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Delhi District Court

The Case Of The Prosecution In Brief Is ... vs . on 28 February, 2012

     IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                   ROHINI COURTS, DELHI

SC NO.220/10
FIR NO. 313/05
U/S 302/120B/34 IPC
PS Bawana
Unique Case ID No. : 02404R0437882006

               State 

               Vs. 

     1. Smt. Sushma w/o Bijender Singh

        r/o H.No.778, Village Bawana, Delhi.

     2. Subhash s/o Ved Prakash

        r/o H.No.136, Village Shahbad, Daulatpur, Delhi.

     3. Puran @ Bobby s/o Nahar Singh

        r/o Village Baj Garhi, PS Iglas,

        District Aligarh, UP.

     4. Sandeep (juvenile)



Date when committed to the court of Sessions :15.12.2005
Date when case reserved for judgment        : 15.02.2012
Judgment pronounced on                        : 28.02.2012

JUDGMENT:

1. The case of the prosecution in brief is that on 25.08.2005, an SC No.220/10 Page 1/74 information was received at the PS vide DD No.34A that at H.No.792, Surender MLA wali gali, Village Bawana, one person has been shot dead while sleeping and this information was passed on to SI Ajit Singh and to the SHO also, who after receiving of DD No.35A, reached the said spot where he found one Baljeet Singh, whose statement was recorded.

2. As per statement of said complainant Baljeet Singh, he was residing at H.No.780, Village Bawana, and in his neighbourhood, his younger brother namely Bijender was residing with his family and in the same house, in one room, their youngest brother namely Satya Narain was also residing along with his family and that for about last 1½ or 2 months, said Bijender was not having good relations with his wife, who was having a doubt over the character of his wife Sushma and at about one or one and a quarter months ago, said wife Sushma had tried to give him poison and since then the said Bijender was not taking food at his house and brother in law of said Bijender namely Raju and Subhash usually come to the said house and quarreled with the said Bijender on the issue of harassing their sister (wife of the deceased Bijender) and she was not being paid household expenses and on 24.08.2005, at about 12 noon, the said Subhash had come to the house of deceased Bijender and left after staying there for five minutes and on 25.08.2005, at about 2.30 a.m, he (the complainant) got up for urinating when he heard a noise SC No.220/10 Page 2/74 of bursting of cracker and he thought that it might be the noise of some tyre puncture of a vehicle and in the morning, at about 6 a.m, he came to know that someone had fired a shot at his brother Bijender and when he went to his (deceased) house, he saw that Bijender was lying dead on the cot inside a mosquito net in the courtyard of his house and blood had oozed out from behind his left ear and there was a big hole in the mosquito net and pillow and bed sheet were bloodstained and someone had fired a shot and killed his said brother Bijender in the said night and he raised a suspicion in the said murder of his brother over the wife of the deceased namely Sushma.

3. On the basis of the said statement, the SHO got recorded the FIR and during investigation, autopsy on the dead body was got conducted, statements of witnesses were recorded, site plan was got prepared, exhibits were lifted from the spot and were sent to FSL, photographs of the spot were taken and statement of the son of the deceased namely Gaurav was got recorded u/s 164 Cr.PC, scaled site plan was got prepared and accused Puran @ Bobby was declared as PO and remaining accused were arrested and the charge sheet was filed against them u/s 302/120B/34 IPC.

4. Subsequently, accused Puran @ Bobby was arrested and a supplementary charge sheet was filed against him also, the FSL SC No.220/10 Page 3/74 result was also placed on the record. On 01.05.2007, my Ld. Predecessor held accused Sandeep as juvenile and his charge sheet was directed to be filed before the Juvenile Justice Board and accused Sandeep was also referred before the said Juvenile Justice Board for necessary action.

5. On the basis of the said evidence and the charge sheet initially my Ld. Predecessor, vide his order dated 06.03.2006 framed charge against accused Sandeep, Sushma and Subhash u/s 302/34 IPC only but later on it transpired that accused Sandeep was a juvenile whose charge sheet was separated and accused Puran was arrested subsequently against whom a supplementary charge sheet was filed and the aspect of conspiracy was not considered and as such, the charge was amended by my Ld. Predecessor on 21.05.2007 whereby accused Sushma, Subhash and Puran were charged u/s 120B & 302 r/w 120B IPC, to which they pleaded not guilty and claimed trial.

6. The prosecution, in order to prove its case, has produced as many as 19 witnesses which have been discussed below.

7. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and accused Subhash and accused Puran preferred to lead defence evidence and examined Sh. Ram Prakash and Sh. Roshan Lal as DW1 and DW2 in their defence who SC No.220/10 Page 4/74 deposed that on 12.08.2006, the police of Delhi had reached Village Bajgarhi, PS Iglas, Post Mohariya, District Aligarh and took accused Puran by dragging him and mother of the accused also came rushing there followed by other villagers, to whom the said police officials disclosed their identity as such and when the said police officials were asked to take the accused Puran before the Pradhan of the village, they refused stating that they were under permission to take the said accused along with them and at that time, the Pradhan of the village was one Sh. Godhan Lal, who at the relevant time was 70 years of age and was suffering from heart ailment and was incapable of coming to the court and he has given a letter in writing regarding the said incident which is Ex.DW1/A and the existing Pradhan of the said village also gave the same letter which is Ex.DW1/B. In their cross examination, they admitted that they did not go to the nearest post office to the village for sending any telegram to the Senior Officials of Delhi Police with regard to said illegal taking away of the accused Puran nor they moved any application under the RTI Act to know about the whereabouts of accused Puran or as to why the said accused was taken away by the police. They admitted that they were not the summoned witnesses and had appeared before the court at the instance of the mother of accused Puran.

8. I have heard Ld. APP for the state, Sh. Arun Rathi, Advocate for accused Smt. Sushma and Subhash and Sh. Vikas Kumar, Adv. SC No.220/10 Page 5/74 for accused Puran and perused the record.

9. PW1 W/ASI Asha Devi was the duty officer who proved the copy of FIR as Ex.PW1/A and her endorsement on the original rukka (the complaint) as Ex.PW1/B and she further proved DD No.34A in the handwriting of HC Vijay Singh, who was the then Duty Officer, as Ex.PW1/C and the departure entry of Inspr. R.A. Meena along with the staff vide DD No.35A as Ex.PW1/D and she further proved the DD No.5A whereby the FIR was started to be written as Ex.PW1/E and after the registration, she sent special report to senior officers through Ct. Sanjay Kumar vide DD No.6A and copy of the same was proved as Ex.PW1/F and Ct. Sanjay Kumar, after returning to the PS, made his arrival entry vide DD No.12A and copy of the same is Ex.PW1/G.

10. PW2 Satya Narain was the brother of the deceased Bijender residing in the same premises which is the spot of this case bearing H.No.778, Village Bawana, who deposed regarding identification of the dead body vide his statement Ex.PW2/A and in his cross examination on behalf of the accused, he admitted that the door of his room opens in the courtyard of his house.

11. PW3 Ct. Pawan Kumar took the rukka (the original complaint) to the PS from the spot for the registration of FIR and he came back at the spot and handed over the rukka and copy of the FIR to the IO. SC No.220/10 Page 6/74

12. PW4 Sh. Krishan is the neighbour of the deceased, who deposed that deceased was known to him as his neighbour and he knew the wife of the deceased, present in court as accused Sushma, but he did not know as to how deceased expired and he had no knowledge about the character of accused Sushma, the wife of the deceased and he was declared hostile by the prosecution and in his cross examination on behalf of the State by the Ld. Addl. PP, he denied to have made any statement to the police with regard to earlier incident of accused Sushma giving poison to deceased Bijender about 1½ months before his death or that after the said incident, Bijender remained perplexed and was under the fear that he could be eliminated by his wife and he was confronted with his previous statement Ex.PW4/A where the said facts were found so recorded. PW4 was not cross examined on behalf of the accused.

13. PW5 HC Mahender Singh was the MHC(M) who deposed regarding deposit of the exhibits and sending the same to FSL Rohini, Delhi.

14. PW6 Baljeet Singh is the complainant, who deposed on the lines on which he made his statement and proved his statement given to the police as Ex.PW6/A and he further deposed that accused Subhash, present in court, is the brother of accused Sushma and one Raju used to visit the residence of the deceased Bijender and used to SC No.220/10 Page 7/74 quarrel with him and that on 24.08.2005, accused Subhash along with accused Puran, present in court, visited the residence of his brother Bijender at about 12 noon and they stayed there for about five minutes and left and that deceased was also not paying the household expenses to his wife Sushma and that was one of the reasons of quarrel between them. He further deposed that police also recorded his statement regarding the identification of dead body of his brother which is Ex.PW6/B. He testified that accused Sushma had also sold her golden chain prior to the murder of his brother Bijender and she handed over the sale proceeds of the said chain to accused Puran and that a deal was finalized for a sum of Rs.1.5 lacs for committing murder of his brother and Sushma had paid a sum of Rs.50,000/­ to accused Puran for committing murder and that accused Puran was a tenant at the house of accused Subhash, who had hired accused Puran for committing the murder of his brother and they both visited the house of his brother for committing his murder. He further deposed that on 26.08.2005, accused Subhash, Sushma and Sandeep (juvenile) were apprehended by the police, who were interrogated and they made their disclosure statements which were reduced to writing and the disclosure statement of accused Sushma is Ex.PW6/C and that of accused Subhash is Ex.PW6/D and that he signed the personal search memo of accused Subhash which is Ex.PW6/E. SC No.220/10 Page 8/74

15. In his cross examination on behalf of the accused, PW6 replied that his own house was situated after 3­4 houses of the deceased and that 10 years ago, he was working in MCD and he told this fact to the police that he was working in MCD and he was confronted with his previous statement Ex.PW6/DA where it was recorded that he was still working in MCD. He further replied that when he reached the house of his brother, the police officials, one Mahender, accused Sushma, his brother Satya Narain and other neighbours were present and he reached the house of his deceased brother at about 6.30 a.m on 25.08.2005 and the police officials reached the spot at about 6.40 a.m. He further replied that he had not accompanied the police officials, along with the dead body of his deceased brother, to the hospital. He replied that so far as he remember, his statement was recorded by Mr. Rana, the police official, and that police officials also made inquiries from accused Sushma. He replied that there was no dispute between him and his brothers regarding land and volunteered that there was a dispute over land between himself, his brothers and their Tau (the great uncle) in the year 1998. He further answered that he had not stated to the police in his statement that accused Sushma had sold her golden chain and she had handed over the sale proceeds of the said chain to accused Puran. He could not tell the name of the police official who made inquiries from accused Sushma on 26.08.2005 SC No.220/10 Page 9/74 and he replied that statement of accused Sushma was recorded in the room of SHO. He further admitted that gate of the room of his brother Satya Narain opened in the courtyard where the deceased Bijender was sleeping. He replied that he had stated in his statement to the police that accused Subhash along with one other person visited at the house of deceased Bijender on 24.08.2005 and he was confronted with his statement Ex.PW6/DA where name of accused Puran was not found mentioned and he volunteered that he disclosed the name of accused Puran but the police might not have recorded his name. He further replied that his statement was not recorded by the police on the day when accused Puran was brought to the house of deceased and on that day, no statement was recorded by the police in his presence. He further replied that he was living separately from his brother, the deceased Bijender, for last 3/4 years prior to his death. He further replied that deceased was living as a tenant in the house of his brother Satya Narain. He replied that accused Sushma disclosed in her disclosure statement that accused Puran was living as a tenant in her village Shahbad, Gorakh Pur, but he (the witness) did not state in his statement made to the police that accused Sushma disclosed about the fact of Puran living as a tenant in her village. He denied the suggestion that there was dispute between his brothers Satya Narain and deceased Bijender in respect of property.

SC No.220/10 Page 10/74

16. PW7 Ct. Sanjay Kumar was the special messenger who took the copies of FIR to the senior officers of the police and on 14.10.2005, he deposited the exhibits of the case with FSL Rohini.

17. PW8 Dinesh, again a neighbour of the deceased, deposed that in the morning of 25.08.2005, he came to know that Bijender, who was residing in his neighbourhood, had been murdered in the night intervening between 24/25.08.2005 and he had also come to know that for the said murder, wife of the deceased namely Sushma, her brother namely Subhash and one Sandeep had been arrested and that there was talk in the entire village about illicit relationship between Sushma and Sandeep and that 1½ month prior to the murder of the deceased also, Sushma had attempted to kill the deceased by giving him poison and thereafter deceased used to remain frightened and used to say that his wife would certainly get him killed one day. He further deposed that police recorded his statement after 4/5 days of murder of the deceased and he identified accused Sushma and Subhash present in the court. He was cross examined on behalf of the State by the Ld. Addl. PP on certain points wherein he admitted that he stated in his statement to the police that they were not surprised after the murder of deceased Bijender and that they were certain that deceased would be killed. He further admitted that he had also stated in his statement to the police that Sushma and Sandeep had got the deceased Bijender killed. However, in his cross SC No.220/10 Page 11/74 examination on behalf of the accused, PW8 admitted that deceased Bijender was in his relation. He further admitted that there was a family dispute between him and the family of deceased Bijender but he never had any dispute with deceased Bijender. He denied the suggestion that he was deposing falsely at the instance of Baljeet, the elder brother of the deceased.

