Allahabad High Court
Chhabi Raj Ram vs State Of U.P. on 20 October, 2010
Bench: Imtiyaz Murtaza, Ashwani Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Capital Appeal No. 975 of 2009 Chhabi Raj...................................v...................State of U.P. Hon. Imtiyaz Murtaza J.
Hon. Ashwani Kumar Singh J.
(Delivered by Hon. Imtiyaz Murtaza J.) Challenge in this appeal is to the verdict rendered by learned Sessions Judge Ghazipur dated 17.12.2008 in Sessions Trial No. 64 of 2004 and S.T. No. 65 of 2004. To be precise, in S.T. No. 64 of 2004, the appellant has been convicted under section 302/307 IPC and sentenced to capital punishment and also 10 years imprisonment respectively attended with a fine of Rs. 10,000/-. In S.T. No. 65 of 2004, the appellant has been convicted under section 4/25 Arms Act and sentenced to undergo two years rigorous imprisonment and a fine of RS. 2000/- with default stipulation.
In the grim episode, four persons including two children have fallen prey ostensibly to the vengeance of the assailant that be, while one child was left injured apparently mistaking her to be dead.
The informant in the instant case is one Dwarika Ram and the incident is stated to have occurred on 21.9.2003 a little prior to 11 p.m in which four persons were done to death. The incident has taken place in village sonadi, Post Machhti, P.S.Bhanwar Kol Distt Ghazipur. The written report enumerates the details of incidents to the effect that on 21.9.2003, the deceased after partaking of meal had retired to their respective places for sleeping at about 8 p.m. To be precise, the deceased persons had retired to the roof of the house for sleeping while the informant and his eldest son namely, Suresh had retired to the Baithaka (small sitting room) which was being used as a grocery shop, for sleeping. At about 11 p.m, Munna his neighbour, knocked at the door of Baithaka (small sitting room) and when he unbolted the door, the aforesaid person informed that a sound of continuous weeping/sobbing of a girl was emanating from the informant's roof for quite a long time upon which his son Suresh rushed to the house and banged the door which was bolted from inside. After sometime, Sunita unbolted the door and at that time, she was completely drenched in blood. Upon being repeatedly asked, she kept on weeping/sobbing and since she was too terrified, she did not reveal anything. Without losing further time, he and his son went up-stairs and saw that his son, his daughter in law and his grand son had been done to death in a most gruesome manner by assaulting with a sharp cutting instrument. They also noticed that Sunita herself had been assaulted by a sharp instrument on her head and according to the further allegations in F.I.R, it was stated that it appeared that she had been left as she was, mistaking her to be dead.
The F.I.R was lodged at the police station Bhanwar Kol on the basis of written report dated 22.9.2003 and the same was registered at case crime no. 493 of 2003 at 3.30 a.m. The investigation was taken over by S.O Shailendra Tiwari. The inquest report was prepared between 8.15 to 9.20 a.m on 22.9.2003 and the dead bodies were sent for post mortem escorted by constables Durbasha Dubey and Rakesh Singh while injured Sunita was sent for medical examination at primary health centre Mohammadabad. The investigating officer prepared site plan and also prepared recovery memos from the place of occurrence. The investigating officer, as is the case, also recorded statement of Km. Sunita and Gulab Chand on 23.9.2003. On 24.9.2003, the house of accused was searched and certain love letters were recovered from the belonging of Km. Geeta. The same day, the investigating officer also searched the personal belonging of deceased Shravan alias Anil Kumar and recovered love letters written by Geeta. The same day, the investigating officer also recorded statements of Kapil Deo Rai, Ram Prakash and Rai Ravindra Ram. On 25.9.2003 accused was arrested and and his statement was recorded and the same was entered in the case diary. On a disclosure statement, weapon used in the assault was also recovered. On 26.9.2003, the earth marked with foot print of the assailant was picked out and sealed. On 29.9.2003, the investigating officer took steps for recording of statements of witnesses under section 164 Cr.P.C and in this connection, he made appropriate application in the court of C.J.M Ghazipur. The same day, he recorded the statement of the constable Rakesh Kumar who escorted the dead bodies for post mortem. He also recored the statements of inquest witnesses namely, Gulab Chand Ram, Jhilluram, Baijnath Ram Mangru Ram, Ramashreya Ram. The same day, he also recorded the statement of Munna Ram and Dwarika Ram, who were witnesses to collection of blood stained earth. The same day, he recorded the statement of Mohd. Khursheed, who was witness to the fact of arrest of accused Chhabi Raj. He also recorded the statement of Vijai Kumar and Vikram Rai. On 30.9.2003, the statements of witnesses namely, Ram Saran, Ramashreya Ram and Jai Prakash Rai were recorded under section 164 Cr.P.C in the court of Civil Judge (2nd) Ghazipur. On 1.10.2003, statements of H.C.P. Ram Naresh Upadhayay, Constable Rakesh Singh , Uamakant Yadav, and constable Shri Kant Ram were recorded. On 6.11.2003, statement of constable Durbasha Dubey was recorded who escorted the dead body for conducting post mortem examination. On 7.11.2003, statement of Dr. S.S.Pandey, who examined the injuries of Km. Sunita was recorded. The same day, the statement of constable Nabi Ahmad who had taken the articles for delivery at Forensic Laboratory Lucknow was recorded. The investigation of case under section 4/25 Arms Act was entrusted to H.C. P. Ramashreya Yadav. On the basis of evidence collected during investigation, accused Chhabi Raj Ram was arrested on 25.09.2003. Subsequently, the police filed charge sheet in the case.
