like Delhi, Jammu, Agra, Mumbai, Goa, Shirdi etc. On 09/02/1990, while police took his brother to police station, he came to know that a false case had been initiated against him and then he himself appeared before the police. Conduct of tendering a false explanation is again very material circumstance showing the guilty mind of the respondent. In para 65 of the judgment, Trial Court believed aforesaid explanation of the accused to be true. This, in our opinion, was palpably wrong on the part of trial court. Evidence of PW-21 should have been given proper weightage as compared to statement of accused recorded under section 313 Cr.P.C. as he, apparently had no grudge or bias against the accused.
32. PW-28 was found to have sustained some injuries, may be due to monkey bite. In so far as version about injuries caused due to acid burn is concerned, initially its possibility was opined by the doctor, but he denied in the trial court. As such this part of the testimony of PW-28 deserves to be ignored. For rest of the incident he has categorically narrated the incident in the court, which inspires confidence. Natural and reliable evidence of child witness has been disbelieved by the trial court on flimsy and baseless grounds. The Apex Court in AIR 2009 SC (Supp) 2622 (Perla Samasekhara Reddy & ors Vs. State of A.P) in Para 37 has observed:-
"37. Doubts would be called reasonable if they are free from a zest for abstract 19 Cr.A No. 491/1994 Cr. A No. 1190/1996 speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
33. As discussed above, what we find established from the prosecution evidence is that -
(i) Abhinav, injured child witness aged about 5 years (PW-28) was found in a forest on road hundreds kilometres away from his house of Kanpur. On the basis of clues and leads given by Abhinav (PW-28), the Investigating Officer (PW-21) reached to his school and to the house of the respondent in Kanpur.
(ii) He had no occasion and reason to be tutored or to speak false against his father (respondent) in Ex.P- 6, Ex. P-66 and in court as well, about his mother and brother.
(iii) As corroboration, evidence of motive against the respondent is available that he wanted to get rid of the deceased, his second wife;
(iv) Another circumstance against the respondent is his subsequent suspicious conduct. Investigating Officer PW/21 met with his first wife, brother and other family members in Kanpur three days after 20 Cr.A No. 491/1994 Cr. A No. 1190/1996 the incident. Even then for a period of 6 months, the respondent did not bother to take care of his sons and deceased wife. At the same time, the respondent offered false explanation for this absence in his statement in Court under Section 313 Cr. P.C.
34. Trial court utterly failed to give due weightage to the aforesaid established circumstances and to the evidence of Abhinav (PW-28) whose presence at the spot was established. Trial Court extended undue and unreasonable benefit of doubt to the respondent. Appreciation of the evidence of Abhinav (PW-28) and findings of the trial court in this regard are not only incorrect but are perverse also.
35. With the circumstances of motive and suspicious conduct of the respondent, evidence of PW-28 is wholly reliable. Trial court committed error in discarding the aforesaid evidence and failed to reach irresistible conclusion of the guilt of the respondent.
36. From the sequence of events as narrated by Mohd. Naeemuddin, Truck Driver (PW-31), who found the child on a road side all alone, Naga Baba (PW-7) who received custody of child and consoled him and gave him some food etc. and had taken him to police station and Rajeev Singh Bhadoria, SI (PW-21) who recorded the statement Ex.P-6 on 29/09/1989 and also produced the child before the Magistrate on 14/10/1989 for recording his statement Ex.P-66 under Section 164 Cr.P.C, it becomes crystal clear that child could reveal his own identity as well of his family members and also 21 Cr.A No. 491/1994 Cr. A No. 1190/1996 could narrate the incident which occurred in the frightful night with his mother, brother and himself. Evidence of child witness stood corroborated from the circumstantial and also from medical evidence on material aspects of the prosecution case.
37. For the reasons aforesaid, judgment of acquittal of the respondent of the charges under Sections 302 and 201 IPC passed by the Trial Court is set aside. Respondent is convicted under Sections 302 and 201 IPC and is sentenced to undergo imprisonment for life and R.I. for two years, respectively on each count. He shall surrender forthwith to serve out the sentence.
Appeal is allowed.
(RAKESH SAKSENA) (T.K. KAUSHAL)
Judge Judge
tarun/ys
22
Cr.A No. 491/1994
Cr. A No. 1190/1996