18. PW17 Bijender, again a resident of Village Bawana, deposed that he was working as property dealer and in the year 2005, he was working in Jaipur Golden Hospital and he knew accused Puran, present in court, as his neighbour but again said, that his relative i.e. brother in law Sandeep was residing in his neighbourhood. He testified that on 25th or 26th August, 2005, accused Puran met him in the morning and when he asked as to from where he (the accused) was coming, the accused told him that he was coming from the house of his brother in law and at that time, one person was also accompanying said Puran whom he (the witness) did not know and he never saw him again. He was declared hostile by the prosecution and was cross examined on behalf of the State by the Ld. Addl. PP wherein he admitted that he made his statement to the police on 29.08.2005 wherein he stated that on the said day, he saw accused Subhash along with the police in M.B. Hospital for his medical examination and he was confronted with his previous statement Ex.PW17/A from portion A to A where it was so recorded. He SC No.220/10 Page 12/74 further replied that he did not remember if he stated to the police that accused Subhash was the same person whom he saw along with accused Puran on 26.08.2005 at about 5 a.m at Kanjhawala Road Bus Stand and that he might have stated so in his statement and he was confronted with his said previous statement from portion B to B where it was found so recorded. He further replied that he had not stated to the police that he knew accused Subhash prior to that and he was again confronted with his previous statement from portion C to C where it was found so recorded. He answered that he had not stated to the police that accused Puran had told him that he (the accused) along with accused Subhash had fired on the brother in law of accused Subhash, who was residing at Village Bawana, because the said brother in law used to ill treat the sister of said accused Subhash or that accused Puran had asked him (the witness) that if such like nature of work was to be got done by him (the witness), he (the accused) would get it done at a low cost and thereafter he (the witness) came back to his house and the said facts were again confronted with his said previous statement from portion D to D where the same were found so recorded. He answered that he had not stated to the police that due to fear, he did not tell the said facts to the police and after looking the said accused Subhash in the hospital, he narrated the above said facts to the police and he was again confronted with portion E to E of his said previous statement SC No.220/10 Page 13/74 where it was found so recorded. He further admitted in his cross examination on behalf of the State that on 29.08.2005, he made his statement before the police voluntarily and in full consciousness. Further, when the attention of the witness was drawn towards accused Subhash present in the court, he replied that he did not know the person by the name of accused Subhash present in court or that he had identified accused Subhash in the hospital when he was in police custody.

19. In his cross examination on behalf of the accused, PW17 admitted that accused Sandeep (juvenile) and brother in law of accused Puran are not the same person. He further answered that he did not produce any document to the police with regard to his employment at the Jaipur Golden hospital nor he had brought the same in the court. He replied that he did not know any Baljeet, the brother of the deceased. He further answered that he did not state about the said facts to any of his family members between 26.08.2005 and 29.08.2005. He further answered that police did not produce accused Puran before him at the time of his arrest. He further answered that on 29.08.2005, police only recorded his name and address and he did not go through the statement which was recorded by the police officials on that day and when he was confronted with his two versions given in the said two cross examinations with regard to his statement to the police dated SC No.220/10 Page 14/74 29.08.2005, the witness replied that as the matter pertained to the time of about 5/6 years ago, he did not recollect as to whether he had gone through the statement given to the police or not but he made the statement to the police.

20. PW10 is the autopsy surgeon who deposed that he found external injuries on the dead body of the deceased as firearm entry wound lacerated, irregular shaped with edges inverted of the size 1.5 cm x 1 cm over left temporo occipital region cranial cavity deep 3 cm from left mastoid, 13.6 cm from left eye with tattooing in an area 17 cm x 20 cm and with absence of blackening, charring, singeing with clean cut fold in corresponding outer table in skull and bevelling in inner table with blood clots with traversed track bright pink colour and he found firearm exit wound of size 1.9 cm x 1.1 cm bevelled wound on temporal region right side, 4.3 cm from lateral angle of right eye and 5.5 cm from right ear with edges inverted with profused blood clots. He further deposed that when the entry wound was explored, the corresponding underline brain matter contused lacerated with intra cerebral haematoma with blood clots in and around the traversed track with subdural and subarachnoid haemorrhage over brain surface and he opined that cause of death was shock resulting from cranio cerebral damage from head injury consequent upon projectile firearm injury and time since death was approximately about 12 hours and he conducted the postmortem SC No.220/10 Page 15/74 examination on 25.08.2005 at 2 p.m and he preserved the clothes, blood sample and viscera of the deceased and handed over the same to the police and he proved his PME report as Ex.PW10/A. In his cross examination on behalf of the accused, the autopsy surgeon admitted that entry point of gunshot injury was from left side head of the deceased. He replied that the range from which said gunshot injury was caused was to be told by the Ballistic Expert and same was his reply with regard to nature of the firearm as to whether the same was pistol, revolver or a gun. He answered that he had not mentioned the colour of the blood clots found over exit wound. He denied the suggestion that he had not mentioned the colour of blood clots on the exit wound because it was not a gunshot injury at all. He replied that there may be a variation of few hours in the opinion regarding time since death.

21. PW11 SI Manohar Lal was the draughtsman who proved the scaled site plan as Ex.PW11/A which he prepared at the instance of complainant Baljeet Singh and in his cross examination on behalf of the accused, he replied that references in the site plan are mentioned as stated to him by the complainant and the IO and that the boundary wall was of 150 cm in height. He could not say if there was an iron grill over the boundary wall or not. He further answered that he had seen the electric pole himself and he was told that light was there on the said pole. He further answered that there was no hindrance of SC No.220/10 Page 16/74 door at point B and it was an open passage. He did not remember if there was a door in the room opposite kitchen shown in the site plan.

22. PW12 Ct. Rajesh Kumar deposited the viscera with the IO which was seized vide seizure memo Ex.PW12/A.

23. PW15 SI Jai Kishan deposed that on 05.09.2005, he got recorded the statement of the minor witness namely Master Gaurav u/s 164 Cr.PC before the concerned Magistrate vide his application Ex.PW15/A and at his request, the copy of the statement was supplied to him vide application Ex.PW15/B and the carbon copy of the statement supplied to him by the concerned MM is Ex.PW15/C and thereafter he deposed that on 26.08.2005, accused Sushma and accused Subhash made their disclosure statements which are Ex.PW6/C and Ex.PW6/D and accused Sandeep, the juvenile, was arrested in his presence and accused Subhash and Sushma were also arrested in his presence vide memos Ex.PW15/D to Ex.PW15/G.

24. In his cross examination on behalf of the accused, he replied that he did not remember as what time they arrested the accused but it was day time. He further replied that he informed one day in advance to the family members of Master Gaurav about recording of his statement before the Magistrate and the witness was accompanied by his uncle (Tau) Baljeet Singh to the court for getting the said statement recorded.

SC No.220/10 Page 17/74

25. PW16 ACP Virender Kumar was the IO of the case who deposed regarding the investigation conducted by him and he further proved the rough site plan prepared by him at the instance of complainant Baljeet Singh as Ex.PW16/A and he lifted dari, pillow, bed sheet, cot and mosquito net from the spot and except the cot, the other articles were sealed with the seal of VK and were seized vide common seizure memo Ex.PW16/B and thereafter autopsy was got conducted on the dead body and on 26.08.2005, he arrested accused Sandeep, Subhash and Sushma, recorded their disclosure statements, getting the scaled site plan prepared, sending the exhibits to the FSL and he tendered the results as Ex.PX, Ex.PY and Ex.PZ and he further deposed that SI Ajit Singh, who was associated with the investigation with him, has expired now to whom the print photographs were given by the photographer of the crime team and as such, the said photographs are not traceable now and he identified the dari as Ex.P1, bed sheet as Ex.P2, pillow and cover as Ex.P3, mosquito net having a hole as Ex.P4, bloodstained shirt, one half pant as Ex.P5 and Ex.P6 which were belonging to the deceased and given by the autopsy surgeon and iron folding cot as Ex.P7.

26. In his cross examination on behalf of the accused, PW16, the IO of the case, replied that he received the message at 8 a.m on the way when he was going to the PS from his house. He further replied that he made inquiries from the public persons and family SC No.220/10 Page 18/74 members of the deceased gathered at the spot and he visited the spot many times after the incident. He replied that accused Sushma and Subhash were arrested in the PS when they were brought for interrogation in the evening of 26.08.2005. He further replied that one Satya Narain, brother of the deceased, was present at the spot when he reached there after the incident and he admitted that said Satya Narain was residing in the adjoining room of the deceased in the same house and he admitted that door of the room of Satya Narain opens towards the courtyard where deceased used to sleep. He answered that there was a property dispute between uncle of the deceased on one hand and the brothers of the deceased on the other hand wherein said brothers of the deceased namely Satya Narain and Baljeet went to jail in a murder case. He replied that only Ballistic Expert can tell as to from which distance the bullet fire was shot. He admitted that weapon of offence could not be recovered.

27. PW18 Retd. SI Ram Avtar deposed regarding arrest of the accused Puran @ Bobby on 12.08.2006 at Metro Station Rithala at the instance of secret informer, u/s 41.1(c) of the Cr.PC and his disclosure statement Ex.PW18/A was recorded and thereafter he passed on the information of the arrest to PS Bawana and later on, the accused was arrested in the present case by the IO after taking permission from the court.

SC No.220/10 Page 19/74

28. PW19 Inspr. Kailash Chander deposed that on 12.08.2006, he received an information vide DD No.16A regarding arrest of accused Puran @ Bobby and he along with Ct. Sanjeev Kumar reached at H.No.780, Village Bawana, where he met complainant Baljeet Singh and Master Gaurav, son of the deceased and asked them to identify the accused Puran in TIP but the child was terrorized after the incident and he did not agree for the same and thereafter he came to Rohini Courts and arrested accused Puran, after taking permission from the court, and his disclosure statement Ex.PW19/C was recorded and his police custody remand was obtained from the concerned MM and the accused pointed out the place of incident vide memo Ex.PW19/F and recovery of the weapon of offence could not be effected.

29. Now, coming to the deposition of star child witness PW9, Master Gaurav Sehrawat, he was not examined on Oath because there were some lapses in his memory and his I.Q and maturity level was not found up to mark although he was capable of giving rational answers to the questions after understanding the nature of the questions. In his examination in chief on 26.05.2010, he deposed that on 25.08.2005, at about 2.30 a.m, he was at his home and they all three brothers and sister were sleeping in a room and his mother was also with them and his father was sleeping outside the room and that he heard the noise of barking of the pet dog due to which he SC No.220/10 Page 20/74 woke up and that he saw his mother Sushma, his maternal uncle Subhash and one another person, whose name he did not know and are present in the court. He further testified that first of all his mother caught hold of the dog and his maternal uncle administered some medicine to the dog and that he saw the third person fired at his father's right side temple region and after firing, his maternal uncle and the said other person went inside the bathroom and after few minutes they left the spot. He further deposed that his mother came inside the room and the house was bolted from outside by the other accused and that he did not raise any alarm out of fear as his mother had asked him not to disclose this fact to anyone. Thereafter the witness pointed out towards accused, out of three accused, whose name was confirmed by the court as accused Puran. PW9 further testified that the accused persons entered the house by jumping small boundary wall of the house. The witness was asked about the description of the pistol, about which in vernacular, he was using the word "Bandook" to which the witness has taken his both hands in two directions for showing the length of the said weapon and which may be about one feet. Thereafter he deposed that his statement was once recorded in the court and he did not thumb marked or signed the said statement and the said statement was read over to the witness in vernacular to which the witness answered that it was the same statement got recorded by him before the Magistrate SC No.220/10 Page 21/74 and the statement was exhibited as Ex.PW9/A.

30. In his cross examination on behalf of the accused, PW9 answered that at the relevant time, he was residing with his grand parents and younger brother of his deceased father namely Surender Singh. He replied that he had another uncle by the name of Satya Narain who was residing in the house in which said gunshot fire had taken place on the said day. He replied that on the day of incident, his said uncle Satya Narain was present in the adjoining room in which he was sleeping. He answered that he has one uncle (Tau ji) (elder brother of the father) by the name of Baljeet, who was residing separately in the same area and his said uncle Baljeet had gone to jail but it was prior to his birth. He answered that the pet dog was tied in the courtyard near the bathroom and that his father used to close the door of their room, in which they used to sleep, from outside. He admitted that he has been coming to the court along with his uncle Baljeet. He replied that the said statement Ex.PW9/A was recorded after about one year of the incident. He denied the suggestion that said Baljeet used to point out and tutor him to tell about accused Puran as the person who fired gunshot at his father. He further replied that he slept on his bed after the incident and that his sister Manju is one year elder to him and she was also sleeping in the same room. He answered that he did not tell about the incident to his sister Manju and he did not disclose the said SC No.220/10 Page 22/74 incident to his uncle Satya Narain in the morning but he disclosed this fact to his Tau ji (great uncle) in the afternoon and that his statement was recorded only once in the court prior to the present deposition. The witness was again read over with the statement Ex.PW9/A and he submitted that he did not make the statement to the effect that he saw the gun in the hands of his Mama (maternal uncle, the accused Subhash) but he again said that he saw the gun in the hand of his Mama (maternal uncle) but the shot was fired by accused Puran and the gun shot was fired from a very little distance and the witness was showing the distance by stretching his palm. He further replied that the cooler was on in the night of incident. He denied the suggestion that he was tutored by Baljeet to make the said deposition and he volunteered that whatever he saw, he was deposing. He answered that he was not knowing the name of accused Puran at the time of recording of his statement Ex.PW9/A. He further replied that on the day of incident he woke up at 7 a.m in the morning and he did not go to school on that day. He answered that police came on that day but did not inquire anything from him. He answered that he told about the facts of the incident to the police on that day. He replied that for getting the statement recorded u/s 164 Cr.PC in the year 2005, he came along with his uncle namely Baljeet. He answered that he had told the Magistrate in his statement that he woke up after hearing the gunshot and that he had SC No.220/10 Page 23/74 stated to the Magistrate in his statement that his mother had asked him not to disclose the said fact to anyone and he was confronted with statement Ex.PW9/A where it was not found so recorded. He further replied that he had stated to the Magistrate in his statement that the door was bolted from outside by the other accused and again he was confronted with said previous statement where it was not found so recorded. He further answered that he had not stated to the Magistrate in his statement that he woke up due to the noise of barking of their pet dog. Again he was confronted with his said previous statement where the witness had stated that he woke up due to the gunshot noise.