The prosecution in support of its case, adduced evidence of Dwarika Ram P.W. 1 who was first informant and father of deceased (Shravan alias Anil Kumar), Gulab Chand, P.W. 2, Nand Lal, P.W. 3 Mohd. Khursheed, P.W. 4, Sunita injured, P.W. 5 Suresh Ram, P.W. 6, H.C.P. Sri Ram Saroj P.W. 7, who headed for place of occurrence from Varanasi with dog squad, Constable Ajeet Kumar P.W. 8 who took photograph of the deceased and collected various evidence by close scrutiny of the place of occurrence. P.W. 9 is S.I. Virendra Singh who conducted inquest report and prepared Exhibits 4 to 27. P.W.10 is Dr. B Narain, Medical officer who conducted autopsy on the body of the deceased namely, Ankur, Anil and Patrika Devi. He also proved exhibits Ka 28 to Ka 31. P.W. 11 is Dr. Suresh Shanker Pandey, who medically examined injured Sunita P.W. 4 at the Primary Health Centre Mohammdabad. This witness also proved injury report Ka 32. P.W. 12 is Shailendra Tripathi Station officer who took over investigation of the case. He prepared site plan Ex ka 33, and prepared Exhibits Ka 34, Ka 35, Ka 36, , Ka 38 and Ka 39.He also prepared Exhibits Ka 40, Ka 41 to Ka 60, ka 61, Ka 62 and Ka 63, Ka 64, Ka 65 and Ka 66. P.W. 13 is Satya Dev Prajapati who prepared chik report of case crime no. 493 of 2003 under section 302/307 IPC which is marked as Ex. Ka 67. P.W. 14 is Constable Chandra Bhushan Mishra, who prepared chik report relating to recovery of Banka in case crime No. 486 of 2003 under section 4/25 Arms Act. He proved Chik report Ex. Ka 68 and G.D. Entry Ka 69. P.W. 15 is constable Rakesh Singh proved chik report in case crime no. 493 of 2003 relating to arrest of accused Chabi Raj Ram, recovery of Banka on his pointing out, and recovery of blood stained clothes which the accused wore at the time of commission of offence. P.W. 16 is constable Rajendra Ram proved G.D. Entry Ex Ka 70. P.W. 17 Ram Saran is a witness relating to preparation of Fard Ka 61 and also Ex. Ka 71 which relates to statement of witnesses before the Magistrate. P.W. 18 is constable Nabi Ahmad. He performed the duty of taking Banka to the court of C.J.M and preparing docket for the aforesaid weapon for being sent to Lucknow for forensic examination. This witness after completing formalities took the said weapon to Lucknow, which was duly sealed and delivered the same at Forensic laboratory at Lucknow. P.W. 19 is HCP Ramashreya Yadav. He was posted as Incharge police outpost and was entrusted the investigation in case crime No. 496 of 2003 under section 4/25 Arms Act.
Following anti mortem injuries were found on the person of Ankur-
(1 Incised wound 16 cm x 4 cm x cavity deep on (Lt) side of back of head, extending towards occipital region and bone deep underlying bones fractured.
Following anti mortem injuries were found on the person of Shubham-
(1)incised wound 14 cm x 4 cm x cavity deep on back of head in occipital region underlying bones fractured.
Following anti mortem injuries were found on the person ob Anil Kumar Ram alias Shravan.
(1) Incised wound 20 cm x 4 cm x bone deep on (Right) side of neck extending to left side, s cm of scar top on (right) sideof neck (Underlying muscles, bones vessels and wind pipe cut through and through).
Following anti mortem injuries were found on the person of deceased Patrika Devi.
(1)Incised wound on (right) side of fadce in mandibular region extending into occipital region of head 20 cm x 4 cm x cavity deep (Underlying bones fractured).
(2)Incised wound 12 cm x 8 cm on (Rt) Deltoid region of upper right bone deep.
(3)Incised wound 10 cm x 6 cm x bone deep on (Rt) upper arm lower portion (Underlying humorous bone fractured).
(4)(L) Index and Middle fingers are amputated at the level of distal interphalangeal joints.
The medical examination of Km. Sunita was conducted on 22.9.2003 at 4.10 a.m at C.H.C. Mohammdabad Ghazipur and following injuries were found on her person.
(1)There is incised wound of size 9 x 1 cm x deep upto bone at right side scalp (Ant and middle part) There is blood clotting present. The margin is clear cut and regular. The wound anterior end is 2 cm away from right lateral supraorbital margin. There is associated swelling of size 10 x 4 cm present.
(2)There is lacerated wound of size 2.5 x 0.8 x 0.2 cm on right hand which distal end is on dorsal aspect of right middle fingers proximal phalynx. There is blood clotting present.
(3)There is lacerated wound of size 1.5 0.3 x 0.1 cm on right hand which distal end is on dorsal aspect of right little fingers proximal phalynx. There is blood clotting present.
(4)There is abrasion of size 0.5 x 0.1 cm on dorsal aspect of right hand which is just at proximal pharynx of right ring finger.
The accused in his statement recorded under section 313 Cr.P.C denied the incriminating evidence appearing against him. He pleaded that he has been falsely implicated on trumped up charges and claimed to be innocent. He also stated that the witnesses have deposed falsely against him. He also stated that Suresh Rai in order to screen himself and by exerting pressure on police through his maternal uncle who was serving as R.T.O has concocted the entire theory and foisted charge of murder on him. He initially professed a desire to adduce evidence in his defence but subsequently, he forsake adducing any evidence in defence.
