Punjab-Haryana High Court
Devender Alias Vikki And Another vs State Of Haryana on 12 January, 2009
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Daya Chaudhary
Crl. Appeal No.227-DB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.227-DB of 2005
DATE OF DECISION: JANUARY 12, 2009
Devender alias Vikki and another
.....APPELLANTS
Versus
State of Haryana
....RESPONDENT
CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
---
Present: Mr.Bijender Dhankar, Advocate,
for the appellants.
Mr.Partap Singh, Sr.DAG, Haryana.
..
SATISH KUMAR MITTAL, J.
Accused Devender alias Vikki and Pardeep (hereinafter referred to as `A1 and A2') have filed this appeal against their conviction and sentence by the Additional Sessions Judge, Sonepat vide judgment dated 31.1.2005, for committing the offence under Sections 302 read with Section 34 IPC, 449 and 324 read with Section 34 IPC in Sessions case No.51 of 2003 arising from FIR No.231 dated 31.12.2002 under Sections 449/302/324/34 IPC and Section 25 of the Arms Act registered at Police Station Sadar, Sonepat. Both the accused were sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each under Section 302 read with Section 34 IPC; rigorous imprisonment for seven years and to pay a fine of Rs.1000/- each under Section 449 read with Section 34 IPC; and rigorous imprisonment for one year and to pay a fine of Rs.500/- each Crl. Appeal No.227-DB of 2005 -2- under Section 324 read with Section 34 IPC. A1 has also been convicted under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-.
In brief, the aforesaid FIR was registered on the basis of the statement of a minor child Ajay aged about 11 years (son of deceased Bhanmati) made before the police at 8.30 a.m. in the hospital where he was admitted due to injury caused on his person. In his statement, he had stated that on 30.12.2002, he and his mother were sleeping in their house by locking the door from inside. At about 1.00 a.m. in the night, he heard the noise of his mother. Then he woke up and saw that accused A1 and A2 were grappling with his mother. He saw that A1 by taking out the knife from his pocket inflicted 6-7 blows in the stomach and breast of his mother. A2 was holding the hands of his mother while A1 was giving knife blows to his mother. When he tried to rescue his mother, A1 also gave knife blows to him. He and his mother fell down. Thereafter, both the accused fled away with the knife through the window from where they had entered in the house by breaking the same. He further stated that he remained hidden due to fear. At about 5.00 a.m., when the milkman Gola alias Surender called them for milk, then he opened the door and came out and disclosed that both the accused had murdered his mother with knife. Thereafter, several persons gathered. His father Satpal, who was working as Pujari in a temple at Gohana, also came, and he (minor Ajay) was taken to General Hospital, Sonepat where his statement was recorded by the police.
Regarding motive, in his statement, minor child Ajay stated that a day before the occurrence, i.e., 30.12.2002, both the accused came to their house at 4.00 p.m. and untied the buffalo (Katri) and when his mother Crl. Appeal No.227-DB of 2005 -3- had gone to make a complaint for showing her resentment, then both the accused ran to hit his mother. He also stated that about 1-1/2 months ago, both the accused had also encroached the land of their fields by cutting the "dhol" and for said act, Baljit, father of A2, begged pardon from his father Satpal, therefore, they did not make any complaint.
When aforesaid minor Ajay, who later on was examined as PW1, was admitted in the hospital, the doctor sent a ruqa (Ex.PN/1) to the police. Thereupon, the police reached the hospital and after obtaining the opinion of the doctor about the fitness of the patient, recorded the above statement of minor Ajay, on the basis of which, the aforesaid FIR (Ex.PA/1) was registered on 31.12.2002 at 10.35 a.m. Dr.Varsha (PW10) examined injured minor Ajay. She found a cut injury measuring 2 cm x 1 cm on the left side of the scapular region of the back of injured Ajay. She found that corresponding cut was also present on the sweater and T-shirt. The fresh bleeding was also present. She opined that the injury might have been caused by a sharp edged weapon. The duration of the injury was opined within twelve hours. On the same date, i.e., 31.12.2002 at 12.30 p.m.,the post-mortem of the deceased was conducted by Dr.Arun Garg (PW12). He found the following injuries on the person of the deceased:-
"1. An incised wound with clean cut margins 5 x 1.5 cm. in the third intercoastal space, horizontally placed in the parasternal region, bone deep with clooted blood in the wound and subscupataneous tissues.