31. With this evidence on record, let me turn to the law laid down by the Hon'ble Superior Courts with regard to appreciation of the deposition of a child witness. In this regard, three judgments of the Hon'ble Supreme Court have been pressed into service on behalf of the accused and one judgment of the Hon'ble High Court of Delhi has been relied upon on behalf of the prosecution.

32. Taking the judgments of Hon'ble Supreme Court first, in the case titled The State of Bihar & Ors. Vs. Kapil Singh and anr. reported as AIR 1969 SC 53, facts and holding of the Hon'ble Supreme Court with regard to the child witness are as under:

"The facts enumerated above make it clear that the crucial question that has to SC No.220/10 Page 24/74 be determined in this case is whether the evidence of Manti can be relied upon for the purpose of convicting Kapil Singh, or upholding the conviction of Ramujagar Singh and Deo Singh. She is the only witness who, according to the prosecution, actually witnessed the murder and saw the assailants. It is, of course, clear that the fact that Rohini Kuer was murdered on the night between the 17th and 18th June, 1961 in her house by some thieves, who entered the house by breaking open a hole in a wall, is amply proved by the prosecution evidence. The point that needs to be examined is whether these three persons were amongst the thieves who committed the crime. Manti is a young girl whose age was recorded as 12 years at the time when she was examined in the Court of Session in July, 1962, so that, at the time of the incident, she was only 11 years of age. While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her. In this case, there are a number of circumstances which, in our opinion, indicate that it will not be quite safe to rely on her evidence. She stated that she was lying on a cot close to the cot on which her aunt Rohini Kuer was sleeping. She actually saw her aunt being killed and, according to her, there was a threat to her life also when Deo Singh said that she should also be killed, though she was saved when Kapil Singh asked that she should be spared because she was a child. It does not seem to be very likely that a child in such circumstances could have continued to pretend that she was asleep. In the morning, according to her, when she came out, she met Bhagwat Prasad before meeting her mother and she told Bhagwat Prasad that 'Daiya' had been killed. It is surprising that she did not at that stage disclose the names of any of these persons to Bhagwat Prasad. In fact, the conduct of Bhagwat Prasad is not trying to find out the names of the persons who had committed the murder from Manti when she told him about it appears to be quite unnatural. It cannot be expected that, on hearing of the murder, he would quietly enter the house to discover the dead body without at all asking Manti whether she had seen the culprits and who they were. She even met others like the Chaukidar Ramkishan, and witnesses Shyam Ram and Gursahay before she met her mother. In her evidence, she tried to explain her failure to disclose the names by stating that her mother had warned her not to disclose the names lest she should also be killed by the persons named by her. This explanation sought to be advanced on behalf of the prosecution will not at all explain why there was no disclosure of names by Manti to the persons mentioned above whom she met before this warning was SC No.220/10 Page 25/74 given to her by her mother. At no stage has any suggestion been put forward by the prosecution that the thieves themselves had put her in fear of life by threatening to kill her if she disclosed their names. She could not, therefore, be under any fear at the time when she met Bhagwat Prasad, the Chaukidar and others and there was no explanation at all why their names were not ascertained from her or voluntarily disclosed by her at that stage.

In this connection, importance must attach to the circumstance that her mother, who is said to have put the fear of life in her, did not enter the witness­ box at all when the case was tried in the Court of Session. She was, no doubt examined by the Police and her statement was also obtained under Sec. 164, Cr.P.C., by producing her before the Magistrate. She was present in the Court of Session when Manti was being examined, but, when her turn for examination came, she disappeared. The Public Prosecutor naturally came out with the explanation that she had been got at by the accused. We are unable to accept this explanation for her non­ appearance. It seems that, if she had come in the witness­box she would not have supported the prosecution and consequently, the excuse was put forward that she disappeared on the day fixed for her evidence, even though she was staying at the same place as her daughter Manti and was looking after her during the trial of the case. In this connection it is significant that, according to Manti herself, her mother had told the Inspector of Police that she had not forbidden her to disclose the names of the culprits. This seems to be another example of the unsatisfactory or unreliable conduct ,of the investigation in the present case.

Apart from these circumstances, which throw considerable doubt on the evidence of Manti even the corroborative evidence sought to be adduced by the prosecution appears to us to be of a very doubtful character. As against Ramujagar Singh, the corroborative evidence put forward is that a quilt and a Dasuti Chadar stained with human blood were recovered from his house; but no reasonable explanation is sought to be given by the prosecution as to how the blood came to be on these two articles, if it was the blood of the deceased Rohini Kuer. It is to be noted that the murder took place in June, 1961 and at least a quilt will not be in use at all during that season in the plains of Bihar. A suggestion seems to have been put forward that Ramujagar Singh had taken both these articles to wrap himself in them in order to conceal his identity. This suggestion is, however, clearly nullified by the evidence of Manti who does not state that any one of the persons, whom she saw in the house at the time of SC No.220/10 Page 26/74 murder, was carrying a quilt or a chadar or was trying to conceal his features by wrapping himself in them. Even the alternative explanation that they may have become bloodstained when Ramujagar Singh came home with Rohini Kuer's blood on his body is, on the face of it, highly improbable. Manti herself says that all the culprits washed their hands in the house where the murder was committed before leaving that house. The quilt and the Dasuti Chadar had sprinkling of blood and not mere blood­smudges. Obviously such sprinkling of blood could not appear on the quilt and the Dasuti Chadar by their coming merely in contact with Ramujagar Singh after his return to his house, even if some bloodstains remained on his body when he came home. It is true that the explanation for these bloodstains put forward on behalf of Ramujagar Singh that they were from some skin sores of one of the children of his family has not been accepted and is not very satisfactory, but the failure of an accused to give an adequate explanation does not lead to an inference that these bloodstains must be those of the blood of the deceased. The circumstances seem to indicate that there is no connection at all between these bloodstains and the murder of Rohini Kuer."

33. In case titled Bharvad Bhikha Valu and others Vs. State of Gujarat, reported as AIR 1971 SC 1064, the facts and the investigation were that "The three appellants Bhika Valu, Dhuna Magha and Valu Vela were the accused in this case. They belonged to the Barwad community of Gundi village of Dholka Taluka, Ahmedabad Rural District. In this village there were two factions one of the Koli Patels and the other of Bharvads. Five or six years prior to the date of occurrence, namely 20 February, 1965, 5 or 6 Bharvads of Gundi village were murdered. Amongst those murdered were Vajakaran Vaha, Ranchhod Valu, Ganda Kama, Deva Kama and Vela Kama. The appellant Bhika Valu is the nephew of Vajakaran Vaha and is brother of Ranchhod Valu both of whom were among the murdered Bharwads. The appellant Dhuna Magha is an agnate of the three murdered Bharvads Ganda Kama, Deva Kama and Vela Kama. The appellant Valu Vela is the son of murdered Bharvad Vela Kama. In respect of the said offences of murders of those Bharvads, a charge­ sheet was brought against 23 Koli Patels of the village and out of them, four persons were convicted and sentenced to various terms of imprisonment. Palji SC No.220/10 Page 27/74 Teja, the deceased in the present appeal and Pitambar Bhura and Rupsing Raja, two prosecution witnesses in this case were among the 23 Koli Patels implicated in those offences of murders. Since the murder of Bharvads relations between Koli Patels and Bharvads were not friendly. The present offence was alleged to have been committed in consequence of the strained relations between the Koli Patels and the Bharvads. The prosecution case was this. On 20 February, 1965 Falji Teja and his son Khengar went to the Bhurkhi Railway Station which was about two furlongs from the place of the occurrence. Falji and Khengar went to meet the train, which would arrive at about 3 p.m. to engage agricultural labourers if they could be obtained. Falji and Khengar met the train but could not find any agricultural labourer. Then they started on the return journey to Gundi Village. When they passed over a culvert near the Panchayat Office at Gundi accused No.1 ran up from behind and gave a blow with an axe to Falji on the left leg from behind. Falji fell down. Accused Nos. 2 and 3 ran up to the spot. Accused No. 2 was armed with a spear and accused No. 3 with a Dharia. All the three accused started giving blows to Falji. As a result of the injuries Falji died on the spot. Three accused ran away. Falji Teja had a double barrelled gun with him and that gun fell from his hand when he was assaulted. Accused No. 1 carried away the gun which Falji Teja had carried with him. Khengar who was a young boy of about 14 got frightened and ran away. He informed his mother Bai Samu about the assault on his father and told her who the assailants were. At the time of the assault Pitambar Bhura a Koli Patel was proceeding from his house in Gundi to Bhurkhi Railway Station and he saw the entire incident from a place. Another prosecution witness Rupsing Raja also a Koli Patel was behind Pitambar Bhura and was on his way to the field. He also saw the incident of assault on Falji. After the assault Rupsing Raja went back to the village and informed Mera Mathur whose wife Bai Raju was working as an agricultural labourer with Falji. Thereafter Bai Samu went to the place of incident. Rupsing Raja and Mera Mathur also went to the spot by that time. At the place where the dead body of Falji Teja was lying, Pitambar Bhura and Rupsing Raja confirmed the information which Bai Samu had received from Khengar as to the three accused being the assailants of Falji. One Kavabhai Mansing happened to go to a well near the scene of offence. Kavabhai Mansing saw Bai Samu and found her weeping. Kavabhai Mansing SC No.220/10 Page 28/74 went up to Bai Samu and saw Falji lying dead with injuries. Rupsing Raja, Mera Mathur, Pitambar Bhura were also present when Kavabhai Mansing went up to the scene of offence. Bai Samu told Kavabhai Mansing about the incident and asked him to go and send a telegram to the Koth Police Station. Kava Mansing went to the Bhurkhi railway station and contacted the Station Master and asked him to send information to Koth Police Station. The Station Master, Bhurkhi got in touch with the Koth Railway Station and recorded the message.

The Police Sub­Inspector from Koth Police Station proceeded to Gundi village. He held inquest on the dead body. He made a panchnama. When the three accused ran away accused No. 2 left behind him at the scene of the offence his spear. The blade of the Dharia which was used by accused No. 3 was broken and the broken portion of the blade was left behind at the scene of the offence. The Police Officer took charge of the spear and the broken portion of the blade of Dharia. The dead body was sent to Dhandhuka for post­mortem examination. The statements of Pitambar Bhura and Rupsing Raja were recorded on 20/21 February, 1965 in the night and the following day the statements of other witnesses were recorded. The three accused presented themselves before the Police Inspector on 21 February, 1965. The Police Sub­ Inspector discovered in the presence of Panchas a gun which accused No. 1 had concealed at the house of a tailor. The Police Inspector further discovered a Dharia which accused No. 3 had concealed at the hedge of the Vada land of one Bharvad Vama Vaja. The piece of blade of Dharia which was found at the scene of the offence matched the broken edge of the Dharia discovered. An axe was also discovered by accused No. 1 who led the police party and the panchas to the Vada land of Vama Vaja and from there took out an axe. The reports of the Chemical Analyser and Serologists indicated that there were stains of human blood on the gun and on the handle of the Dharia and the other portion of Dharia. There were blood stains on the axe but the blood had so integrated that the origin could not be determined."

34. The concerned Sessions Judge acquitted the accused but Hon'ble High Court set aside the order of acquittal and convicted the appellants by accepting the evidence of Khengar son of Falji, the deceased, Bai Samu widow of Falji and relied on the evidence of SC No.220/10 Page 29/74 Khengar by reason of corroboration of various pieces of circumstantial evidence. It was further held by the Hon'ble Supreme Court as under:

"As to Khengar's evidence the High Court said that he had seen his own father being seriously assaulted by use of dangerous weapons and his failure to appeal to Rupsing and Pitambar to come to the help of his father was not unnatural for a boy of his age at that critical time. The High Court therefore rightly said that Khengar who was a young boy of about 14 years of age must have been very much frightened and his action of rushing towards the village to his own house raising shouts all the time was quite natural in view of his age and his relationship with the victim and the nature of the assault.

The High Court adopted the correct approach in finding that though there were no infirmities of Khengar's evidence as it stood but in view of the fact that he was a young boy it would be prudent to seek corroboration of Khengar's evidence.