The trial court upon appraisal of the entire evidence on record, relied upon the evidence of injured child Sunita. It was also held that the prosecution has been successful in concatenating the links as a whole making the entire chain complete and ultimately recorded conviction as stated supra.
The learned counsel appearing for the appellant contended that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the appellant. He also contended that the chain of circumstances is not complete to connect the appellant with the commission of offence attended with submission that P.W. 5 Sunita being a child witness aged about 8 years, implicit reliance cannot be placed upon her testimony as she had been tutored and primed to give her evidence on dotted line, also regard being had to the fact that she had named the appellant for the first time in the court after an efflux of one year. He further contended that there is no corroboration of the statement of P.W.5 Sunita who being child witness, needs corroboration as necessity of corroboration is a rule of prudence. He also contended that there are no circumstances in the instant case to dispense with the necessity of corroboration.
Per contra, learned A.G.A canvassed for correctness of the view taken by the trial judge submitting that the prosecution case does not suffer from any anomalies which may be said to be writ large on record.
Be that as it may, in order to appreciate the aforesaid rival contention advanced across the bar, we have independently scrutinized the oral as well as documentary evidence on record.
Shorn of unnecessary details, the depositions of various witnesses adduced by prosecution are as under:
The first witness whose evidence has to be scrutinised is Dwarika Ram P. W. 1 who lodged the F.I.R.. He deposed that he had his shop at a short distance from his house and on the day of occurrence, as usual he had retired for sleeping at his shop alongwith his elder son Suresh while at the house, were the inmates namely, Patrika wife of Suresh, his younger son Shravan alias Anil Kumar, two of his grand sons namely Shubham and Ankar and Sunita, daughter of brother in law of Suresh. In his evidence, he reiterated the contents of the F.I.R stating that between 12 to 1 p.m , his neighbour Munna knocked at the door and intimated that he had heard a girl sobbing for quite sometime upon which his son rushed to the house and after getting the door unbolted, he saw Sunita drenched in blood. He further deposed that thereafter his son went upstairs where he saw Anil, Patrik, Subham and Ankur lying in pool of blood. Thereafter, Suresh rushed back and informed the witness upon which he also rushed to the sight. Thereafter he got the report scribed by Arun Kumar and after affixing his thumb impression threon, handed over the same at the police station. He also proved the report and his thumb impression thereon.
The witness was recalled for cross examination. Dwelling on genealogy, he stated that his father were four brothers, namely, his father Banshi, Harbans, Pardeshi and Videshi and Nandlal was the son of Videshi. Pardeshi had one son namely Ram Saran. Nand Lal had two brothers namely, Lal Chandra and Hanuman. Harbans had one son namely Ramashreya. The witness deposed that he had four brothers including himself namely himself, Baijnath, Chandrika and Shiv Nath. The name of eldest son of Chandrika is Subhash. He denied the suggestion that wife of Nand Lal had died 12 years back. Rather he stated that she had separated from Nand Lal and was living at her father's residence. He also denied suggestion that his elder son Suresh was sexually weak and therefore his younger son Anil had established an intimate illicit relation with Patrika and two children were born of union of Anil and Patrika. He also denied the suggestion that he was concealing illicit relation between Patrika and his younger son Anil.
The next witness is Gulab Chand, who is arrayed as P.W. 2. He denied that he had seen anyone committing murder of the deceased persons. He also denied that he could not tell as to who committed murder of the deceased persons. He also denied that he had any knowledge about intimate relation between Shravan alias Anil and daughter of Chhabiraj. This witness was declared hostile as having been gained over by the defence.
In cross examination, he denied that he had given a statement under section 161 Cr.P.C before the investigating officer to the effect that the parents of both the girl and boy had agreed for marriage but subsequently Shravan declined to marry Geeta. He denied the suggestion that he was deposing falsely to screen the accused from possible conviction.
P.W. 3 is Nandlal. This witness also denied to have made any statement under section 161 Cr.P.C as recorded by the investigating officer. The prosecution also declared this witness hostile as having been gained over. He also denied that he was deposing falsely to save the accused.
P.W.4 is Mohd. Khursheed. This witness also denied to have made any statement under section 161 Cr.P.C as recorded by the investigating officer. The prosecution also declared this witness hostile as having been gained over. He also denied that he was deposing falsely to save the accused.
P.W. 5 is Sunita. As stated supra, she is the daughter of brother in law of Suresh. The Court recorded her statement in question-answer form. After making certain queries, the court held the view that the witness understood the questions and she could be administered oath. The oath was administered to her by the orderly of the court. She deposed that Patrika was her Bua (father's sister) and at the time of occurrence, she was residing there. On the day of occurrence, she deposed, she and other deceased persons were sleeping on the roof and during midnight she woke up from her sleep and saw Chhabi Raj. On being queried by the court whether Chhabi Raj had anything in his hand, she stated that he was possessed of something very long by measuring length of the weapon by her right hand. She also deposed that Chhabi Raj struck her on her head with the weapon he was possessed of and thereafter, he also assaulted other persons who were asleep there. After sometime when she regained conscious, she started crying. She further deposed that while she was weeping, Suresh and others banged the door upon which she unbolted the door and they also came in. She also deposed that the police had come on the site of incident after sometime. She also stated that she knew Geeta daughter of Chhabi Raj. She further deposed that she used to come to her house and she had seen her talking to Shravan Phupha. She also deposed that aforesaid Geeta once tried to pursuade her to act as errand between her and Shrawan by delivering a letter but she declined.
