State vs Narej Sheikh on 30 October, 2018

[Cites 12, Cited by 0]

Delhi District Court

State vs Narej Sheikh on 30 October, 2018

 IN THE COURT OF  ADDITIONAL SESSIONS  JUDGE03
 (NORTH EAST), KARKARDOOMA COURTS, DELHI.


PRESIDED BY: LALIT KUMAR, DHJS

SC No. 125/16
State Vs Narej Sheikh
FIR No. 222/16
U/s. 302 IPC
PS : Seelampur



State

                                              Versus

Narej Sheikh
s/o Lalu Sheikh
r/o Village Jalalpur Danga Para Beldonga, 
West Bengal.
Presently r/o B487, Buland Masjid, Shastri
Park, Delhi.


Date of Assignment                                   :           28.07.2016
Date of Arguments                                    :           12.09.2018
Date of Pronouncement                                :           25.10.2018


JUDGMENT : 


1.

Prosecution case: The prosecution case as per charge sheet is that on 19.03.2016 at about 2.10 p.m., Ct.Raj Kumar (PW6) came there and handed FIR No.222/16 State Vs. Narej Sheikh 1/29 over copy of DD no.17A Ex.PW 1/A to ASI Data Ram (PW19) describing that one man killed his daughter at his house near Bulland Masjid. PW19 alongwith PW6 and HC Vidya Dhar(PW11) already present with him reached at H.No.E 487, near Bulland Masjid. On reaching the said house, PW19 found that one man was being beaten by many persons, whose name was revealed later on as 'Narej Sheikh'. PW19 saved him with the help of public person Zarinuddin @ Zareenu (PW7) and custody of Narej Sheikh was given to PW11. Thereafter, PW19 and PW6 went to JPC hospital and collected the MLC of injured Suraiya mark PW 6/1. It was also revealed that injured Suraiya was declared 'brought dead'. PW19 called the crime team officials. On seeing the dead body, PW19 noticed marks on the forehead, face and neck of the deceased. He called ERV vehicle to get shifted the dead body in the mortuary of GTB hospital. Master Rahul (PW27) who is the brother of deceased met him in JPC hospital. Photographs Ex.PW 4/A1 to Ex.PW 4/A4 of the dead body were taken by the Crime Team Officials (photographer). Thereafter, he alongwith brother of deceased Rahul and crime team officials reached at the house of accused where some meat was kept on the floor of the room besides one cloth piece (Angocha) and Belan. PW27 had pointed out the place of incident. Thereafter, photographs of the house of the accused Ex.PW 4/A5, Ex.PW 4/A6, Ex.PW 4/A8, Ex.PW 4/9, Ex.PW 4/A 11, Ex.PW 4/A13, Ex.PW 4/A15 and Ex.PW 4/A16 were taken and at that time, mother of deceased Firdosa (PW28) also came there. The statement of eye witness Rahul (PW27) was recorded as Ex.PW 19/A. Rukka Ex.PW 2/A was prepared and sent to PS for registration of FIR for offence u/s 302 IPC. In the meantime, IO Inspector Pramod Kumar (PW29) came at the FIR No.222/16 State Vs. Narej Sheikh 2/29 spot and all the documents of this case were handed over to him. Thereafter, PW11 came at the spot alongwith rukka and copy of FIR and he delivered the same to PW29 for investigation. On the basis of the aforesaid, the prosecution filed its chargesheet for the offence punishable under Section 302 IPC against accused .

2 This chargesheet committed to this court after compliance of Section 207 Cr.P.C.

3 Charges under Section 302 IPC framed against accused vide an order 10.08.2016 and he pleaded not guilty and claimed trial.