The High Court correctly relied on the evidence of Bai Samu in corroboration of Khengar's testimony. Khengar told Bai Samu that his father was assaulted and on Bai Samu asking him who the assailants were Khengar told her that accused No.2 Dhana Megha and accused No.3 Valu Vela and accused No.1 Bhikha Valu had assaulted his father. Bai Samu in cross examination maintained that Khengar had given her the names of the three accused as the assailants of her husband. Kavabhai was near the well which is situated at a short distance to the north of Panchayat Office and on the date of occurrence he saw Bai Samu on the road near the culvert. Kavabhai saw Bai Samu weeping and went to her. Kavabhai saw Falji Teja lying dead on the ground with blood injuries. According to Kavabhai Bai Samu told him that Bhika Valu and Dhana Megha had killed her husband. Kavabhai went to the Station Master. The Station Master Chakravarti did not know Gujarati. Kavabhai spoke to him in Gujarati. The Station Master said that he understood from what Khavabhai told him that Bhikha Valu was murdered by Dhana Megha. The High Court rightly said the Station Master Chakravarti was not familiar with the Gujarati language and because of that there was misunderstanding of what Kavabhai said and wrong names were mentioned. Bai Samu was in great SC No.220/10 Page 30/74 distress and agony of her life. Therefore it would be reasonable to find that though under the circumstances Bai Samu might have given out the names of three individuals Kavabhai understood her to mention the names of accused No.1 and accused No.2.

The High Court referred to the evidence of Dr. Lala who performed the postmortem examination on the body of Falji Teja. Dr. Lala's evidence was that all the injuries could have been caused by sharp cutting instrument and the death of Falji Teja was due to shock and haemorrhage as a result of the fracture of the skull. Dr. Lala spoke of six injuries on Falji Teja. Injury No. 4 a cut on the back of left upper arm lower one third skin deep could have been caused by a spear. Injury No. 3 a semi­circular incised wound cutting through the bone and exposing the brain starting from the right frontal area 1½" above lateral edge of right eyebrow and going backwards across the right parietal left occipetal and then forward over left temporal area and terminating at about 2"

above left ear, could have been caused by a Dharia blow and it could not have been caused by an axe. Injuries Nos. 5 and 6 viz., an oblique incised wound on the back of left thigh and an incised wound on the back of middle half of the left leg could have been caused by an axe and not by a spear. Injury No. 1 an incised wound near the outer angle of left eye and injury No. 2 an oblique incised wound over left cheek in the area of left ear could have been caused by a Dharia and a farsi and not by a spear. That was the evidence of Dr. Lala. The High Court correctly found corroboration from the injuries on the dead body and the three different weapons, viz., the axe, the spear and the Dharia and the wearing apparel pachhedi. The medical evidence was that the different injuries could have been inflicted by Dharia, axe and spear. External injury No. 4 could have been inflicted by a spear or by an exe. Khengar's evidence was there was a spear injury but he had not specified the part of the body where the spear had landed. Khengar might have noticed only the action of accused No. 2 in thrusting the spear but did not notice how and in what manner the spear landed on the person of Falji. Therefore, there could not have been discrepancy between Khengar's and the medical evidence. A spear was found lying at the scene. A broken blade of a Dharia was also lying near the dead body. The Police Sub­Inspector recorded inquest and took charge of that broken piece of Dharia blade. Stains of human blood were found on the Dharia blade. The stains of blood on the spear had so integrated that its origin could not be determined. Therefore, looking at the place from which the spear SC No.220/10 Page 31/74 was found and the circumstances under which the spear was taken charge of by the police, it is clear that the spear must have been stained with Falji's blood and must have been left behind by the person or persons who assaulted Falji. The injuries on the dead body were consistent with the three different weapons and the three different types of weapons rendered it not unreasonable for the High Court to come to the conclusion that there were three assailants each of whom was having a different weapon and each of whom caused injuries to the deceased Falji. Khengar's testimony is corroborated by the testimony of Bai Samu that the three accused assaulted the deceased and caused injuries to the deceased by means of axe, spear and Dharia. The pachhedi which was taken charge from accused No. 3 immediately after he was arrested had stains of human blood. The High Court examined the pachhedi and found that there was only one cutting taken out from the pachhedi and that too was from the portion around which there was a circle in ink and the signature of panch witness Nanbhai was also there. No other cutting was taken out from the pachhedi. There was only one tear on the pachhedi. This cut mark was taken out from the portion encircled in ink when the Panchanama was made. The stain of human blood on the pachhedi worn by accused No. 3 was a strong reliable piece of evidence.

The High Court rightly said that there was no reason to disbelieve the three panchnamas and once that evidence was accepted it clearly followed that the prosecution established that a gun with stains of human blood on it and belonging to Falji Teja was recovered from a spot from where accused No. 1 had kept the gun and the broken blade of the Dharia with stains of human blood on it was recovered from the hedge of the Vada of Vama Vaja the place where accused No. 3 had kept it and the axe was found from another spot in the hedge of Vama Vaja. Discovery of the Dharia and the farsi and the gun corroborated the testimony of Khengar and the further fact that the names of the accused were disclosed by Bai Samu to Kava Mansing. Bai Samu had in her turn been told the names of the three accused as assailants by Khengar. This supports Khengar's version before the Court. Khengar's evidence received corroboration by the discovery of the gun, the axe and the spear. The High Court rightly found that the prosecution case against the three accused had been established beyond reasonable doubt from the evidence of Khengar and from the corroboration which Khengar's evidence received." SC No.220/10 Page 32/74

35. Yet in the third case titled Zafar Vs. State of UP reported as 2003 (2) Crimes 93 (SC), which was a case wherein both the courts below concurrently convicted the accused on the testimony of a child witness, but going very minutely in discussing the evidence, Hon'ble Supreme Court acquitted the appellant before it and the facts and observations of the Hon'ble Supreme Court in the said case are as under:

"The prosecution case is that on the crucial day at about 8 A.M. the deceased was going to a meat shop with his son Aizaz @ Guddu (P.W.2). As they came close to the meat shop, the accused fired a shot from his country­made pistol in front of the house of one Sidhu. The victim collapsed before the meat shop of Achhan (P.W. 3) and succumbed to the injuries then and there. Though some people tried to overpower the accused, he reloaded his pistol and threatened them not to risk their lives. Thereafter, he fled away from the scene. P.W.1, the father of the deceased, on coming to know of the incident came to the spot immediately. He saw the son of the deceased (P.W.2) weeping by the side of the dead body. His clothes were blood­stained. After some time he got a complaint drafted by one Yusuf and handed over the same in the police station at 9.15 A.M. The Head Constable registered the F.I.R. P.W.6, the sub­Inspector of police immediately went to the scene of offence, took custody of the dead body after having it photographed and prepared a Panchnama. Thereafter, P.W.7, the Senior Sub­Inspector, took over the investigation and seized the blood­ stained earth, empty cartridge and blood stained Kurta of P.W.2. On search at the house of accused he found nothing incriminating.

Post­mortem examination was conducted by P.W.5 who was the Medical Officer attached to District Hospital, Gorakhpur, on the evening of the same day. The following ante­mortem injuries were found on the body of the deceased:

"1. Gun shot wound 1­1.2" x 1.2" cavity deep on the right back 9" below the root of the back and adjacent to the mid line. Margins black, contused and inverted wound of entry.

SC No.220/10 Page 33/74

2. Gun Shot wound ½" x 4/10" x cavity deep on the chest 2" inner to right nipple, margins black everted contused wound of exit. 6 pellets recovered underneath this injury."

The motive for the crime as disclosed by P.W.1 is that the accused was under

the impression that the deceased was having illicit relations with the wife of the accused as the deceased was often protesting against the cruel treatment being meted out to her and trying to help her. P.W.1 also stated that there was some altercation a week earlier whereupon the accused threatened the deceased with dire consequences. The accused and the deceased are related.

The two eye­witnesses examined by prosecution are P.Ws. 2 and 3. The eye­ witness P.W.2 Aizaz Hussain was aged 7 years at the time of the incident and 8 years at the time of giving evidence. He was studying in class I in the local school. He gave an account of the incident and the circumstances in which his father was killed. He clearly implicated the accused as assailant. P.W.3, the meat shop owner turned hostile. However, he supported the prosecution case partly.

However, we find on a perusal of the evidence on record that the trial court as well as the High Court failed to focus their attention to certain crucial aspects which have undoubted bearing on the reliability of the evidence of the child witness ­ P.W.2. The first and foremost aspect which deserves attention is about the version of P.W.2 as regards the actual scene of offence. According to the prosecution case, the deceased was shot at in front of the house of one Sidhu and he fell down in front of the meat shop of P.W.3 after walking for a little distance. In the site plan (K­9) the place of occurrence is marked as 'A', as spoken to by P.W.7, the I.O. That spot is just in front of the house of Sidhu. The distance between the place of shooting, i.e. Sidhu's house and the meat shop of P.W.3 is about 5 to 6 'paces' according to P.W.7. P.W.7 stated more than once that the spot of shooting was pointed out to him by P.W.2. P.W.7 further stated that P.W.2 informed him that his father after having been hit by the bullet walked some distance and fell down near the meat shop. The fact that the site plan was drawn up after P.W.2 pointed out the place of occurrence was stated by the I.O. (P.W.7), even in chief examination. The version of P.W.2, the child witness is materially different. According to him, the incident took place at the meat shop itself. This is what P.W.2 categorically stated: "The meat shop is at Baxipur. It is the shop of Achhan (P.W.3). I and my father reached the SC No.220/10 Page 34/74 meat shop. Before my father could purchase meat, the accused Budhu came there and fired a shot. After receiving the bullet injury, my father fell before the shop of Achhan." This statement in chief examination was further reinforced and clarified in the following words :­ "At the meat shop my father asked Achhan to weigh meat. At that time, beside my father other customers were also present in the shop. Achhan was weighing meat for the customers who were standing ahead of my father. There were many customers present at the shop of Achhan for buying meat. While my father was standing there were many persons standing before and after him for buying meat. I was standing ahead of my father. My father was fired at the place where he was standing. It is true that he fell flat."

Thus the witness was categorical about the spot of occurrence being at the meat shop itself. He further stated in the questions put to him by the Court that the bullet hit his father on his back. To a question as to what his father was doing when he was shot at, the witness stated that his father was buying meat. As already noted, according to P.W.7, the earliest version of P.W.2 was that the accused shot him at a spot close to the meat shop but before he reached the shop. P.W.7 drew the site plan as pointed out by P.W.2. If what is stated by P.W.7 is correct, we have two different versions from P.W.2 as regards the scene of offence. In any case, the evidence of P.W.2 does not fit into the prosecution case about the place of occurrence. In the face of this discrepancy on a very important aspect, a reasonable doubt arises as to the reliability of the evidence of this child witness.

Another circumstance which deserves notice is that as per the version of P.W.2, the police came to him four or five days after the occurrence and enquired him about the details of murder and had also taken him to the place of murder. P.W.7, the I.O., has a different story to tell. According to him, after sending the dead body for post­mortem, he recorded the statements of witnesses, Achhan (P.W.3) and Aizaz Hussain (P.W.2) and got the blood stained kurta removed from the body of P.W.2 and collected samples of blood stained soil etc. and thereafter inspected the place of occurrence on being pointed out by P.W.2 and prepared the site plan accordingly. That means P.W.7 claims to have examined P.W.2 on the day of incident itself. But this version is belied by the categorical statement of P.W.2 that the police came to him only after four or five days and made enquiries about the murder. P.W.7 admitted that he did not record the SC No.220/10 Page 35/74 dates when he took the statement of each witnesses in the case diary ­ which is very strange. Amongst the statements found in the first running pages of the case diary, the statement of P.W.2 does not figure at all, as seen from the cross­ examination of P.W.7. All this supports P.W.2's version that he was contacted and examined by police only after four or five days. The question then arises as to why there was such an inordinate delay in examining him. No explanation was forthcoming from the investigating officer in this regard. However, the learned counsel for the respondent­State has endeavoured to give a plausible explanation for this. According to him, the I.O. would not have felt it necessary to adduce the evidence of the child witness on account of the fact that there was another eye witness, namely, P.W.3, who was examined on the same day and who unfortunately became hostile later on. This explanation remains in the area of surmise. The best person to throw light on this aspect is P.W.7 but he did not say a word about it. Moreover, P.W.7 came forward apparently with an untrue version that he examined P.W. 2 on the day of the incident itself and drew up the site plan as per the information given by him. The fact that P.W.2 was examined and taken to the spot only four or five days after the incident while making it appear on record that he was examined on the same day of the incident casts another doubt on the prosecution case. If P.W.2 was in the know of things, why should the police postpone the event of examining him for so many days? Were they trying to project P.W.2 as eye­witness, having failed in their attempts to get direct evidence of others? These are the imponderables in this case. On account of this, a doubt has to be necessarily entertained as to whether P.W.2 claimed to be an eye­witness on the day of the incident itself and he in fact witnessed the occurrence.

One more point of doubt which makes the version of P.W.2 vulnerable to criticism is this: P.W.2 stated that the police personnel were already there at the spot by the time his grand­father (PW1) reached and that the policeman brought a cot and placed the dead body on it. However, this version is inconsistent with that P.W.1 as well as the I.O. According to them, the police reached the scene of offence only after the complaint was lodged by P.W.1. P.W.6 found the dead body lying flat on the ground. All this gives rise to a doubt as to when exactly P.W.2 was at the scene of offence.