In her cross examination, she stated that she had come to depose from village Sabani and she had come to court with her father. She denied that she was first taken to the house of lawyer. She also stated that she was asked by her father to depose what she saw in the course of incident. She also stated that in the court premises, she was not asked anything by the lawyer nor she told anything to the lawyer. She denied the suggestion that she was deposing falsely. She also denied the suggestion that she was primed or tutored by her father, grand father or the lawyer to say that it was Chhabi Raj who committed murder. She stated that she was acquainted with certain people in village Sonadi and out of them, Chhabi Raj and her daughter were also known to her. She also stated that when Suresh banged the door and she unbolted the door she could not tell anything on account of her being fear stricken. She also stated that the police came at about 3 a.m but she did not divulge the name who committed the crime as she was dumb-founded. She denied that she had given a statement to the police that she was unable to tell who struck her. She also denied that she gave statement before the investigating officer that she could not see the assailants and further from which side the assailants came. She also denied the suggestion that she mentioned the fact of love letter being handed over to her by Geeta for being delivered and her denial of acting as errand between Geeta and Shravan, on being asked to depose on this line by the lawyer. She also stated that after the incident, she stayed back in the house for 16 days and during this period she did not tell anything about assailant to any one.
P.W. 6 is Suresh eldest son of Dwarika the first informant. He deposed that his brother was studying in Varanasi and after completion of his studies, he had come to the village about 4-5 months back. He further deposed that his brother got a job in Mohammdabad block. He also deposed that his mother had died much before the incident. He also deposed that his father used to sleep at the shop for security reasons and that his father had defect in one of his leg and for this reason, sometime he and sometime his brother used to sleep with him at the shop. He reiterated the version as contained in F.I.R stating that he was woken up due to knocking of the door by Munna his neighbour who informed that he was constantly hearing cries of a girl emanating from the roof of his house upon which he rushed and got the door unbolted and thereafter, he saw the grim tragedy. He also deposed that Geeta was the daughter of accused Chhabi Raj and she used to come to learn sewing from his wife. She also used to talk with his brother and gradually, it became the talk of town that she and Shrvan were on intimate relation. Two to four days prior to the incident, the father of Geeta had a talk in connection with the marriage of Geeta with Anil. He also deposed that his right leg was afflicted with filaria disease and it had thickened and heavy and he was finding it difficult to move about. He also deposed that on the day of incident, Sunita was fear stricken and as such she could not speak anything.
In cross examination, he stated that since he had affliction in his right leg, he moved about with great difficulty. He also stated that he had his grocery shop in his small room and that the shop lay at a distance of about 100 meter from his house. On being queried he stated that his wife was native of Bihar and nuptial knots were tied with her in the year 1991. On being further queried as to what was the reason that no child was born to him for the last 14 years, he stated that pregnancy used to terminate and thereafter, doctor was consulted and it was after sustained treatment and also after occult treatment, the children were born to her wife. He further stated that he had passed intermediate and that there was age difference of about 13-14 years between him and his younger brother. He also stated that his wife used to look after his younger brother with care and concern. He denied the suggestion that he ever questioned his brother that he was always confined in the house or that he was ever rebuked by his brother retorting that he (witness) being not so highly qualified, behaved as doubting Tom about his conduct. He denied the suggestion that he ever gave statement to Investigating officer on this line. He also denied the suggestion that he ever made statement on this line on account of legal advice by his lawyer. He explained that it was not always that he was confined to shop further explaining that both of them used to sit at the shop by turn. He denied the suggestion that he gave statement to the investigating officer to the effect that it was he who used to sit at the shop day and night while Anil was always confined to the house. He also denied the suggestion that he was not capable of producing child. He also denied the suggestion that there was rumour that his two children were born out of union of his wife and his younger brother. He also denied the suggestion that he was upset on account of illicit relation between his wife and his younger brother or the murder was the offshoot of illicit relation between the two. He stated that there was strong rumour that Geeta and Anil were on intimate relations. He admitted that this fact was not told to investigating officer. He also denied the suggestion that the murder was committed by him and in order to screen himself, he foisted the incident on the accused with the active help of his maternal uncle who was R.T.O. P.W. 7 is HCP Sri Ram Saroj. He deposed that on information received on R.T. Set, he went to the place of occurrence alongwith sniffer dogs. He also deposed that he alongwith dog squad could reach the place of occurrence after efflux of 12 hours. The sniffer dog took scent from the side of the bodies of the deceased and thereafter, it moved to south-western wall of the house and thereafter taking scent from splodge of blood which was on the wood, it moved upto the point of hand-pipe which was situated in front of the house of Chhabi Raj. He also deposed that the movement of sniffer dog thus proved that the accused took the route on which the dog moved. He also deposed that the dog did not move ahead of the hand pipe installed in front of the house of Chhabi Raj. He further deposed that the sniffer dog was made to move inside the house of Chhabi Raj but they could not get any clue. He could not rule out possibility that the assailant might have used the hand-pipe to cleanse himself of the blood stains.
This witness was recalled on 23.12.2006 for further cross examination. In his further cross examination, the witness stated that he had not drawn any map of the movement of dog but the movement of the dog is only noted. He denied to have known the accused from before the incident but gave topography of the house and the place of incident on the basis of recollection. He stated that the house in which he had taken the sniffer dog belonged to Chhabi Raj as he was told by the policemen present there. He further stated that he could not get any clue from the house. He further stated that there was no mark of blood at the hand pipe. He further stated that at the site of occurrence at the place where pole was grouted, no blood was found and only foot marks were found. The sniffer dog was prompted to sniff at that place and thereafter, the dog took him to the house of Nand Lal and again they could not get any clue. He also stated that thereafter, they returned back.