4. To prove the allegations, prosecution has examined PW1 W.ASI Mary Rose, PW2 HC Satish Kumar, PW3 HC Dinesh Chand , PW4 Ct.Mahavir , PW5 SI Suman Kumar, PW6 Ct.Raj Kumar, PW7 Zarinuddin, PW8 Muntazim, PW9 Ct.Sonu, PW10 HC Ram Kishore, PW11 HC Vidya Dhar, PW12 SI Harish Chander, PW13 Ct.Vipin, PW14 Smt.Tuntooni, PW15 Ct.Manoj Kumar, PW16 Bhola Sheikh, PW17 Aasim Sheikh, PW18 Inspector Ram Avtar, PW19 ASI Data Ram, PW20 Dr.Vishwajeet Singh, SR GTB hospital, PW21 Inspector Mahesh Kumar, PW22 Dr.Adiba, CMO, JPC hospital, PW23 Ct.Sanjeev Kumar, PW24 Rubina, PW25 Sh.Dinesh Kumar, the then Ld.MM, PW26 Iqbal, PW27 Master Rahul, PW28 Firdosa and PW29 Inspector Pramod Kumar and closed PE.



5       PW1 W.ASI Mary Rose was on duty as duty officer and has proved


FIR No.222/16                                State Vs. Narej Sheikh                                                 3/29

on record DD no.17 A as Ex.PW 1/A and thereafter matter was assigned to ASI Data Ram.

6 PW2 HC Satish Kumar has proved on record rukka as Ex.PW 2/A, endorsement on the rukka as Ex.PW 2/B, copy of FIR as Ex.PW2/C, copy of DD no.21 A as Ex.PW 21/D, certificate u/s 65(B) of Indian Evidence Act as Ex.PW 2/E. 7 PW3 HC Dinesh Chand was on duty as MHC(M) and has proved on record copy of entry in register no.19 at S.No.3735 as Ex.PW 3/A. 8 PW4 Ct.Mahavir has deposed that on 19.03.2016 he alongwith crime team Incharge SI Suman Kumar and finger Print proficient ASI Surender Prasad reached in emergency of JPC hospital at about 6.15 p.m. where Inspector Pramod Kumar alongwith other police officials met them. PW4 had taken 16 photographs of jhuggi from inside and outside as Ex.PW 4/A1 to Ex.PW 4/A16. PW4 has also proved certificate u/s 65(B) of I.E.Act as Ex.PW 4/B. 9 PW5 SI Suman Kumar has reiterated on the same lines as deposed by PW4 Ct.Mahavir. PW5 has proved SOC report as Ex.PW 5/A. 10 PW6 Ct.Raj Kumar has deposed that on 19.03.2016, on receipt of DD no.17A Ex.PW 1/A, I had delivered the same to ASI Data Ram and thereafter he alongwith ASI Data Ram and HC Vidhya Dhar reached at FIR No.222/16 State Vs. Narej Sheikh 4/29 Shastri Park, near Bulland Masjid where accused Narej Sheikh was beaten by the crowd. He saved the accused and custody of accused was given to HC Vidya Dhar at the spot and he was deputed as guard there. He has further deposed that ASI Data Ram collected the MLC of injured Suraiya mark PW 6/1. PW6 took the dead body to the mortuary of GTB hospital .

11 PW7 Zarinuddin has deposed that on 19.03.2016 at about 2.00 p.m. he was present at his house and on hearing the noise from the house of accused, he came out and saw that mohalla people were knocking the door of the house of accused. Accused tried to run away from the spot. He alongwith Muntazim overpowered accused near the main gate of house. One Rahul aged about 910 years told them that his step father had given beatings to his sister aged about 3 years. Public persons gathered at the spot and they took the injured to JPC hospital for medical examination. Public person Muntazim had made a call at 100 number and police officials came at the house of the accused within 10 minutes. He has further deposed that later on, it was revealed that doctor declared the injured Suraiya dead. Dead body was received by her mother Firdosa in his presence.

12 PW8 Muntazim has deposed that on 19.03.2016 at about 2.00 p.m. he heard noise from the house of accused and noticed that mohalla people were knocking the door of house of accused. Accused tried to run away from his house, but he was overpowered by Zarinuddin and other mohalla people. He further deposed that step son of accused namely Rahul met them and told that accused had given beatings to his sister aged about 3 years mercilessly.

FIR No.222/16 State Vs. Narej Sheikh 5/29 Injured was taken to the hospital. He had made a call at 100 number by using his own mobile phone number and mohalla people gave beatings to the accused. He further deposed that Zarinuddin produced the accused before the police and it was revealed later on that doctor declared the injured baby as dead.