In view of the doubtful features and other infirmities in the prosecution evidence as discussed above, we are of the view that it is not safe to rely on the evidence of P.W.2 whose evidence needs to be scrutinized with due care and SC No.220/10 Page 36/74 caution. .........

......... Though it is a case of concurrent finding by both the Courts resting on the appreciation of evidence, we are of the view that the trial court and the High Court overlooked certain important aspects in the practical application of the rule of prudence and caution which the High Court itself proceeded to apply in appreciating the evidence of child witness. The High Court failed to take note of certain telling factors emerging from the evidence on record. There was no critical appraisal of the evidence of P.W.2 except focusing attention on two alleged contradictions of no significance and repelling the arguments based on them. Even if the finding that medical evidence does no go counter to the prosecution case is allowed to remain, there are other fatal infirmities in the evidence relied upon by the prosecution which were not adverted to by the High Court. In these circumstances, we are of the view that it is a fit case for interference under Article 136. Accordingly, we hold that the accused is entitled to benefit of doubt and his conviction ought to be set aside. We, therefore, allow the appeal and direct the authorities concerned to release the accused from the prison forthwith."

36. On the other hand, Ld. Addl. PP has cited a judgment of the Hon'ble High Court of Delhi titled Shama Parveen Vs. State of Delhi reported as 2011 VII AD (Delhi) 449, and the facts and holding of the Hon'ble High Court was as under:

"Briefly the facts of the case are as under:­ The case of the prosecution is that appellant Shama Parveen was married to deceased Mohd. Shameem. Out of their wedlock three sons were born. All were minor at the time of alleged incident. They were all residing at N­169, Sunder Nagri, Delhi. The appellant Tauhid Raza @ Guddu was a neighbour of the appellant Shama Parveen. It is alleged that Tauhid Raza @ Guddu used to visit the house of Shama Parveen and they were having a love affair. It is alleged that appellant Shama Parveen was having extra­marital relations with him. It is alleged that both the appellants hatched a conspiracy with co­accused Khalil to kill the deceased and in pursuance of aforesaid criminal conspiracy they, on the night intervening 13th and 14th February, 2002, murdered deceased Mohd.

SC No.220/10 Page 37/74

Shameem, while he was sleeping in his house and after murdering, the appellant Tauhid Raza @ Guddu and the co­accused Mohd. Khalil took the dead body in a three wheeler scooter bearing no. DL1RG7324 and had thrown the same at bus terminal of bus route no. 212 at 100 ft. Road in the jurisdiction of police station Nand Nagri. Appellant Tauhid Raza had also parked the two wheeler scooter bearing no. DL7SG5486 of the deceased near the dead body and left the key therein in order to conceal the real facts and to give the alleged murder the shape of an accident.

On 14th February, 2002 Constable Vijay Pal PW­16, posted at Police Station Dilshad Garden was patrolling along with Constable Bijender in the area. At about 7.10 am, when they had reached at the 100 ft road they saw a dead body in front of the toilets near the bus stop of route no.212. They informed the PCR which in turn informed police station Nand Nagri wherein DD No. 2A Ex. PW5/A was got recorded.

The aforesaid DD report i.e., Ex.PW5/A was marked to SI Tanvir Ashraf PW­ 17 who along with Constable Yashvir went to the spot where the dead body of a male aged about 40 years having some injuries on the head and cut marks on the shoulder was lying. A scooter (Bajaj Chetak) bearing no. DL 7SQ 5486 seized vide memo Ex. PW17/article 12 was parked at some distance from the dead body. A pair of shoes with blood stained socks were also lying near the dead body. A jacket made of rexine was also lying there. There was a key in the scooter. With the said key, dickey of the scooter was opened and driving licence, pollution certificate, insurance policy and other documents were taken out. The driving licence was in the name of Shamim Ahmed, R/o N­169, Sunder Nagri. In the meantime, Inspector Iqbal Mohd PW 18A had also reached the spot. One Abdul Karim (PW1) also reached there and had identified the dead body as that of his relative, namely Shamim Ahmed. The crime team including a photographer was called at the spot. Inspector Iqbal Mohd PW­18A made endorsement Ex. PW18/A on the copy of DD 2A Ex. PW5/A and sent the same to police station through Constable Hitender PW 14 and got the FIR Ex.PW5/B registered. The Photographer took photos Ex. PW6/16 to Ex.PW6/30 of the spot. The Site Plan Ex.PW18/B was prepared. The blood from the spot was picked up with the help of a cotton gauze as well as earth control and blood stained earth. Three separate pulandas (bundles) were prepared in this regard and the same were sealed with the seal of IMK and seized vide seizure memo Ex.PW14/D. The jacket, shoes and socks lying at SC No.220/10 Page 38/74 the spot were kept in a pullanda which was also sealed with the seal of IMK and were seized vide memo Ex.PW14/A. The documents recovered from the dickey of scooter were also seized vide Seizure Memo Ex.PW14/B. The scooter along with the key was also seized vide Seizure Memo Ex.PW14/C. Inspector Iqbal Mohd PW­18A filled up the inquest form. The statement of Abdul Karim PW­1 and that of son of the deceased Afsar Karim PW4 were recorded about identification of dead body. The dead body was sent to mortuary GTB Hospital for postmortem through Constable Hitender PW­14.

Thereafter, Inspector Iqbal Mohd PW­18A along with SI Tanvir Ashraf PW17 and Constable Manoj went to the house of deceased at N­169, Sunder Nagri where his wife appellant Shama Parveen had met them. A lady constable Kamini PW13 was also called there. The appellant Shama Parveen was interrogated by Inspector PW­18A. Her personal search was conducted by lady Constable Kamini PW13 vide memo Ex. PW13/A. Appellant Shama Parveen had made disclosure statement Ex.PW13/C. She was arrested vide memo Ex.PW13/B. She led them to a room on first floor of her house and pointed out the place of occurrence on the basis of which a pointing out Memo Ex.PW 13/E was prepared. She also removed five sheets of fancy papers which were pasted on the wall of that room and before pasting, the said wall was painted. On removal of sheets by her, blood stains were observed on the wall. Appellant Shama Parveen also produced over 21 similar sheets of paper after taking out the same from an iron trunk. The used as well as unused paper were seized in two different pullandas vide Seizure memo Ex.PW13/E. Appellant Shama Parveen also produced one broken wicket which was lying behind a refrigerator kept in the same room. The same was kept in a polythene bag and then put in a pulanda which was sealed with the seal of IMK. The IO PW18A had found hair struck on the wall which was blood stained. He seized the same by completing necessary formalities. Some portion of concrete from the wall which was blood stained was also seized. There was also some blood on a cot made of iron pipes (folding) in the room which was picked up by him and kept in a pullanda. The same was sealed with the seal of IMK. All the above three sealed pullandas were seized vide memo Ex. PW 13/D. Thereafter, appellant Shama Praveen took them to the roof of her house and had shown one drum containing fresh paint which was also seized after completing necessary formalities in this regard vide seizure memo Ex.PW 13/F. The videographer along with photographer were called at the spot. The entire proceedings were got videographed.

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Thereafter, on the pointing of appellant Shama Praveen, co­accused/appellant Tauhid Raza was apprehended who was standing in a gali outside her home. His personal search was conducted vide memo Ex.PW17/B and was arrested vide memo Ex.PW17/A. On interrogation, he made a disclosure statement Ex.PW 17/C. Appellant­Tauhid Raza led the police party to his house bearing No. N­162 in the same gali and opened the door of his house with a key and produced one sword lying on the ledge, the blade of which was blood stained. The sketch Ex. PW17/D of sword was prepared. The same was seized by IO PW18A vide memo Ex.PW 17/D after completing necessary formalities. The lock and key were also seized vide seizure memo Ex.PW17/E. Thereafter, appellant Tauhid Raza took the police party to Tahidpur main road near cremation ground and pointed out a place in nala and got recovered 12 clothes i.e., pillow covers, bed sheets, shirt, muffler etc and one big broken cricket wicket. All these clothes/broken wicket were seized by the IO by completing the formalities vide memo Ex.PW 11/A. Appellant Tauhid Raza again took the IO PW18A and other police officials to his house and produced one photograph Ex.PW 13/A which was seized vide seizure memo Ex.PW 17/F. All the proceedings were videographed. Both the appellants were brought to the police station and were put up in the lock up.

On that very day, Shri Shravan Kumar (PW9), owner of TSR bearing no. DL IRG­7324 produced the TSR Ex. P1 in the police station. The right side curtain of TSR had blood stains. A piece of curtain having blood stains was seized after cutting it from the curtain vide seizure memo Ex.PW8/DA after completing necessary formalities.

On 15th February, 2002, co­accused Mohd.Khalil was arrested vide arrest memo Ex.PW17/G. On interrogation, he also made a disclosure statement Ex.PW17/I and his personal search was taken vide memo Ex.PW17/H. On the same day, postmortem examination of the dead body was conducted. The statement (Ex. PW4/D) of Afsar Karim, minor son of deceased, was recorded on 15.02.2002. He is alleged to have seen the occurrence. The statement of other witnesses was also recorded in the course of investigation."

37. After recording the contentions of both the parties, the Hon'ble High Court went on discussing as under:

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"The alleged eye witness of the case is Master Afsar Karim, PW­4. The alleged incident is of the night intervening 13th and 14th February, 2002. The evidence of PW­4 was recorded in court on 3rd April, 2003 after about one year and two months of the incident. His age at the time of deposition was about 10 years.

Master Afsar Karim, PW­4 has deposed that till 15th February, 2002, he was residing at N­159, Sunder Nagri, Delhi along with parents i.e., deceased Mohd Shameem and appellant Shama Parveen, his elder brother Ansar Karim and younger brother Anwar Karim. The deceased was his father and was a transporter who used to leave the house between 6 am to 8 am and used to return from business at about 8 pm/9 pm on all week days except Sunday. On Sunday, he used to return in the noon time. Appellant Tauhid Raza was living in their neighbourhood and was friendly with his father for the past since three years.

He has deposed that during the period his father used to go for business, appellant Tauhid Raza used to come to their house to meet his mother. He used to come soon after his father used to leave the house and used to go back on the return of his father from work. Appellant Tauhid Raza used to take lunch in his house and used to tell him to address him as Papa. His mother i.e., appellant Shama Parveen had told him not to disclose the said fact to his father otherwise he would get angry. He has further deposed that during the presence of Tauhid Raza in his house he used to go to school and when he used to return from the school in the noon time he used to find appellant Tauhid Raza at his house. Her mother used to send him and his brother separately for purchasing one or the other things from the market. On 13.02.2002 at about 9.30 p.m. appellant Tauhid Raza @ Guddu borrowed scooter from his father and went away. He went to sleep at about 10.30 p.m. He and his elder brother slept on a cot in the verandah. His mother and younger brother slept on another cot in the room. His father slept on the third cot in the room. At about 1/2 a.m. in the night, he heard the shrieks of his father who was saying "ALLAH ALLAH". He woke up and went inside the room. He saw appellant Guddu was hitting a wicket on the head of his father. When he got up, he found his younger brother sleeping with him on his cot. When his father tried to stand up from the cot, his mother pulled his leg, sat on his chest and pressed his mouth with a pillow. He was frightened to see the same and wanted to go downstairs to urinate but appellant Tauhid Raza prohibited him from doing so and asked him to urinate in the verandah itself. He also saw a sword SC No.220/10 Page 41/74 lying beneath the cot of his father. He urinated in the verandah. When he returned, appellant Tauhid Raza told him not to tell anything to anyone failing which he would face the same thing. Thereafter, appellant Tauhid Raza and his mother took the dead body downstairs. The co­accused Khalil who resides in their neighbourhood was standing outside the house. He and appellant Tauhid Raza took the dead body of his father in a TSR. They also took the clothes with which the blood was cleaned. Her mother covered the blood stains on the wall with the help of water colour of pink colour lying in the house. His mother also pasted colour papers near almirah where lot of blood was there. His mother also told him and his brothers that if anybody would ask about their father, they should tell them that he had gone away after taking `10,000/­. Her brothers had woken up but out of fear they continued lying on the cot. Next day i.e. on 14.02.2002, he had gone with his Khalu (Mausa) Abdul Karim PW1 to the bus stop where he identified the dead body of his father vide statement Ex.PW4/A. Police had met him there but out of fear he did not disclose the incident to anyone. When his mother i.e., appellant told the entire thing to the police on 14.02.2002, he became free from fear and on the next date gave the statement to the police in which he narrated the entire things to the police.

On being cross­examined on behalf of appellants and co­accused Khalil, he has stated that his native place is Village Darya Bagh, Distt. Barabanki, U.P. He has denied that he was living in village at the time of incident and had come to Delhi only after the incident. He has also stated as to who was residing on the right side of his house. He has stated that neighbours did not come at the spot. Mohalla people came on the next morning when they had come to know of the incident. He has deposed having reached the spot where dead body was lying for identification on 14.02.2002 at about 10.30 a.m. He has denied the suggestion that he did not go to the place of dead body of his father. He has denied the suggestion that his father had left the house of his own after taking ` 10,000/­. He has also denied that someone else had killed his father. The police came to his house on 14.02.2002 at about 9.00 a.m. and remained there till 4­5 p.m. He has denied that he was living with his Chacha (paternal uncle). He has denied that there was any property dispute with his Chacha in Barabanki or that his mother used to interfere or that his Chacha had threatened his mother not to interfere. He has also stated in cross­examination that the incident continued for 10­20 minutes in his presence. He did not try to save his father because he was frightened. On the next day, he did not go out uptil 1 a.m. He had only gone out when his Khalu PW1 had come and taken him to the spot.