The next witness who is arrayed as P.W. 8 is Constable Ajeet Kumar Chaturvedi. He was posted in S.P. Office Ghazipur. On being required on R.T set, he arrived at the scene of occurrence where he scrutinized the place with precision in order to collect finger prints but he could not find any finger prints. He took photo of the site of occurrence which was marked as Ex. 1. He further deposed that it was clear from the scrutiny of the place of occurrence that the assailant had climbed up the roof from south western side of the house with the aid of the wooden pole which was grouted there. He also deposed that it clearly transpired that after commission of offence, the assailants had jumped from the roof and left foot print mark there and he had collected foot prints from plaster of paris. He further deposed that on account of rain, the earth was wet and therefore, he had issued instructions to the police personnel present there to keep watch over the place as he would again come after the earth dries up to collect foot prints. On 26.9.2003, when he came to know that the police had arrested accused person, he again came to the police station, and deposited the foot prints collected from the place of occurrence in the police station. He also deposed that he had also collected foot print marks of the accused. He further deposed that the accused had confessed that he had committed murder wearing the self same cloths which he was wearing. Upon close scrutiny of his clothes, he further deposed, the blood stains were visible from his cloths. He further deposed that the accused was given another cloths for wearing while his cloths were taken into custody and recovery memo was prepared. He further stated that he submitted his report respectively on 22.9.2003 and 26.9.2003.
The next witness is Virendra Singh S.I. Who is arrayed as P.W. 9. He deposed that he prepared inquest report. He proved the papers the details of which are contained in his statement. In his cross examination, he stated that he conducted only inquest proceeding and prepared inquest report and nothing else.
The next witness is Dr. B. Narayan, Medical officer P.H.C. Padhuri Distt Mirzapur who is arrayed as P.W. 10. He conducted post mortem on the dead body of deceased Ankur, Shubham, Anil Kumar alias Shravan, Smt. Patrika Devi. He proved the post mortem reports.
P.W. 11 is Dr. Suresh Pandey Medical officer P.H.C. Mohammdabad. He deposed that Sunita was brought to him for medical examination at 4.10 a.m. He proved the injury report.
P.W. 12 is Shailendra Tripathi, Station officer P.S. Dildarnagar Ghazipur. He proved the documents which were dealt with by him during investigation and authenticated their correctness. The quintessence of his deposition that during investigation, he came to know of love affairs between deceased Anil Kumar and Geeta daughter of accused Chhabi Raj. On 23.9.2003, statement of Km. Sunita was recorded. On 24.9.2003, search was made for the accused but he was nowhere traceable. On the same day, an assiduous search was made of the house of accused and during the course of search, the love letters and identity card of Anil Kumar were recovered from the Almirahs of Geeta which were kept in the school books. The love letters were taken into possession and were marked as Ex. Ka 33. The search was also made of the belonging of deceased Anil Kumar from the house of informant and as many as 20 love letters written by Km. Geeta to Anil Kumar were recovered which were duly marked as Exhibits. During search, a coloured photo of Geeta was also recovered from the belonging of deceased Anil Kumar. He also deposed that from paper nos. 15 and 20, it clearly transpired that their relationship was not platonic and both had had physical contact. Thereafter, he further deposed, the statements of village people namely Kapil Devi Rai, Ram Prakash Rai and Ravindra Ram were also recorded. He further deposed that the accused was arrested on 25.9.2003 at about 12.30 p.m from in font of the house of Khursheed in village Sonadi. Upon his arrest, he confessed to crime and on his pointing out, weapon known as Banka was recovered from the field which was situated on south western corner of the thatch in which flour mill was also installed. He also deposed that Forensic Experts were also called for from police line; the accused was put behind the bar and the weapon was deposited in the Malkhana. He further deposed that on 26.9.2003, field unit constable Ajit Kumar Chaube was called at police station who collected foot print sample of Chhabi Raj. He also collected the cloths which the accused was wearing and marked the same as Exhibit. He also deposed that blood stained and simple earth which was collected from the place of occurrence was sent for forensic examination at Lucknow. He further deposed that sample of foot print could not be sent as the same had cracked after drying up.
In cross examination, the witness was subjected to gruelling cross examination but nothing which could shake the foundation of prosecution case, was elicited. He stated that during investigation, the needle of suspicion was tried to be turned on Suresh but on further investigation, the role of accused transpired in the commission of the crime. He also stated that during search of the house of Chhabiram, the only person present in the house was the old mother of accused who was aged about 80 years. Her signatures could not be obtained on any of the recoveries as she was unable to comprehend anything and she was merely shrieking at the sight of the police personnel. He denied suggestion that the recovery of love letters was shown to prop up failing prosecution case. He further denied that Exhibit 40 was used to prop up false prosecution case. He emphasized the fact that the accused was arrested from the village. He stated that Banka was recovered from rice field which was filled with water and the place from where the weapon Banka was recovered was not accessible to common man. He also deposed that he and other police personnel had gone to the place from where weapon was recovered. He denied the suggestion that the weapon Banka was not recovered on the pointing out of the accused. He further denied that in order to complete the chain of circumstances, the recovery of weapon was shown. He explained that foot prints which were collected were not sent to Forensic library as the earth had cracked up due to drying up. He also denied the suggestion that the foot prints were dismantled in order to screen the real culprits. He denied the suggestion that he had any talk with the relation of Dwarika who was serving as R.T.O. He also denied the suggestion that he has not conducted the investigation fairly. On being further cross examined he stated that Sunita had given statement to the effect that she was assaulted but she could not recognise the assailant.