13 PW9 Ct.Sonu has deposed that 19.03.2016, he was posted as driver of ERV vehicle. He has further deposed that at about 3.50 p.m. HC Ram Kishore on receipt of telephonic call of ASI Data Ram reached at JPC hospital and from there he alongwith HC Ram Kishore and Ct.Raj Kumar took the dead body of female baby to GTB hospital. He further deposed that Ct.Raj Kumar got preserved the dead body in mortuary for postmortem examination.

14 PW10 H.C Ram Kishore has reiterated on the same lines as has been deposed by PW9 Ct.Sonu.

15 PW11 HC Vidya Dhar has deposed that on 19.03.2016, copy of DD no.17A was assigned to ASI Data Ram and thereafter, he , Ct.Raj Kumar and ASI Data Ram reached at H.No.B487, near Bulland Masjid, Shastri Park, Delhi where they found crowd and came to know that one female baby was taken to JPC hospital by some mohalla ladies. Accused was produced before them. ASI Data Ram alongwith Ct.Raj Kumar went to JPC Hospital leaving PW11 at the main gate of house of accused as a guard. ASI Data Ram came at the spot and recorded statement of Rahul which is mark PW 11/1. Rukka FIR No.222/16 State Vs. Narej Sheikh 6/29 was prepared by IO and PW11 was sent to PS alongwith rukka for registration of FIR and after registration of the FIR, rukka and copy of FIR was delivered to Inspector Pramod Kumar at PS. Thereafter, he (PW11) alongwith Inspector Pramod Kumar. Accused was arrested vide memos Ex.PW 11/A and Ex.PW 11/B. Disclosure statement of accused was recorded as Ex.PW 11/C. 16 PW12 SI Harish Chander Pathak had issued certificate on 05.05.2016 pertaining to correctness of PCR form and proper maintenance of computer system as Ex.PW 12/A. 17 PW13 Ct.Vipin has deposed that on 05.05.2016, he collected PCR form mark PW 12/1 and its certificate u/s 65(B) of Indian Evidence Act Ex.PW 12/A from Nodal Officer SI Harish Chander Pathak and had delivered the written request of IO to the Nodal Officer for the purpose of collecting the aforesaid PCR form and certificate etc. Thereafter, he returned to PS and handed over the same to the IO.

18 PW14 Smt.Tuntooni has deposed that accused is residing on rent near her residence and her husband is a scrap dealer and accused is a rickshaw puller. She has deposed that on the day of incident at about 3.00 p.m., she was sitting outside her house and Rahul came there after putting his sister aged about 2 ½ or 3 years in a lap. His sister was alive and conscious at that time. Several mohalla people gathered near her and one Smt.Rubina took the sister of Rahul to hospital for medical examination as she was sick. Rahul also FIR No.222/16 State Vs. Narej Sheikh 7/29 accompanied his sister and Smt.Rubina to the hospital. It was told to her by Rahul that his sister had fallen from the staircase. On next day, it was revealed that sister of Rahul has died in the hospital. Thereafter, PW14 turned hostile as she did not support the case of the prosecution.

19 PW15 Ct.Manoj Kumar has deposed that 19.03.2016 he was on duty at Channel no.127 in PHQ to attend the call of 100 number and on receiving the information that one man killed a child, he filled up the PCR form in the present case as Ex.PW 15/A. 20 PW16 Bhola Sheikh has deposed that he knows Hindi and Bangla. He knows Firdosa being his neighbour. On 29.03.2016, he alongwith police officials had come at Karkardooma Courts alongwith Rahul and Firdosa. He had translated the statement of Rahul in Hindi which was recorded by Ld.MM as the statement of Rahul was given in Bangla. It was told by Rahul to Ld.MM in his presence that Narej Sheikh, father of Rahul had given beatings to Kumari Suraiya.

21 PW17 Aasim Sheikh has deposed that on 20.03.2016, he had identified the dead body of Suraiya at mortuary, GTB hospital in presence of Smt.Firdosa as Ex.PW 17/A. 22 PW18 Inspector Ram Avtar has deposed on 15.05.2016, further investigation of this case was assigned to him as previous IO Inspector Pramod Kumar was transferred. On 30.05.2016, he recorded statements of HC Ram Kishore, Ct.Sonu, ERV officials u/s 161 Cr.PC. He has proved FIR No.222/16 State Vs. Narej Sheikh 8/29 certificate u/s 65(B) of Indian Evidence Act as Ex.PW 2/E. He completed investigation and prepared chargesheet against accused Narej Sheikh for offence u/s 302 IPC.