SC No.220/10 Page 42/74

After the incident, he did not go to the school as he had gone to the village. He has denied that incident had not taken place inside the house or that the dead body was not taken away from there. He has further stated that on the day of incident his father took meals at 8.30 p.m. He has further stated that he did not like the visits of appellant Tauhid Raza to his house and he wished that he did not come to their house.

.........The witness has also stated that his mother had pressed the mouth of his father with a pillow. On being confronted with statement Ex.PW4/DA which is his statement to the police, the same is not stated therein. There is slight improvement in his statement before the court. However, it must not be forgotten that his evidence was recorded after a gap of one year and two months from the date of incident and that his testimony on material points is in consonance with the statement made before the police and is also not shaken in cross­examination. Under these circumstances, the improvement of a minor nature is not of much relevance. His testimony as regards covering the blood stains on the wall in the room with the help of pink water colour and then pasting the paper near almirah is also not demolished in cross­examination. Reading the entire evidence of this witness, it cannot be said that Afsar Karim PW4 had not seen the occurrence.

The contention of the counsel for the appellants that Afsar Karim, PW­4 was a tutored witness as there is delay in making his statement to police, as such appellants are falsely implicated has also been examined by us. The contention raised has no force. The witness has clearly stated that he had identified the dead body at Bus stop vide statement Ex.PW4/A on 14.02.2002. He has categorically deposed that he did not state to the police on the earlier occasion i.e., at the time of identification of dead body on 14.02.2002 due to fear and but, when the police had met his mother i.e., appellant on 14.02.2002 and interrogated her, he came out of his fear and he gave the statement to the police on 15.02.2002 at 12.00 noon in GTB Hospital. Justified reasons have been given by the witness in not narrating the incident earlier to the police. Further, his mother was involved in the case. He must have thought a number of times to reveal the truth to the police and when he gained courage, he narrated the incident. The child has deposed against his mother. There is a ring of truth in it. There is also not much delay as is alleged. The incident is of midnight of 13/14.02.2002 and he has stated to the police on 15.02.2002 at 12.00 noon at the mortuary. The contention of the appellants that he was SC No.220/10 Page 43/74 tutored in the meanwhile by his Khalu PW1 Adbul Karim is also not believable. Abdul Karim PW1 is the husband of appellant Shama Parveen's sister. It is not the case of the appellants that appellant Shama Parveen and her sister were having inimical relations or that Abdul Karim PW1 was having any animosity with his sister­in­law Shama Parveen and the appellant Tauhid Raza. Further, the manner in which Afsar Karim (PW4) has narrated the entire incident i.e., the repeated visits of Tauhid Raza in their house in the absence of his father, eating food there and asking Afsar Karim (PW4) to address him as his father, appellant telling Afsar Karim (PW4) not to tell about the visits of Tauhid Raza to his father and the role of both the appellants at the time of incident negatives the said contention.

It is well settled that a child witness if found competent to depose to the facts and if found reliable, his/her reliable evidence can be the basis of conviction. The only precaution which the court should bear in mind while assessing the evidence of a child is that the witness must be reliable and that there is no likelihood of the child having been tutored.

In the present case, it has come on record that at the time of the incident, Afsar Karim PW4 was 9 years of age and was a student of Class 5. At the time of deposition, he was 10 years of age. .........

.......... It is also not believable that on the alleged tutoring of his uncle i.e., Abdul Karim PW1 he will depose against his mother. As noted earlier it is not the stand of defence that Abdul Karim PW1 was having inimical relations with his wife's sister i.e., appellant Shama Parveen and appellant Tauhid Raza. No inherent serious defect is pointed out in the testimony of PW4. The child witness has stood the test of cross­examination. Under these circumstances, the contention of the appellant that he has been tutored by PW1 is rejected.

38. It was further observed in para 24 as under:

"As per evidence of Dr.Gaurav Vinod Jain PW­2 who has deposed having conducted the postmortem examination on the body of deceased on 15.02.2002 vide report Ex.PW2/A, the cause of death was shock due to hemorrhage produced by ante­mortem injury to the blood vessels by the sharp edged weapon. Injury no.21 produced by long cylindrical weapon was also sufficient to cause death in the ordinary course of nature like injury nos. 5 and 6. He has SC No.220/10 Page 44/74 also deposed that blood on the gauze, clothes, scalp hair in sealed parcel and sample seal were handed over to SI Tanvir Ashraf PW17. The fact that the postmortem report Ex.PW2/A shows that injury no. 21 was caused by long cylindrical weapon, which was also sufficient to cause death in the ordinary course of nature, supports the deposition of Afsar Karim, PW4 that he had seen Tauhid Raza hitting a cricket wicket on the head of his father."

39. The court went on discussing the evidence in paras 30 & 31, as under:

"From the evidence discussed above, it stands established that blood stains were found on the wall of the room in the house of deceased which were covered with five paper sheets seized vide memo Ex. PW13/E and before covering, the wall was painted with paint seized vide memo Ex. PW13/F. Five sheets of fancy papers Ex. P­5 which were pasted on the wall of the room to hide blood stains, broken wicket Ex.P­6, hair stuck on the wall, sample of concrete from the wall having blood stains which were seized vide seizure memo Ex. PW13/D were sent to CFSL for examination. As per expert's report Ex.PW 18/A which is proved on record by Mr.B.C.Purkait, PW­18, Junior Scientific Officer, CFSL, the same gave positive tests for human blood. The CFSL report Ex. PW18/C­1 of blood stained hair found on the wall of the room of Shama Parveen and scalp hair which were handed over to SI Tanvir Ashraf PW17 by Dr.Gaurav Vinod Jain PW2, were found to be of the same origin and also shows presence of blood group `B' which was the blood group of deceased.

The entire evidence discussed above categorically shows that incident had taken place in the house of the deceased. The above evidence also corroborates the evidence of child witness Afsar Karim PW4 that the incident had taken place in the house who has also deposed in detail the role of appellants in the murder of his father. There is no explanation by appellant Shama Parveen as to how blood stains were there on the wall of the room and as to why the same were covered with papers seized vide memo Ex.13/E."

40. Thereafter, the Hon'ble Court rejected certain evidences as unreliable.

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41. The Hon'ble Court, thereafter, discussed the conspiracy aspect as under:

"It is well settled that in the offence of criminal conspiracy, it is difficult to get direct evidence. It is a difficult task to prove the actual terms of conspiracy. Some prima facie evidence leading to a reasonable belief that two or more persons had conspired together is sufficient. Conspirators do not discuss their plans openly. Privacy and secrecy are its basic elements. Thus, conspiracy can be proved by the evidence of surrounding circumstances and conduct of the accused persons before the occurrence as well as after the alleged commission of offence. In the present case, as discussed above, the evidence on record clearly establishes that there was a criminal conspiracy between appellant Tauhid Raza and Shama Parveen to commit the murder of deceased. The learned defence counsel is not right in contending that the substantive offence of criminal conspiracy has not been established. There is a clear finding of the learned ASJ that the evidence on record establishes that there was criminal conspiracy between Tauhid Raza and Shama Parveen to commit the murder of deceased. There is no illegality if the separate sentencing is not recorded by the learned trial court.

In view of the above discussion, the contention of the learned counsel for appellants that appellants cannot be convicted under Section 302/201 with the aid of Section 120­B IPC is rejected."

42. I have deliberately almost reproduced the said judgments of the Hon'ble Superior Courts in order to establish that Hon'ble Judges have undertaken a meticulous exercise in appreciating the whole evidence on the record to weigh the reliability of the child witness. Secondly, though in two judgments of the Hon'ble Supreme Court, the accused were acquitted not relying upon the deposition of the child witness and in one judgment of the Hon'ble Supreme Court as well as in the said judgment of the Hon'ble High Court of Delhi, the SC No.220/10 Page 46/74 accused were convicted relying upon the testimony of the child witness, but there is no inconsistency in the law laid down by the said Hon'ble Higher Courts although they came to the different conclusions and despite the fact that said three judgments of the Hon'ble Supreme Court were yet not brought to the notice of the Hon'ble Division Bench of the Hon'ble High Court of Delhi. Thirdly, from the facts of the said four cases, it is quite clear and evident that facts of the present case before me are quite different although motive of the offence, as alleged in the case before the Hon'ble Supreme Court in Zafar's case (supra) and case before the Hon'ble High Court of Delhi and the present case before me, is the same i.e. illicit relations or extra marital relations of the mothers of the child witnesses due to which the fathers of the child witnesses were killed.

43. From the said four judgments and also from other judgments, as referred to in the said judgment of the Hon'ble High Court of Delhi, the undisputed law with regard to appreciation of the child witness is that evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. It has been further held that it is necessary to find out as to whether the evidence of child SC No.220/10 Page 47/74 witness is corroborated from other evidence on record and even in absence of Oath, the evidence of a child witness can be considered u/s 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof and that the evidence of a child witness and credibility thereof would depend upon the circumstances of the each case. It has been further held 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 there is no likelihood of being tutored. It was further laid down that while a child witness can often be expected to give out a true version because of his innocence, there is always the danger in accepting the evidence of such a witness that, under influence, he or she might have been coached to give out a version by persons who may have influence on her.

44. Judging in the light of the said law laid down by the said Hon'ble Higher Courts, let me scrutinize the deposition of the child witness PW9 and other evidence, both ocular and documentary, on the record of this case.

45. In the very beginning, this court has observed that PW9 was capable of giving rational answers to the questions after understanding the nature of the questions and there are some lapses SC No.220/10 Page 48/74 in his memory or shortage of I.Q. and maturity level is not such that he may be examined on Oath and that is how, the PW9 was examined without Oath, but this does not mean that his evidence cannot be appreciated or relied. Second important feature is that incident of murder took place on the night intervening between 24th and 25th August, 2005 and the examination in chief of the child witness was recorded on 26.05.2010 and he was further cross examined on 19.01.2011 and thus, almost a period of five years has lapsed before his deposition could be completed and at the time of incident, the child was aged about 9 years and at the time of deposition, he was 14 years of age. During this period of five years, his maturity level and cognitive faculties have certainly increased, which can be demonstrated by comparing his statement recorded u/s 164 Cr.PC on 05.09.2005 with the present deposition. For this, the reproduction of his statement u/s 164 Cr.PC is necessary, which is as follows:

      "Q.      In which school do you study?

      A.       Dynamic International School near Tehsil Building, Village Bawana.

      Q.       In which class do you read?

      A.       I am reading in first class.

      Q.       What is your father?

      A.       My father used to go on duty but I do not know the place.



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       Q.       Whether speaking truth is right or the lie?

      A.       Truth is right.

(Statement of Master Gaurav s/o Late Sh. Bijender, r/o H.No.788, Village Bawana, aged about 6 years, without Oath.) On 25th date, the day being Thursday, the month not known to me, I was sleeping on the bed inside my house. My mother, younger brother and my elder sister Manju were also sleeping on cot. My father was sleeping outside on the cot.

I woke up due to noise of firearm shot (Goli Ki Awaz). Dog was barking. My mother held the dog and made it keep quiet. My maternal uncle (Mama) was giving medicine to the dog. There was another person with my maternal uncle who was not known to me and they had come jumping from the boundary wall and went away from the said boundary wall. I had seen this from the net (Jali) of the gate. I had seen a Bandook (its English translation is Gun but the witness may not have used the word in that sense but in the sense of a firearm which is manifest from his further statement) in my maternal uncle's hand.

      Q.       How the gun look like?

      A.     Small. (pointed out by the gestures of his hand which came to be about 
      8­10 inches.)

      Q.       If it was Bandook (Gun) or Pistaul (the pistol)?

      A.       Bandook (gun).

Blood oozed out from the head of my father. I did not speak due to fear because he would have killed me."

46. Now, in the deposition before the court, he has changed the version that he woke up due to hearing the noise of barking of their pet dog and noise of firearm shot is missing as a reason of his SC No.220/10 Page 50/74 awakening on the night of the incident in the deposition before the court. Further, he has totally improved his version with regard to the third person, which he claims to be accused Puran, firing at his father right side temple region, which is totally missing from his previous statement u/s 164 Cr.PC. Again he has improved his deposition by saying that after firing his maternal uncle and the said third person went inside the bathroom, which is totally missing from his said previous statement. Further, the facts that his mother thereafter came inside the room and the room was bolted from outside by the other accused and that he did not raise any alarm out of fear, as his mother had asked him not to disclose this fact to anyone, are totally missing from his said previous statement. In his previous statement, the concerned Magistrate, while recording the statement, noticed his gesture of showing the description of the Bandook and came to the conclusion of its being of 8 or 10 inches but this court observed the said length as one feet from the same gestures of the child witness. Again, the net of the gate from which he allegedly saw the incident, is missing from his examination in chief recorded before the court.