2. A stab wound with clean cut margins vertically placed in the left parasternal region, close to the sternal, 7 x 3 cm, extending from third intercoastal space, towards 6th rib. On exploration, the wound was going directly into the left ventrical. The caricardium was cut and contained blood. The heart was hearty 4th, 5th and 6th ribs were cut.Crl. Appeal No.227-DB of 2005 -4-
3. A stab wound measuring 7 x 2 cm in the epigastic region going into the left lock of the liver with blood in the peritoneal cavity near the liver.
4. A stab wound 2 x 1 cm. in the abdomen, vertically placed midway between the xiphisternal and umbicus going into the abdominal cavity after piercing the peritooneum.
5. A stab wound 3 x 2 cm. in the left iliac fossa with intestities coming out of the wound. Abdominal cavity contained blood."
In his opinion, the probable time between the injury and death was within few minutes and between death and post-mortem was within 24 hours. Further it was opined that the cause of death of the deceased was shock and haemorrhage as a result of multiple injuries which were ante-mortem in nature and sufficient to cause death in normal course of life.
During the investigation, both the accused were arrested. On the disclosure statement made by A1, the police recovered the knife (Ex.P3). The clothes and shoes of A2 were also recovered by the police on his disclosure statement.
After completion of investigation, on the basis of the material/evidence collected during the investigation, the challan was filed. The trial Court framed the charges against both the accused under Sections 449, 302, 324/34 IPC and Section 25 of the Arms Act. The accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined 12 witnesses and also led certain other evidence. In their statement under Section 313 Cr.P.C., both the accused claimed to be innocent. However, they pleaded that the deceased was got murdered by her husband and his younger brother Rajinder Singh, and they have been falsely implicated in the case due to minor altercation between the husband of the deceased and Crl. Appeal No.227-DB of 2005 -5- Baljit (father of A2). However, in defence, no witness was examined by the accused. The trial Court, after considering the evidence led by the prosecution, particularly relying upon the medical evidence and the statement of PW1-Ajay and other corroborative evidence led by the prosecution, convicted and sentenced both the accused, as stated in para 1 of the judgment. Hence, this appeal.
Learned counsel for the appellants submitted that the presence of minor Ajay (PW1) at the time of the alleged occurrence in the house was doubtful. He submitted that on the date of the alleged occurrence, as stated by this witness, his eldest brother was at Ghaziabad as he was studying there and younger brother had gone to his maternal uncle due to holidays. However, only he along with his mother was present in the house. Learned counsel submitted that when every member of the family was out, then his presence at the house was highly doubtful. Learned counsel, while referring to the statement of this witness, submitted that in his statement the minor had admitted that when the alleged occurrence had taken place, there was no light in the room as the accused had disconnected the electricity wire, then how this witness had seen in darkness that A2 was holding his mother with his hands and A1 was inflicting knife blow to her. Learned counsel further submitted that this witness has explained that accused A1 had lighted a match-stick and in that light, he had recognized the accused. Learned counsel submitted that in the dark it was not possible to see the occurrence. And as far as recognizing the accused in the light of match-stick is concerned, that portion of the statement is an improvement as no such fact was stated by the said witness before the police. Therefore, from the statement of this witness, it is not proved that A1 and A2 had committed the Crl. Appeal No.227-DB of 2005 -6- alleged crime.
Learned counsel for the appellants further pointed out that this witness has further made improvement in his statement that he told the police that at the time of the alleged occurrence he grappled with A2, and at that time both the accused were drunk, whereas he has not so stated before the police. According to the learned counsel, these facts further show that this witness was not trustworthy, and actually he was not present at the time of the alleged occurrence. Learned counsel submitted that this witness was planted and tutored as there was enough time available for that purpose before his statement was recorded by the police. Therefore, on the basis of the testimony of this child witness, it is not safe to convict both the accused for the alleged offence of murder of Bhanmati. In support of his contention, learned counsel for the appellants placed reliance upon the decision of the Supreme Court in State of U.P. v. Ashok Dixit, 2000(1) RCR (Criminal) 841, wherein it has been held that the uncorroborated version of a child witness, when there are major contradictions in his statement, could not be relied upon to convict the accused.