P.W. 13 is C.P.Satyadevi Prajapati. He deposed that on the basis of written report submitted at the police station by Dwarika he prepared chik report and registered the case at case crime no. 45943 of 2003 under section 302/307 IPC. He proved the G.D. Entry. In cross examination he denied the suggestion that the F.I.R was registered next day after due deliberation. He also denied the suggestion that Ex. Ka 67 was registered much later or it was anti timed.
P.W. 14 is constable Chandra Bhushan Misra. He deposed that he prepared chik report of case crime no. 496 of 2003 under section 4/25 Arms Act and proved the G.D. Entry. He further deposed that the report was registered on 25.9.2003 at 3.40 p.m. He also proved details about departure and arrival of the police personnel on that day.
P.W. 15 is Constable Rakesh Singh. He deposed that on 25.9.2003, on the basis of information of the informer, the police party proceeded to arrest the accused and the accused was arrested from in front of the house of Khursheed in village Sonadi. He also deposed that the Station officer interrogated the accused who confessed the crime and on the disclosure made by him, the weapon was recovered. He also deposed about the precise details leading to recovery of weapon used in the commission of offence. He also testified about other details of preparing recovery memo, memo of arrest and also about details of his being signatory to the memos prepared on the spot. This witness was also subjected to grueling cross examination.
P.W. 16 is constable Rajendra Rai. He deposed that he prepared the chik report in case crime no. 493 of 2003 under section 302/307 IPC. He proved Exhibit 70 In cross examination, he denied that the F.I.R was drawn subsequently and it was anti-timed.
The next witness is P.W. 17 namely Ram Saran. He deposed that on the day Chhabi Raj was arrested, he was sitting at the door of Dwarika. At about that time, Chhabi Raj was brought in custody by the police personnel. He also followed the police personnel. The accused was leading the police to his flour mill. From behind the flour mill, he took out Banka from the paddy field. He further deposed that the investigating officer sealed the said weapon on the spot. He further deposed that his statement was recorded before the Magistrate in Ghazipur under section 164 Cr.P.C. In cross examination, he minced no words to say that Dwarika was the son of his uncle Banshi and Nand Lal was the son of his another uncle Videshi. He further stated that he was called by investigating officer at 1.30 p.m and when he reached the pumping set of Chhabi Raj, the accused was already there. He further stated that at that time, investigating officer was preparing recovery memo. He denied that he was deposing falsely on account of Dwrika being his cousin. He also denied that in his presence, no recovery was made on the pointing out of Chhabi Raj.
The next witness i.e. P.W. 18 is Constable Nabi Ahmad. He is a witness who took the recovered articles from the police to the court of C.J.M and from there, he delivered the said articles at Forensic Laboratory at Lucknow. In cross examination, nothing detrimental to the prosecution case could be elicited..
The next witness is H.C.P. Ram Ashreya Yadav P.W. 19. He conducted the investigation of case crime No. 496 of 2003 under section 4/25 Arms Act. He deposed that the investigation was entrusted to him on 25.9.2003. Thereafter, he was sent on Mela Duty in Vindhyachal. He began investigation of the case on 11.10.2003 after return from Mela Duty and on the same day, he recorded statement of Sri Kant Ram, Ramashrey Ram, and Ram Saran. On 18.10.2003, he recorded the statement of Ram Naresh Upadhyaya H.C.P. After completing investigation, he filed charge sheet against Chhabi Raj in the court. In cross examination, he stated that the weapon of assault was not sent for examination at Forensic laboratory at Lucknow. He denied that he did not conduct the investigation fairly.
We have scanned the judgment of the court below, and distillate of the judgment is that the Sessions Judge recorded verdict of conviction against the appellant placing credence of the testimony of child witness which further according to the judgment, received corroboration from the recovery of weapon used in the commission of crime on the pointing out of the appellant attended with the finding that the appellant was imbued with powerful motive to commit the crime.
The first and the foremost submission that we take up for consideration is whether the prosecution has failed to prove motive of the crime. Here in this case, this submission about motive assumes greater significance particularly when the conviction has been recorded on the basis of testimony of a child witness.
The first witness examined by the prosecution to buttress the motive is P.W. 2 Gulab Chand. This witness was declared hostile as having been gained over. In his deposition, this witness denied to have any knowledge of intimate relation between Shrvan alias Anil and daughter of accused Chhabiraj. He also disowned having made any statement as recorded by the investigating officer under section 161 Cr.P.C to the effect that the parents of both the girl and boy had agreed for marriage but subsequently Shravan declined to marry Geeta. The next witness examined on the point is P.W. 3 Nand Lal. This witness also denied to have made any statement to the effect as attributed to him before the Investigating officer under section 161 Cr.P.C. This witness was also declared hostile as having been gained over. To the similar effect is the statement of P.W.4 Mohd. Khursheed and this witness was also declared hostile as having been gained over. The next witness is P.W. 5 Suneeta. Her version was to the effect that Geeta used to frequent the house and she had also seen her talking to Shravan alias Anil and that Geeta had once asked her to deliver love letter to Shravan which she had declined. The next witness is P.W. 6 Suresh Ram, elder brother of deceased Shravan. His statement substantially was that Geeta used to visit the house almost daily as she was learning sewing and it was during her visit that she used to talk to Shravan. He also stated that the love affairs between them had gained currency all over the town. This witness also proved writing of his brother on paper Nos. 15 a/1, 15 a/2, 17 a/1 and 17 which are letters written by his brother to Geeta. In cross examination, he conceded the fact that it was for the first time in court that he was deposing that the love affairs between them was the talk of the town.