23 PW19 ASI Data Ram is the IO of the case and has reiterated the same facts as deposed by PW11 HC Vidya Dhar.

24 PW20 Dr.Vishwajeet Singh has proved postmortem examination report in respect of deceased Suraiya as Ex.PW 20/A. As per the report, on external examination, following injuries were found: External Injuries:

1. Reddish contusion, 2.0 x 1.2 cm present over right side forehead, 2.2 cm from midline and 1.0 on above right eyebrow.

2. Reddish contusion, 3.4 x 3.2 cm present over left side forehead, 0.2 cm from midline and 3.0 cm above left eyebrow.

3. Reddish contusion, 2.0 x 1.6 cm present over left mastoid and back of left pinna.

4. Reddish contusion, 3.0 x 1.5 cm present over left mastoid and back of left pinna.

5. Reddish contusion, 1.2 x 1.0 cm present over right side face, 4.0 cm from midline and just below lateral lend of right eyebrow.

6. Reddish contusion, 4.6 x 4.2 cm present over right side cheek, 5.0 cm from midline and 1.5 cm below right eyebrow.

7. Reddish contusion, 0.9 x 0.5 cm present over right side face, 2.5 cm from midline and 1.0 cm below lower lip.

FIR No.222/16 State Vs. Narej Sheikh 9/29

8. Reddish contusion, 1.5 x 1.4 cm over right side of chin, 1 cm from midline.

9. Reddish contusion, 2.4 x 1.0 cm over left side of chin, 3 cm from midline.

10. Reddish contusion, 6.0 x 5.5. cm present over left side cheek, 5 cm from midline and 1.5 cm below lateral end of left eyebrow.

11. Reddish contusion, 2 x 1 cm over left shoulder top.

12. Reddish contusion, 5 x 4.5 cm present over right side abdomen, 5.0 cm from midline and 12.0 cm below middle of right clavicle.

13. Reddish contusion, 4.5 x 4.2 cm present over right side middle back, 4.0 cm from midline and 2.5 cm below. Inferior angle of scapula. Internal examination revealed that Scalp: Extra vasation present over bilateral frontotemporal and midline occipital region and bilateral temporalis muscle. Skull:NAD Brain: 960 gm, subdural hemorrhage over both cerebral hemisphere. Subarachnoid hemorrhage over bilateral fronto parietal region.

Neck: NAD, Chest cavity contains about 500 ml blood. Ribcage: Left NAD, Right fracture of 7th to 9th rib in midclavicular line and posterior vertebral line with extravasation. Lungs: Left - 35 grm, NAD, Right 50 gm, parenchymal deep laceration of lower lobe both anteriorly and posteriorly. Heart 40 grm, NAD, Peritoneal cavity contains about 500 ml. Blood. Stomach Distended due to putrifying gases. Liver: 315 gm, parenchymal deep laceration.Spleen: 30 gm. Kidney: Right - 25 gm, Left - 20 gm. Urinary bladder: NAD Pelvis and Vertebra: NAD.

Time since death was about one day. Cause of Death: Shock as a FIR No.222/16 State Vs. Narej Sheikh 10/29 result of antemortem injury to head, chest and abdomen produced by blunt force impact. All injuries were antemortem in nature. Injury No.1, 2, 3, 4, 12 and 13 are sufficient to cause death individually and collectively in ordinary course of nature. Injury No.1 to 13 is produced by blunt force impact.

25 PW21 Inspector Mahesh Kumar has deposed that on 11.04.2016 has deposed that he had prepared scaled site plan as Ex.PW 21/A. 26 PW22 Dr.Adiba, CMO, JPC hospital has proved the MLC in respect of patient Suraiya as Ex.PW 22/A. 27 PW23 Ct.Sanjeev Kumar has deposed that on 19.03.2016, he was on duty as Special Messenger and he delivered copy of FIR of present case to Ld.MM, DCP and ACP concerned one by one.