Regarding A2, learned counsel for the appellants submitted that he was not at all present at the time of the alleged occurrence and was falsely implicated. Learned counsel further submitted that if as per the statement of PW1-Ajay, A2 had caught hold his mother and when A1 was inflicting the knife blows to her, then in all probability A2 might have sustained blood stain on his clothes. But no blood stain was found on the clothes of this accused, which were recovered on his statement. He further submitted that in this case during investigation the police had prepared recovery memo of mould of shoes of both the accused. However, as per the Crl. Appeal No.227-DB of 2005 -7- FSL report, only the mould of shoes of A1 was tallying. Therefore, this fact also indicates that A2 was not present at the time of the alleged occurrence.
Learned counsel further submitted that the nature of injuries received by the deceased is also not possible in a position when a person is standing. This fact also shows that the alleged crime was not committed by two persons, as alleged. Learned counsel further submitted that the statement of PW6-Rajinder Singh, uncle of minor Ajay, cannot be taken as a corroborative evidence as the statement of this witness is contrary to the version given by PW1 on certain aspects. This witness had stated that when minor Ajay did not open the door, he jumped from the wall to go inside the court-yard and when Ajay opened the door, he went inside the room and took the minor in his arms and inquired about the occurrence, whereas PW1 in his statement had stated that only milkman had come to the house and he told the occurrence to him. This contradiction has not been explained by the prosecution. Learned counsel submitted that milkman Surender, who was cited as a witness, was also not examined and non-examination of the said witness goes against the prosecution.
On the other hand, learned counsel for the respondent-State supported the judgment of conviction and order of sentence passed by the learned trial Court convicting the appellants for the alleged offence for committing the murder of Bhanmati.
After hearing the learned counsel for the parties and going through the record of the case, we do not find any merit in this appeal. In the present case, the occurrence had taken place in the night at 1.00 a.m. At that time, the deceased and minor Ajay (PW1) were sleeping in the house. It has come in evidence that the husband of the deceased is a Pujari and was Crl. Appeal No.227-DB of 2005 -8- residing at Gohana in the temple. Out of other two sons of the deceased, one was studying at Ghaziabad and the other had gone to the house of his maternal uncle due to holidays. Therefore, the presence of the mother and minor child in the house at the time of the alleged occurrence cannot be said to be improbable. In his statement, PW1 had stated that when he heard the noise of his mother, he got up and saw that A2 had caught hold of his mother while A1 was inflicting knife blows to her, and when he grappled with A2, A1 inflicted a knife blow on his back. Thereupon, he got under the cot and hid himself. Thereafter, both the accused ran away with knife. At about 5.00 a.m. when milkman Surender came, then this witness came out of the house and told that his mother was murdered by A1 and A2. At that point of time, other villagers, including his uncle Rajinder Singh also came at the place of occurrence. The husband of the deceased also came present. Since PW1 was inflicted injury by the accused, he was immediately taken to the hospital where he was medico-legally examined by Dr.Varsha. The statement of Dr.Varsha-PW10, who medico-legally examined minor Ajay (PW1), is very important. On examination of PW1, a cut injury, in which fresh bleeding was present, which was caused by a sharp edged weapon, i.e., 2 cm x 1 cm, was found on his person. As per the said witness, the duration of the said injury was within twelve hours. In the cross-examination, on a suggestion, it was stated by Dr.Varsha that the possibility of sustaining the said injury with the help of shaving blade cannot be ruled out. However, in the same breath, this witness has also stated that the said injury could not have been suffered with a friendly hand. Further, on the same day, the post- mortem of the deceased was conducted by Dr.Arun Garg-PW12. Five fatal injuries were found on the person of the deceased. In his opinion, the Crl. Appeal No.227-DB of 2005 -9- probable time between the injury and death was within few minutes and between death and post-mortem was within 24 hours. In his opinion, the cause of death of the deceased was shock and haemorrhage as a result of multiple injuries, which were ante-mortem in nature, which were sufficient to cause death in normal course of life. In the cross-examination, nothing substantial came out against the prosecution version.