The prosecution also adverted to the statement of investigating officer on this score to the effect that the investigating officer had ranscaked the house of Chhabi Raj and search of the Almirah of Geeta had yielded love letters written by Anil to Geeta together with recovery of identity card of Anil alias Shravan from inside the copy of school. The investigating officer also recovered about 20 love letters from the suit case of the deceased and a coloured passport size photo of Geeta. This is all what the prosecution has collected to attribute motive to the deceased for commission of offence.
From the scrutiny of the above evidence, this much can be said to be acceptable that both the girl and boy were lovelorn youngsters. However, there is nothing on record to shore up the fact that appellant was aware of the intimate relation/love affairs between Shravan alias Anil and Geeta. By any reckoning, if it is believed that the appellant was aware of any intimate relation, at the same time, there is again no material or evidence on record to bring home the fact that the appellant on coming to know of love affairs, had ever exhibited his displeasure on this count. We have searched the entire evidence on record but we have not come across anything in their evidence to evince that the appellant ever verbalized his displeasure or at any point of time, threatened or reprimanded Shravan or Geeta.
The position of law is well settled that failure to establish the motive for the crime committed by the accused does not mean that the entire prosecution case has to be thrown overboard. It only casts a duty on the court to scrutinize the other evidence particularly of the eye witnesses with greater care. In a stream of decision, it has been settled that the prosecution is not bound to prove motive of any offence in a criminal case inasmuch as motive is known only to the perpetrator of the crime. If the motive is proved the Court has to consider whether it is adequate. It is further settled position of law that in a case which turns on direct evidence, the motive element does not play such a pivotal role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard. If the incident in question as projected by the prosecution is to be accepted, the presence or absence of a motive or cogency of the said motive by itself will not emasculate the prosecution case.
In the light of the above discussion, we converge to the conclusion that the motive attributed to the appellant for the commission of the offence is not so powerful as to imbue him with impulsion to commit the offence.
The next point that comes up for consideration before is whether the prosecution has proved its case beyond reasonable doubt. We would cull out the relevant portion of the evidence adduced in this case.
P.W. 5 Suneeta who is a child witness, is the sole ocular witness on whose evidence hinges the entire prosecution case. At the time of occurrence, she was sleeping on the roof alongwith other deceased persons. She was also assaulted and she sustained grievous injuries in the incident and she was left mistaking her to be dead. By this reckoning, her presence at the place of occurrence leaves no manner of doubt in our mind. It is in this perspective that the learned Sessions Judge placed implicit reliance on her testimony and he based the verdict of conviction on this sole testimony.
Before we proceed further, we would briefly sketch the submissions of the learned counsel on this count advanced across the bar. The learned counsel for the appellant mounted frontal attack on the finding of the court below in which the court below placed implicit reliance on the testimony of this child witness arguing that the learned Sessions ought not to have believed her testimony which by all reckoning, is a tutored one and she seemed to have been primed before coming to depose in the court. He also drew attention of the Court to the fact that it was for the first time that she gave name of the appellant in court. He also drew attention to the fact that she is stated not to have disclosed anything about the incident to anyone for complete one year and it was for the first time in court that she gave version about the incident in court after an efflux of one year. It is further argued that tardy version about the incident by this witness for the first time in court does not deserve to be accepted.
We have given our anxious considerations to the above submissions in juxtaposition of the evidence on record.
The quintessence of the finding of learned Sessions Judge on this point is that the child witness was injured further holding that since she was shell-shocked by the sight of what happened before her and was not in a fit state of mental equilibrium and hence it was natural for her not to have disclosed about the incident.
In connection with the above view of the court below, we feel called to refer to the Indian evidence Act, 1872. The Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender age, extreme old age, disease-whether of mind, or any other cause of the same kind. It is further envisaged that a child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
The principles for appreciating testimony of a child witness is well-enunciated by stream of decisions of the Apex Court.
In Suryanarayana v. state of Karnataka, (2001) 9 SCC 129 page 134, the Apex Court held as under:
"The 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. The evidence of P.W. 2 cannot be discarded only on the ground of her being of tender age. The fact of P.W. 2 being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars would lend 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. While appreciating the evidence of the child witness, the courts are required 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 or not."
The next case which we would like to refer to is Panchhi v. State of U.P. (1998)7 SCC 177 in which Apex Court at page 181 held as under:
"It is not the law that if a witness is a child, his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus, a child witness is an easy prey to tutoring."
In the case of Dattu Ramrao Sakhare, V. State of Maharashtra reported in (1997) 5 SCC 341, the Apex Court held as under:
"The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored"
The above position finds echo in RatanSingh Dulsukhbhai Nayak v. State of Gujrarat (See pp 67-68 paras 6 and 7).
Bearing in mind the above legal position we now proceed to scan the testimony of P.W. 5 Suneeta with care and caution and also to see whether the learned Sessions Judge was justified in placing credence on her testimony, which, it brooks no dispute, was recorded for the first time in Court.
The excerpts of her deposition relating to actual incident are that on the day of occurrence she and other deceased persons were asleep on the roof and during midnight, she woke up from her sleep and saw Chhabi Raj who struck her on her head with the weapon he was possessed of and thereafter, he also assaulted other persons who were asleep there. She also stated that when Suresh banged the door she unbolted the door and that she could not tell anything on account of her being fear stricken. She also stated that the police came at about 3 a.m but she could not divulge the name who committed the crime as she was shell-shocked by the incident. She denied that she had given a statement to the police that she was unable to tell who struck her. She also denied that she gave statement before the investigating officer that she could not see the assailants and further from which side the assailants came.