28 PW24 Rubina has deposed that accused was residing alongwith his family in her neighbourhood in the year 2016. On 19.03.2016 at about 2.00 p.m., one neighbour namely, Tuntooni was also present there and Rahul, son of accused came to them alongwith her sister Suraiya aged about 2 ½ years in a lap and stated that she was unwell. Suraiya was semi conscious at that time. Nothing was told by Rahul to her and Tuntooni as to what had happened with his sister. Thereafter, she alongwith some mohalla ladies had taken the Child Suraiya to JPC hospital where doctor declared her dead. Thereafter, PW24 was turned hostile as she did not support the prosecution case.

FIR No.222/16                               State Vs. Narej Sheikh                                                 11/29
 29      PW25   Sh.Dinesh   Kumar,   the   then   Ld.MM  has   proved   proved

application for recording statement of eye witness Rahul which has been moved by the IO as Ex.PW 25/A, statement of Rahul with the help of interpretor as Ex.PW 25/B, proceedings u/s 164 Cr.PC as Ex.PW 25/C. 30 PW26 Iqbal has deposed that dead body of Suraiya was identified by Smt.Firdosa and one Aasim Sheikh in his presence. He has further deposed that dead body of the deceased was handed over to Firdosa for burial and a receipt for handing over the dead body was prepared as Ex.PW 26/A. 31 PW27 Master Rahul has deposed that about one year, he alongwith his mother, sister Suraiya and accused Narej Sheikh was residing in a jhuggi near Masjid, Shastri Park, Delhi. His mother used to leave home at about 8 a.m.in the morning for her work. Accused Narej Sheikh was a rickshaw puller. On the day of incident, his mother had left home at about 8.00 a.m.as routine and accused Narej had left home at about 8.00 a.m.and returned back at about 10.00 a.m.with some meat. Accused Narej asked him to bring oil to cook meat and he provided him bottle for the same. His sister insisted to accompany him, but accused Narej refused and she started weeping. When he came back to his home with oil, he saw that accused Narej was beating his sister by a belan and also caught her by legs and hit her against ground. Accused Narej twisted his arm and tied his mouth with gamcha. PW27 came outside and raised alarm due to which neighbours collected at the spot. Someone informed the police and his sister was removed to the hospital, but FIR No.222/16 State Vs. Narej Sheikh 12/29 his expired expired on the way to the hospital. He accompanied his sister to the hospital and on examination by the doctor, his sister Suraiya was declared 'brought dead'. PW27 has further deposed that police officials accompanied him from hospital to the spot. His mother returned back to home at about 4.00 p.m. His statement Ex.PW 19/A was recorded by the police.

32 PW28 Firdosa has deposed that she met with accused Narej about 20 days prior to date of incident at the house of Bua of accused at Theka, Shastri Park. She came to Delhi about 1 ½ month prior to the date of incident alongwith her two children namely Rahul and Kumari Suraiya and mother in law of her sister. She left her remaining two children with her mother. She did not remember the name of landlord or exact address of her residence with accused. She was doing job of household in the houses and accused Narej was a rickshaw puller. She was residing with accused in livein relationship. She did not know as to when the incident had taken place, however the incident pertains to about one year and 2 months back. She left her house at about 8 a.m.to her job work leaving her both children and accused at home. At about 4.00 p.m.when she came back to her home, she was informed that accused had killed her daughter by beatings. His son narrated the incident to her mother. She has further deposed that articles were scattered in the room and blood was spread all over the floor. There were blood stains on the clothes lying in the room and one gamcha was smeared with blood. She has proved seizure memo of gamcha as Ex.PW 28/A. 33 PW29 Inspector Pramod Kumar has deposed that on 28.03.2016, FIR No.222/16 State Vs. Narej Sheikh 13/29 statement of eye witness Rahul Ex.PW 25/A was recorded by Ld.MM in presence of interpreter Bhola Sheikh. It was revealed in the said statement that accused had strangulated deceased by gancha/angocha. He visited spot in presence of mother of deceased and interpreter. One Angochha was seized vide memo as Ex.PW 28/A. Supplementary statement of Firdosa, mother of deceased was recorded. He has further deposed that on 09.05.2016, he prepared scaled site plan of place of incident and thereafter he handed over the case file to MHC(R) as further investigation was handed assigned to some other IO due to his transfer.