In our opinion, there is also no delay in recording the statement of PW1 as well as in lodging the FIR. There was no time left with the police or the husband or uncle of the deceased to tutor the minor child before recording his statement. In his statement, PW1 has categorically supported the prosecution version. Before recording his statement, the trial Court recorded its note of satisfaction that the witness was able to understand and answer the questions. The statement of this witness cannot be discarded only on the ground that he was minor at the time of the alleged occurrence. It is well settled that an accused can be convicted on the basis of the statement of the child witness if his statement is found to be reliable and trustworthy. The Supreme Court in Panchhi v. State of U.P., 1998 SCC (Cri) 1561 has held that the evidence of a child witness cannot be rejected on the ground of his being of tender age. However, the evidence of such witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus he is an easy prey to tutoring. Further, the evidence of a child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law. This principle was reiterated by the Supreme Court in Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 and State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622. In Crl. Appeal No.227-DB of 2005 -10- that case, it was further held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Minor discrepancies in the statement of a child witness also cannot be made basis for discarding his testimony. It was also held that discrepancies in the deposition, if not in material particulars, would lead credence to the testimony of a child witness, who under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. The only thing the Court is required, while appreciating the evidence of a child witness, is to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty.
The only question which is to be adopted by the Court while relying upon the evidence of a child witness, is to evaluate his statement correctly. In the instant case, the presence of the minor in the house at the time of the alleged occurrence cannot be doubted. In night, a minor child is supposed to be in his house along with his parents. So, minor Ajay was present in his house and was sleeping along with his mother on the date of the alleged occurrence. His presence at the place of occurrence has also been established because in the alleged incident, he had also suffered injury, which was found on his person by Dr.Varsha, which could not have been caused by a friendly hand. The testimony of this minor witness is not only corroborated by the medical evidence, but is also corroborated by the statement of PW6-Rajinder Singh, uncle of minor Ajay. The version by these two witnesses cannot be discarded on minor contradictions here and Crl. Appeal No.227-DB of 2005 -11- there. The trial Court accepted the testimony of minor Ajay (PW1) as no inherent defect was pointed out by the defence. We also find no reason to discard the testimony of said witness, which is wholly reliable and trustworthy.
In defence, a plea was taken that the deceased was murdered by her husband as he was keeping another wife at Gohana. In cross- examination of PW1, it was put that the deceased was not of a good character and on that account there was a constant quarrel between the husband and wife. This aspect was not put to PW6-Rajinder Singh. There is no evidence available, either produced by the defence or otherwise, to the effect that the relationship between the husband and wife was strained. The non-examination of Surender (milkman) as he was won over by the accused, in our opinion, cannot demolish the case of the prosecution, when otherwise it has been fully established. Thus, in our opinion the prosecution has proved the charges against the accused beyond reasonable doubt.
We also do not find any force in the contention of the learned counsel for the appellants that A2 was not present at the time of the alleged occurrence and he was falsely implicated in this case. Merely because no blood stain was found on his clothes, which were got recovered and merely because as per the FSL report, the mould of his shoes was not found tallying with his shoes, cannot lead to the conclusion that the said accused was not present at the time of the alleged occurrence. PW1-Ajay has categorically stated in his statement that at the time of the alleged occurrence both the accused were present. A2 caught hold the hand of his mother and A1 gave knife blows in the breast and abdomen of his mother. He has also stated that when he tried to grapple with A2, A1 had caused injury to him with knife. Crl. Appeal No.227-DB of 2005 -12- The said injury was very much established on the person of the child witness by the medical evidence. Therefore, the statement of this child witness, which has been found to be trustworthy, cannot be discarded regarding the presence of A2 merely on the basis of the aforesaid two factors.
Thus, we do not find any illegality or infirmity in the judgment of conviction of both the accused passed by the learned trial Court. We also do not find any illegality in the order of sentence passed by the trial Court. Thus, the conviction as well as sentence awarded to the appellants are affirmed.
Consequently, the appeal is dismissed.
(SATISH KUMAR MITTAL)
JUDGE
January 12, 2009 ( DAYA CHAUDHARY )
vkg JUDGE