47. Said variations, discrepancies, improvements and omissions in the said two statements of the child witness go to establish beyond doubt that not only he has explained the things but filled up the lacunas also left in his previous statement when he appeared in the SC No.220/10 Page 51/74 witness box before the court. If we rely on his previous statement, he is not an eye witness of the incident of accused Puran firing a bullet shot at the deceased because he woke up when he heard the noise not only of the firearm shot but also of dog barking and that was why, he saw the gun in the hands of his maternal uncle, although he has tried to improve and explain in his cross examination, after changing his stands, that he saw the gun in the hand of maternal uncle but shot was fired by accused Puran.

48. Admittedly, the incident occurred on the night intervening between 24th and 25th August, 2005 and the said statement of the PW9, u/s 164 Cr.PC was recorded on 05.09.2005. In the entire evidence on the record, there is no explanation at all with regard to getting his statement recorded after such a great delay. The delay not only remained unexplained but the answers given in the cross examination by the child witness as PW9 are fatal to the prosecution case supported by said unexplained delay. He has admitted in his cross examination that his elder sister Manju was sleeping in the same room but he did not tell the incident to his sister Manju nor he disclosed this fact to his uncle Satya Narain, who was admittedly sleeping in the adjoining room. He further answered that he disclosed the incident to his great uncle (Tau Ji namely Baljeet Singh, the complainant) in the afternoon and he further answered that police came on that day but they did not inquire anything from SC No.220/10 Page 52/74 him. He categorically answered that he told about the facts of incident to the police on that day. Neither by the witnesses namely Manju (though not produced in the witness box), Satya Narain (the uncle residing in the adjoining room), the great uncle Sh. Baljeet Singh, nor by the police officials including the IO, it has been explained as to what stopped them in recording the statement of PW9 then and there on 25.08.2005 itself or taking him before a Magistrate soon after the said date for getting his statement recorded, particularly in view of the claim of PW9 before the court that he disclosed the incident to Baljeet Singh in the afternoon and to the police on the same day. Surprisingly, even there is no whisper in the deposition of Baljeet Singh, who appeared as PW6, that he informed the police that PW9 was the eye witness of the incident or that PW9 had informed him regarding the incident and his statement may be recorded by the police. Similarly, if we believe the answer given by PW9 that he narrated the incident on the same day to the police also, all the police officials including the IO are silent on this aspect as to what stopped them in not getting the statement of the PW9 recorded at the earliest. Even it is not mentioned in the deposition of any of the police officials as to when they came to know that the child witness PW9 was the eye witness of the incident and from whom. PW15, SI Jai Kishan, who was instrumental in getting the said statement u/s 164 Cr.PC recorded, merely deposed SC No.220/10 Page 53/74 that on 05.09.2005, he got recorded the statement of the minor witness namely Master Gaurav u/s 164 Cr.PC.

49. Coming to the issue of the place from where the PW9 allegedly saw the incident and that too at about 2.30 a.m on 25.08.2005. In his alleged earliest version, as deposed by him in his previous statement u/s 164 Cr.PC Ex.PW9/A, he saw the incident from the net of the gate. This fact is missing from his examination in chief deposed before the court. In the site plan without scale Ex.PW16/A, prepared by the IO on 25.08.2005 itself, of the spot, only one point as Mark X has been shown where dead body was lying on a folding cot. Two inferences can be drawn easily from this site plan that IO did not show the place or the situation or the position of the eye witness PW9 in the same and the other inference is that the IO was not knowing the fact that there was an alleged eye witness at all of the incident at the time of preparing the said site plan. Even the rooms or other portions of the house were not marked although the portions have been shown by diagram but whether the portion shown in the diagram is a room or a kitchen or a corridor or any other portion of the house, has not been shown at all in the said rough site plan, making it doubtful as to whether PW9 was at all present at the spot or not.

50. Coming to the scaled site plan, the position of the pet dog was SC No.220/10 Page 54/74 not at all shown in the scaled site plan Ex.PW11/A which, as per cross examination of PW9, was tied in the courtyard near the bathroom. In the scaled site plan, point B has been shown as the place from where PW9 saw the incident but there is no mention of any "net" (jali) so as to corroborate the deposition of PW9 that he saw the incident from the net of the gate. Further, where is that gate in which the net was fixed, again has not been mentioned in the said site plan. It is again surprising that despite fully knowing the fact that uncle of the PW9 namely Satya Narain was in the adjoining room, IO or the draughtsman did not show as to which room belonged to the said uncle Satya Narain. There is a passage between one room and kitchen leading to another room situated towards the Southern end of the corridor, was not at all shown in the site plan Ex.PW16/A. Another noticeable feature of the scaled site plan Ex.PW11/A is that a point "C" has been shown which is outside the premises of the house where there was an electric pole situated which has probably been shown as the source of light for the eye witness PW9 in the light of which he allegedly saw the incident and inside the premises, no source of light was shown and we do not know the exact distance between point "C" and point "A" and "B" so as to say that there was sufficient light at the fag end of the night wherein the PW9 allegedly could have seen the occurrence from point "B" and that too up to a minute observation of PW9 that the SC No.220/10 Page 55/74 pet dog was being administered some medicine by the accused. The spot of the incident was allegedly pointed out on 19.09.2005 by PW6 Baljeet Singh to the draughtsman PW11, in the presence of the IO, but PW6 Baljeet Singh nowhere mentioned in his examination in chief that he showed the spot to the draughtsman for preparation of the scaled site plan. The case of the prosecution is that statement of PW9 u/s 164 Cr.PC was already recorded on 05.09.2005 and as such, no explanation is coming forth as to why PW9 was not present at the spot so as to point out his position as an eye witness and other details so as to prepare the said site plan. PW11, the draughtsman, further answered in his cross examination that there was no hindrance of door at point "B" and it was an open passage and he did not remember if there was a door in the room opposite kitchen shown in the site plan. Point "B" is the Northern end of the passage and at the corner of adjoining room and if this is the place from where PW9 witnessed the occurrence, it is difficult to believe the story of PW9 that he was inside the room when he saw the incident, as deposed by him before the court. Not taking the PW9 at the spot, which was not new to him being his own house where he was familiar and could have been at ease and where he could have been without any pressure, creates a doubt about his being an eye witness and the persons responsible for complaining the incident and investigating the incident were afraid of the fact that PW9 may not SC No.220/10 Page 56/74 be in a position to point out the different spots to the draughtsman. This is the only inference which can safely be drawn from the said two site plans and surrounding circumstances.

51. A living organism i.e. the pet dog, could have been a better piece of corroboration to the deposition of PW9 but the IO even did not take care to at least have a photograph of the pet dog on the record so that the same could have been put to the PW9 to identify the dog as their pet dog. It is further difficult to swallow that the pet dog was being administered some medicine but neither PW9 nor any other witness nor the IO established the consequence of the same. Was the medicine administered to the dog to keep it silent or to kill it, so that he may not interfere in achieving the desired result by the accused. What was the basis with PW9 to say that the dog was being administered a "medicine" only and nothing else? Further, in the statement u/s 164 Cr.PC of PW9, if his mother had already held the dog and kept it mum then what was the need of administering medicine to the dog by his maternal uncle and the fact that his mother made the dog silent is missing in his examination in chief. If the medicine was administered to the dog in order to eliminate it or kill it, this fact has not been investigated nor any consequence of administering the medicine to the dog has been placed on record by way of evidence either in oral deposition of the witnesses or by some other object evidence or documentary evidence, such as, SC No.220/10 Page 57/74 photograph etc of the dog, whether alive or dead. A great suspicion has arisen with regard to the presence of the dog at the spot or its alleged barking and if we believe the testimony of the child witness PW9, as per which the dog was tied in the courtyard near the bathroom, there was every possibility of the deceased who might have awakened if the pet dog had barked in the same manner in which PW9 has awakened, as claimed by him in his deposition. The circumstances are suggesting that story of the barking of dog, holding it by the accused Sushma and administering it with some medicine by accused Subhash, has been concocted in order to make the deposition of PW9 foolproof. This also explains as to why there is a discrepancy in the two versions of PW9 with regard to the reason as to why he awoke at 2.30 a.m on the night of the incident i.e. the one mentioned in his statement Ex.PW9/A wherein he referred both the reasons of noise of fire shot as well as barking of the dog for his awaking and in his deposition before the court wherein he awoke after hearing the noise of barking of the dog and there is no mention of the noise of firearm shot.

52. Up to this stage, the case before the Hon'ble High Court of Delhi titled Shama Parveen Vs. State (supra) could be very well distinguished from the facts of the present case where there was a little delay in recording the statement of the child witness in comparison to the lapse of time of the present case and that the place SC No.220/10 Page 58/74 from where the child witness saw the incident in the said case, was specific and clearly established and even one of the accused interacted with the child witness Master Afsar Karim who was not allowed to go to urinate downstairs and was commanded by the accused to urinate in the verandah itself, but there is no such specification of the place or interaction with the accused of the child witness in the present case.

53. Coming to the aspect of motive of the accused in killing the deceased, which has been alleged by the prosecution that accused Sushma was having illicit relations with accused Sandeep (juvenile) and for this reason there was a quarrel between the deceased and accused Sushma and deceased was not even paying her household expenses and in order to get rid of the deceased, previously also accused Sushma tried to administer poison to the deceased. For the prosecution, the said illicit relation was a talk of the day in the entire village of the deceased. PW2 Satya Narain, real brother of the deceased, is silent about any such illicit relation or talk of any such relations, in his deposition and he simply deposed that he identified the dead body of his brother. It is the same Satya Narain who is admittedly residing in the same premises where the deceased was living and murdered. PW4 Krishan, a neighbour, is hostile to the prosecution on this aspect. PW6 Baljeet Singh, the complainant, deposed that accused Sushma also administered some poison to her SC No.220/10 Page 59/74 husband before his murder and due to the said reason his brother Bijender was not taking the food at his residence and said poison was administered about one month ago from the date of incident of the present case and for this reason, accused Subhash, the brother of accused Sushma and one Raju used to quarrel with the deceased and he further deposed that the deceased was not paying the household expenses to his wife Sushma and that was one of the reasons for quarrel between them and that was why both brother and sister namely accused Sushma and Subhash hired a professional killer, accused Puran and hatched a conspiracy to kill the deceased. PW8 Dinesh deposed that there was talk in the entire village about illicit relationship between Sushma and Sandeep and one and a half month prior to the murder of Bijender, Sushma also had attempted to kill Bijender by giving him the poison and thereafter Bijender used to remain frightened and used to say that his wife would certainly get him killed one day. He further deposed that in his statement to the police he got recorded that they were not surprised after the murder of Bijender because they were certain that he would be killed and he further got recorded in his statement to the police that Sushma and Sandeep got the Bijender killed.

54. The distinguishing feature of this case is that alleged motive has not been deposed by the alleged eye witness PW9. In the said case before the Hon'ble High Court of Delhi, it was PW4 Master SC No.220/10 Page 60/74 Afsar Karim, who established in great details regarding the illicit relation of his mother with the accused when he deposed that accused was even asking him to call the accused as "Papa" (the father). The features of the said case before the Hon'ble Court of Delhi were that witnesses saw both the accused roaming around together, taking food together, meeting of both the accused at the house of the deceased in the absence of the deceased and taking food in the house of the deceased offered by the female accused (the mother of the child witness) and frequent meetings of both the accused, which is totally missing in the present case, no witness has deposed that anybody saw accused Sushma and Sandeep even together at any point of time. As per prosecution case, the villagers were not surprised at the murder of the deceased as he was bound to be murdered by his wife, who had earlier also given poison to the deceased i.e. her husband and same is the deposition of PW6 as well as PW8 to that effect. Surprisingly, the whole of the village was waiting for the death of the deceased including the deceased himself and none of them took any legal action against such a desperate wife, like the accused Sushma, who was bent upon killing her husband due to her alleged illicit and extra marital relations with the accused Sandeep. She gives poison to the deceased earlier and still continued to remain in the same house with the deceased. Neither deceased nor any of his brothers nor any of the villager reported the SC No.220/10 Page 61/74 matter to the police against alleged attempt of administering poison by her to the deceased. No legal action was taken for the protection of the deceased against his desperate wife Sushma. Similarly, accused Sandeep, who is a juvenile, was also not set right by the villagers so that he may refrain from or he may be restrained from entering into criminal conspiracy to kill the deceased.

55. There is yet another aspect in the present case qua the motive of the accused Subhash, who is the brother of accused Sushma and this is admitted fact that both the parties i.e deceased as well as accused Sushma and Subhash, were belonging to the village community and I can understand that if there is a matrimonial dispute between accused Sushma and her husband, the parental side relatives of accused Sushma are supposed to help her in solving her grievances against her in laws. But, the strange deviation in the present story is against the village culture in Indian society in which the villagers are accustomed to live and act and story of the prosecution is that a brother i.e. accused Subhash, was helping his sister in achieving her illegal design of her alleged illicit relations with accused Sandeep and a brother is helping his sister i.e. accused Sushma, to achieve the company of accused Sandeep and continue with her illicit relations with accused Sandeep to the extent of killing the husband of accused Sushma, who is his own brother in law and in a situation where three children have born out of the said wedlock SC No.220/10 Page 62/74 between accused Sushma and the deceased. A brother is helping his sister by ruining her family in the manner as has been given to understand to us in the prosecution story. I must not be misunderstood that such things cannot happen, but a particular fact is to be weighed within the given circumstance, situations, society, social behaviour, customs and rituals prevalent in a given community and from this point of view, it is very difficult to believe and the same is highly improbable that a brother would help his sister in getting her illicit relations achieved by eliminating the legitimate relations. Thus, the prosecution has miserably failed to establish the alleged motive of the accused for killing the deceased.