34 After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C and his statement was recorded wherein accused preferred to lead Defence Evidence. Accordingly, accused in support of his defence has examined DW1 Smt.Salma and DW2 Gulam Peer.

35 D.W1 Salma has deposed that in the month of March 2016, deceased Child Suraiya came to her house and ate food and thereafter she went away and played with her brother Rahul and other children at about 2 p.m. Mohalla people gathered outside the house of accused which is a chowk as electricity of the area was cut off. After some time, Rahul came there carrying his sister and told to Tuntooni that his sister had fallen down from the stairs when she was playing with other children. She has further deposed that after 1 ½ hours, she came to know that Suraiya had died in the hospital. She has deposed that accused Narej Sheikh is a rickshaw puller and in the afternoon he visited his house to prepare food for daughter Suraiya and son Rahul and thereafter left FIR No.222/16 State Vs. Narej Sheikh 14/29 for plying rickshaw. Smt.Firdosa, mother of deceased Suraiya left her house for work at about 6/6.30 a.m. and returned back to home at about 6/7 p.m. She has deposed that accused loves his both children and always looked after his children.

36 D.W2 Gulam Peer has deposed that he used to do the business of Kabari. He has reiterated the same facts as has been deposed by D.W1 Smt.Salma.

37 I have heard the arguments on behalf of Sh.Zenul Abedeen, Ld.Addl.PP for the State and Sh.Vinay Modi, Ld.Counsel for accused Narej Sheikh and have perused the record carefully.

38 Ld.Addl.PP for the State has argued that since the eye witness PW27 Master Rahul has deposed that accused was in liveinrelationship with her mother namely Firdosa and accused used to ask his mother to get married with him, otherwise he would kill her daughter, the motive of the offence stands proved. It is further argued by Ld.Addl.PP for the State that the injuries sustained by the deceased Suraiya are sufficient to cause her death , as has been corroborated by the medical evidence.

39 On the other hand, Ld.Counsel for the accused has argued that there is no mention of Angocha either in the FIR or in the statement of relatives or Master Rahul, but after 10 days police has come with a new story that angocha has been recovered at the spot. Ld.Counsel for the accused has FIR No.222/16 State Vs. Narej Sheikh 15/29 further argued that during cross examination of PW8 Muntazim, he has deposed that he did not know the names of the ladies who had taken the injured to JPC hospital for medical examination. It is not believable that he did not know the names of the mohalla people when he himself is living in the same gali. PW11 HC Vidhya Dhar during cross examination has deposed that 1520 persons were present in front of house of the accused when they reached there, whereas other witnesses had deposed that about 4050 people were there and as such the statement of witness is conflicting with each other and also there is not a single person who has seen the incident and it reveals that witnesses are assuming the incident on the basis of gossips of the crowd/mohalla people and as such the testimony of the witness appears to be not trustworthy.

40 It has further been argued by Ld.Counsel for accused that the certificate u/s 65 B of Indian Evidence Act issued by PW12 SI Harish Chander Pathak is a fabricated document as same can be seen during cross examination of PW13 Ct.Vipin who has deposed that he did not remember as to whether the certificate Ex.PW 12/A was given to him by Nodal Officer in sealed envelope or in open condition.

41 It has been submitted by Ld.Counsel for accused that accused is an innocent person and he is not responsible for the incident which can be corroborated from the statement of PW14 Smt.Tuntooni who is residing on rent near his residence has deposed that brother of deceased/Master Rahul told her that his sister had fallen on the staircase.

FIR No.222/16                               State Vs. Narej Sheikh                                                 16/29
 42      During   course   of   arguments,   Ld.Counsel   for   accused   has   further

submitted that PW16 Bhola Sheikh during cross examination has deposed that whatever he deposed before the court, same has been brought into his notice by his wife namely Shaina and, therefore, the testimony of PW16 can not be reliable being hearsay.

43 It has been argued that it has been deposed by PW19 ASI Data Ram during examination that photographer had taken the photographs of the house of accused from different angles where household articles were lying here and there, whereas no photographs of Belan and Angocha have been placed on record.