The above statement of P.W.5 was believed on all fours by the trial Judge notwithstanding the fact that it was for the first time that she had named the appellant in court explaining that after the incident, she had gone to her parents house which was situated in a different village.
We have independently examined the testimony of P.W. 5 Sunita qua the testimony of the investigating officer in order to ascertain whether the statement of P.W. 5 Sunita is reliable and also free from any tutoring.
The investigating officer namely Shailendra Tripathi, P.W. 12 in his statement has clearly stated that the statement of P.W. 5 Suneeta was recorded on 23.9.2009 in which she did not disclose the name of assailant. He further deposed that she merely stated that she was assaulted on her head and hand and that she did not see who assaulted her. It is further stated that in her statement she also stated that she did not seen who were the assailants and from which side they had come. In court, P.W. 5 denied to have given statement to the aforesaid effect.
Having considered the matter in the light of the above case laws, we are inclined to countenance the submission of the learned counsel for the appellant that the learned Sessions erred in assessing the testimony of P.W.5 Suneeta vis-a-vis the evidence on record. The Sessions Judge slurred over the testimony of the investigating officer who had recored the statement of P.W.5 Sunita on 23.9.2003. The investigating officer has minced no words to say that during investigating, P.W.5 Sunita had told her that she did not know who had assaulted her and who were the assailant and from which side they had come.
The learned A.G.A tried to prop up the failing case submitting that after the incident, being child, she was fear stricken and shell shocked and therefore, she might have been too dumb founded to disclose the identity of her assailant and it was quite possible that she had not disclosed the identity of her assailant at the time the investigating officer recorded her statement. The learned A.G.A further tried to shore up the cracks by stating that after the incident, the girl had left for father's house in another village. In this view of the argument, we have again glanced back to scan the evidence of this child witness and we are afraid to say that this is not the correct factual position as would appear from her evidence on record. The correct factual position is that according to the testimony of P.W. 12, investigating officer, her statement under section 161 Cr.P.C was recorded on 23.9.2003 in which Sunita P.W.5 clearly deposed that Investigating officer had arrived in village at 3 a.m and that the investigating officer had enquired from her about the incident. She further deposed that on account of being fear stricken she had not told the investigating officer (Daroga) that it was Chhabi Ram who had assaulted her. She has further deposed that after 3-4 days of the incident, she was again interrogated and again she did not tell him (Daroga) that Chhabi Ram had assaulted her.
It is also significant to note another important feature of her deposition. In paragraph 14 of her testimony, she stated that she had gone to her village after sixteen-seventeen days of the incident and during this period, she did not tell anyone that it was Chhabi Raj who had assaulted her. It must be noticed here that no doubt P.W.5 as stated had stayed back in the village for about 16-17 days after the incident and it is further admitted position that during this period she did not divulge the name of her assailant to anyone but it cannot be stretched to imply that she did not divulge the name of assailant out of fear. It is on the record that it was for the first time in court that she named the appellant as her assailant. We have searched the entire record to find out as to when she divulged the name of her assailant for the first time after the incident but there is nothing anywhere in the entire record except that it was for the first time that she divulged the name of appellant as her assailant in court. There is no denying of the fact that the appellant was arrested within a span of four days after the incident i.e on 25.9.2003. Even if it be assumed that she was terrified on account of accused being let loose, there is nothing to show that even after arrest of the appellant, she divulged the name of the appellant as her assailant.
The Apex court in the case of State of Assam v. Mafizuddin Ahmad (1983) 2 SCC 14, administered caution about acceptability of evidence of a child witness and observed as under:
".....the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring."
In the case in hand, it is admitted position, the evidence of P.W. 5 Suneeta ,child witness was recorded for the first time in court after about one year of the incident.
In the case of State of U.P. v. Ashok Dixit (2000) 3 sCC 70, the Apex Court did not rely on the identification of the accused for the first time in court. The observation of the Apex Court is to the following effect.
"Regarding accused Chaman Lal after the occurrence, there was no test identification parade and for the first time, P.W. 2 identified the accused Chaman Lal in the Court. This identification cannot be accepted."
In view of the above discussion, we converge to the irresistible view that it would not be at all safe to rely on the testimony of P.W.5 Sunita as the same, as would transpire from above discussion, was tutored and therefore her testimony is liable to be discarded for the reasons that it was not forthcoming immediately after the occurrence and it was for the first time after elapse of one year that she named the appellant in the court in her deposition and by this reckoning, the explanation which was given primacy by the trial court for belated disclosure, does not commend to us for acceptance.
The last circumstance to be reckoned with is recovery of Banka. The learned Sessions Judge believed the recovery of Banka on the pointing out of appellant but the serologist report is inconclusive because blood was found to have disintegrated attended with the circumstance that the statement of accused regarding concealment which is admissible under section 27 of the Evidence Act was not put to the accused under section 313 Cr.P.C. Thus we are of the view that this circumstance too has got no probative value.
As a result of foregoing discussion, we are of the view that the judgment of order rendered by the trial court convicting and sentencing the appellant as aforesaid cannot be sustained and the same is liable to be set aside.
The appeal is allowed. The judgment and order of the court below is set aside.
The appellant if in jail and if not wanted in any other case, shall be set free forthwith and the bonds shall stand discharged.
Reference is rejected.
MH 20.10.2010