56. Coming to the aspect of tutoring of the child witness, PW9, and the word "tutoring" in the sense of becoming a witness is a wider expression and having so many connotations. One of such connotations has been mentioned by the Hon'ble Supreme Court in the judgment State of Bihar Vs. Kapil Singh (supra) that minor might have been coached to give out a version by persons who may have influence on him or her. Another reason for tutoring a child witness may be the enmity and taking revenge for the same, a child witness may be deputed to depose on a particular line taking advantage of the fact that child happens to be either present or sleeping at the spot at the time of incident. The remarkable judgment is of the Hon'ble Supreme Court in this regard in Bharvad SC No.220/10 Page 63/74 Bhikha Valu's case (supra) wherein there was a long standing enmity between the two communities and the child witness and the deceased being his father belong to one of the community and the accused belonging to another community, yet the deposition of the child witness was not held as tutored because the same found corroboration not only from the weapons recovered but from the medical evidence also and Hon'ble Supreme Court discarded all other witnesses who were belonging to one community or the other holding them as inimical witnesses to the other community to which the accused belonged. The example of the influence on the child witness is demonstrated in the case titled State of Bihar Vs. Kapil Singh (supra) and the accused were acquitted not believing the deposition of the child witness. In Zafar's case (supra), Hon'ble Supreme Court, commenting upon the delayed recording of the statement of the child witness, for which there was no explanation by the prosecution, observed "were they trying to project PW2 (the child witness) as an eye witness, having failed in their attempt to get direct evidence of others?"

57. Hon'ble High Court of Delhi, in the Shama Parveen's case (supra), ruled out the possibility of tutoring the child witness because he was in the custody of mother's sister's husband (Khalu) and said husband of the sister of the accused mother was having no enmity or adverse interest with the accused mother in the said case SC No.220/10 Page 64/74 and there was a little gap of time between the incident and recording of the statement of the minor which also ruled out the possibility of tutoring.

58. In the present case, tutoring and projecting of PW9 is highly probable particularly in two circumstances. It has already come on record that the villagers including the complainant PW6 and PW8, were allegedly having a preconceived notion that deceased would be killed one day by accused Sushma who has already tried to administer poison to the deceased sometime ago due to which the deceased was under threat and was living under constant fear even to the extent that he was not taking food at his house and illicit relations between accused Sushma and juvenile accused Sandeep were the talk of the day in the whole village and ultimately, one day the deceased was killed, giving easy way to the said villagers including PW6 and PW8, and other brothers of the deceased to eliminate accused Sushma and her brother accused Subhash who was agitating for the rights of accused Sushma as wife, against her non caring husband, by projecting PW9 as the alleged eye witness of the incident thereby killing two birds with one stone in the sense that they may not be taken as the persons who were responsible for implicating the accused in the present case because the own child of the accused was deposing against them and at the same time, they may get rid of an alleged nagging lady in their family i.e. the SC No.220/10 Page 65/74 accused Sushma. Yet another aspect of the matter is as to whether it was a blind case of murder and to allegedly solve the blind murder easily, even investigating agency was interested in projecting PW9 as a child witness and from this point of view, this case is fully covered within the facts and ratio of the Zafar's case (supra) decided by the Hon'ble Supreme Court. PW15, SI Jai Kishan, who took PW9 for getting his statement recorded u/s 164 Cr.PC, has categorically answered that he had informed one day prior to the family of Master Gaurav about recording his statement before the Magistrate and on the following day, the complainant Baljeet Singh accompanied the minor to the court for getting his statement recorded u/s 164 Cr.PC. It has further been established by way of cross examination of PW9 that complainant Baljeet Singh, his great uncle, was always accompanying him to the court at the time of his deposition also. It is also not disputed that after the death of his father i.e. the deceased in the present case, and his mother accused Sushma remaining behind bars, the minor witness PW9 remained in the custody of grand parents and younger brother of the deceased namely Surender Singh. The tutoring aspect of PW9 is further reflected by certain answers given in the cross examination, such as, that the PW9 answered that his statement Ex.PW9/A (u/s 164 Cr.PC) was recorded after about one year of the incident. We know that it was recorded on 05.09.2005, after about 11 days, but since the SC No.220/10 Page 66/74 child could not have been trained to answer about the same fact regarding which a question may be put to him in a different manner that such an answer resulted from the mouth of the child. Similarly, PW9 submitted that he did not make the statement before the Magistrate in Ex.PW9/A that he saw the gun in the hands of his Mama (maternal uncle accused Subhash) but he again said that he saw the gun in the hand of Mama but shot was fired by accused Puran. He further volunteered that whatever he saw, he was deposing and this volunteered portion came after a suggestion was put to him to which he denied that he was deposing under tutoring. These aspects go to show that PW9 was coached in such a manner that whenever a question or suggestion would be asked regarding his tutoring, he has to answer "whatever I saw, I am deposing". Thus, I am of the considered opinion that tutoring of the PW9 on behalf of PW6, PW2 Satya Narain, grand parents and other brothers of the deceased, could not be ruled out, in the company of which PW9 has admittedly remained after his mother accused Sushma was put behind the bars.

59. The conduct of two witnesses deserves a special mention, whose deposition as piece of circumstantial evidence in the case has been used by the prosecution and at the same time, they also failed to corroborate the deposition of the child witness PW9, if at all we rely on the deposition of PW9. PW6 Baljeet Singh, the complainant, SC No.220/10 Page 67/74 who was admittedly residing separately for last 3/4 years from the deceased and his house was admittedly situated after 3­4 houses of the house of deceased, has allegedly heard two sounds of bursting of some tyre or fire at 2.30 a.m but PW2 Satya Narain, who, as per admission of the child witness PW9, was present in the adjoining room on the said night of incident and the door of whose room opened in the courtyard, as admitted by PW6, PW9 and the IO of the case, did not hear any sound of any bullet shot or tyre bursting. Further, PW6 Baljeet Singh, is happily deposing about previous poisoning of the deceased at the hands of accused Sushma due to which the deceased was not taking food at the residence and on 24.08.2005, accused Subhash visiting the residence of the deceased at 12 noon and stayed there for five minutes and left and deceased was also not paying the household expenses to his wife Sushma which was also the reason of quarrel between them, Sushma selling her gold chain prior to the murder of Bijender and handed over the sale proceeds of the chain to accused Puran, a deal finalized for Rs.1.5 lacs for committing the murder of the deceased and accused Sushma paying a sum of Rs.50,000/­ to accused Puran for committing murder and accused Puran was a tenant at the house of Subhash and it was accused Subhash who hired Puran for committing the murder of his brother and they both visited the house of the deceased for committing the murder, but PW2 Satya Narain, SC No.220/10 Page 68/74 who was residing along with the deceased is silent about all these things. PW Satya Narain even did not speak as to what was the talk of the day regarding the illicit relationship of accused Sushma with juvenile accused Sandeep, which is at least spoken by PW8 Dinesh, a neighbour and admittedly a relative of the deceased. PW6 Baljeet came to know of the murder of the deceased at about 6.30 or 6.40 a.m and he visited the house of deceased and inspected the dead body and noticed wound behind the left ear and blood was oozing out and the bed sheet, dari, pillow, were noticed by him as bloodstained and he even noticed a big hole in the mosquito net but PW2 Satya Narain did not depose any such thing before the court in his deposition. In these circumstances, it is very difficult to believe that all the villagers were knowing about the said illicit relationship but PW2 Satya Narain, real brother of the deceased, residing in the same premises, was not knowing about the said illicit relationship and about the circumstances in which the deceased was killed and he even did not know about the murder of his brother but knows only about death of his brother when he deposed that "on 25.08.2005, he came to know about the death of his brother Bijender and he reached at his residence when the dead body of his brother was lying and he identified the same to be of his brother Bijender and police officials recorded his statement to this effect". If PW2 was not present on the night of incident, then the deposition of PW9, the child witness, is SC No.220/10 Page 69/74 washed away so far as any corroboration is concerned. The PW6, Baljeet, acted as an active agent whereas PW2 Satya Narain remained passive and both could not corroborate the deposition of PW9, who was admittedly claiming that he informed the incident to PW6 on the same day and even PW2 was present in the adjoining room in the same house on the night of the incident.

60. From the point of view of accused Puran, PW9 did not join TIP to identify him due to fear as the alleged reason. I am conscious of the fact that TIP is not a substantive piece of evidence but it just lends support to the identification of an accused by a witness in the court of law. If the witness has ample time during the commission of the crime to see and observe the accused, such as, in the rape or dacoity cases where the face of the accused must have been imprinted in the mind of the witness, there is no need of conducting a TIP and first time identification in the court has been held as sufficient. But, at the time of dead end of night, in a doubtful situation of having sufficient light, the accused not known to the witness previously, the witness having only fleeing glimpse of the accused during the commission of the crime and particularly in the situation of the present case, I am of the considered opinion that accused Puran should have been put to the TIP from PW9. The alleged reason of child witness being terrorized, as has been deposed by the IO PW19, has no legs to stand because accused Puran was SC No.220/10 Page 70/74 admittedly arrested on 12.08.2006, much after the incident and the other accused were already in judicial custody, the statement of the PW9 u/s 164 Cr.PC was already recorded and he was in full care and custody of his father's side relatives and he could have easily procured the protection of the police also. In these circumstances, identifying accused Puran after a lapse of five years and that too for the first time before the court, carries no value in the eyes of the law. Remaining allegations against the accused Puran that he agreed to kill the deceased for a sum of Rs.1.5 lacs out of which he allegedly received Rs.50,000/­ from accused Sushma, who arranged the said money by selling her gold chain, are nothing but a confessional statement of the accused which is inadmissible in evidence and otherwise there is no eye witness to selling of the gold chain, handing over of Rs.50,000/­ to accused Puran or accused entering into an agreement to kill the deceased for a consideration of Rs.1.5 lacs nor there is any recovery in pursuance of the said disclosure statement nor there is recovery of the weapon of offence at the instance of the accused also. PW17 Bijender, who was cited as the witness for proving the extra judicial confession of accused Puran having committed the murder of the deceased, has turned hostile and did not support the prosecution. Accused Puran has been alleged as hired or a professional killer but no previous involvement in any kind of offence even could be established against him in order to SC No.220/10 Page 71/74 show him as such a hired killer.

61. Even otherwise, there is no corroboration at all of the deposition of PW9. It was contended by Ld. Addl. PP that deposition of PW9 that the deceased was killed with a firearm shot is corroborated by the autopsy report Ex.PW10/A but I do not find any force in this contention. Corroboration of a fact must either by contemporaneous or prior in time. The autopsy was conducted on 25.08.2005 wherein it was observed that deceased died due to the projectile firearm injury and thus, this fact was already known to all who were concerned with the case and the investigation and statement u/s 164 Cr.PC of PW9 was recorded on 05.09.2005 at a belated stage giving every chance to concoct the statement as per opinion of the autopsy surgeon. I could have understood that if the statement of the eye witness would have been recorded on the same day on which the autopsy was conducted, that it was a corroboration of facts to each other but if a fact is already known to a witness or there are circumstances of the knowledge of the witness of a fact already come on the record, then deposing in the same manner cannot be termed as corroboration in the strict sense of the term. Further, the facts which would have corroborated the deposition of PW9, such as, PW6 Baljeet Singh deposing in his examination in chief that PW9 had already told him regarding the incident on 25.08.2005 itself, the proving of presence of the pet dog at the spot, SC No.220/10 Page 72/74 the net of the gate through which PW9 saw the incident, earliest recording of his statement, TIP of accused Puran, recovery of firearm, admittedly are missing and there is thus, a bald statement of PW9 allegedly having seen the incident, which cannot be believed in the said circumstances. Failure of the accused to give an adequate explanation for their implication in the present case is no ground to hold them as guilty of the offence because it is for the prosecution to establish the case against the accused beyond reasonable doubt. Moreover, as per IO PW16, in his cross examination, admitted that there were property disputes in the family and Satya Narain, PW2 and Baljeet PW6 were sent to jail in a murder case and this was also admitted by PW8, PW9 and in these circumstances, PW6 having his own grudge, against accused Sushma being the wife of the deceased, one of the shareholder of the property, cannot be ruled out.

62. I am conscious of the law that conspiracies are hatched in secret and hardly any direct evidence is available to prove the same and the offence of conspiracy is to be deduced from otherwise established facts and circumstances. From the said facts and circumstances, which I have discussed, even existence of conspiracy among the three accused can not be deduced because the very said facts and circumstances are in doubt and could not have been said to have been proved beyond reasonable doubt and particularly the points discussed by me above with regard to accused Puran, who SC No.220/10 Page 73/74 allegedly carried out the object of the conspiracy.

63. In view of my above discussion, I am of the considered opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt and deposition of child witness PW9 is difficult to be believed and is not free from suspicion in the said circumstances and does not find corroboration from any other fact established on record. As such, the accused are given benefit of doubt and are acquitted of the charges u/s 302 and 120B of the IPC. PB and SB of accused Sushma are hereby discharged and accused Subhash and Puran be set at liberty forthwith, if not wanted in any other case. The file be consigned to the Record Room.

(Announced in the open court on 28.02.2012) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.220/10 Page 74/74