44 With regard to the testimony of PW24 Rubina, it has been argued by Ld.Counsel for accused that this statement only shows that this is a case of accident only as nothing was told by Master Rahul to her or Tuntooni as to what had happened with his sister which has been reflected in the statement of PW24.

45 Ld.Counsel for the accused further argued that testimony of PW27 Master Rahul is not trustworthy as he is coming with different story stating that accused used to ask his mother that she should get married with him otherwise he would kill her daughter, but he has never told anyone about any threat and also the fact that his mother was in liveinrelationship with accused without marriage. It has been argued that the child eye witness FIR No.222/16 State Vs. Narej Sheikh 17/29 Master Rahul is changing his statement again and again and , therefore, his testimony can not be read against the accused.

46 It has been argued that when PW28 Firdosa, wife of the accused was not present at the time of incident then how she can come to the conclusion that accused used Gamchha to harm the deceased and as such her testimony can not be trustworthy.

47 Since there is only one eye witness who is a child, therefore, before proceeding further, Law with regard to child witness is being discussed as under: The scope of the reliability of the testimony of child witness has been discussed by the Hon'ble Supreme Court of India in Panchhi v. State of UP (1998) 7 SCC 177 and Md. Kalam v. State of Bihar (2008) 7 SCC 257 and held that "the evidence of the child witness cannot be rejected outright but the evidence must be evaluated 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. The court has to assess as to whether the statement of the victim before the court is the voluntary expression of the victim and that she was not under the influence of others".

It is further held in Shivasharanappa v. State of Karnataka (2013) 5 SCC 705 thereby relying upon Dattu Ramrao v. State of Maharashtra (1977) 5 SCC 341 that "a child witness, if found competent to depose to the facts and is reliable, such evidence could form the basis of conviction. The evidence of a child witness and the credibility thereof would depend upon the FIR No.222/16 State Vs. Narej Sheikh 18/29 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 demeanor must be like any other competent witness and there is no likelihood of being tutored. Thereafter, the court proceeded to lay down that there is no rule or practice that in every case the evidence of such a witness should be corroborated before a conviction can be allowed to stand but, as a rule of prudence, the court always finds it desirable to seek the corroboration to such evidence from other dependable evidence on record." It is further held that it is well settled law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not must to record a conviction, but as rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence place of record. The principles that apply for placing reliance on the solitary statement of the witness, namely that the state is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."

48 It is further held in State of Rajasthan v. Chandgi Ram & anr (2014) 14 SCC 596 that "the evidence of the child must reveal that he was able to discern between right and wrong, whether he fully understood the implications of what he was saying and it inspires confidence and there is no embellishment or improvement there court may rely upon his evidence and FIR No.222/16 State Vs. Narej Sheikh 19/29 inference can be drawn from his testimony that he is tutored or not."

49 In view of the above said legal proposition laid down by the Hon'ble Apex court in the above said judgments, the testimony of the child witness can be relied upon on the basis of his understanding to the questions and the pattern of his answers to those questions, and testimony does not suffer by any infirmity, even if the testimony of witness is recorded without oath as the Oath Act does not affect the admissibility of such evidence recorded without oath as laid down in Rameshwar v. State of Rajasthan AIR 1952 SC 54.

50 Now, coming to the facts of the present case. At the outset, it is relevant to discuss as to whether the death of deceased Suraiya was homicidal or suicidal.

51 Nature of Death: To connect the accused, it is to be determined first as to what is the nature of the death, whether it is suicidal or homicidal. Postmortem report is the main document which determines the nature of death. PW20 Dr.Vishwajeet Singh conducted the postmortem on the dead body of Suraiya and has observed that the dead body of female child wrapped in white sheet and multicolour gamcha and wearing no clothes, eyes closed, mouth closed, rigor mortis developed over whole body. Postmortem staining present over back and fixed, greenish discolouration over chest and abdomen. The following external injuries have also been observed by PW20 Dr.Vishwajeet Singh on the dead body in his PM report Ex.PW20/A which is as under:

FIR No.222/16                               State Vs. Narej Sheikh                                                 20/29
 External Injuries: