Pappu vs State
2023 Latest Caselaw 22662 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:168852-DB
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 2284 of 1991
 

 
Appellant :- Pappu
 
Respondent :- State
 
Counsel for Appellant :- A.S. Awasthi,Ronak Chaturvedi A/C,Sanjeev Ratan
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

1. This appeal is directed against judgement and order of conviction and sentence dated 11.11.1991, passed by the VIIth Additional Sessions Judge, Kanpur Nagar in Sessions Trial No.210 of 1988 (State Vs. Pappu), Police Station Chakeri, District Kanpur Nagar, whereby the accused appellant has been convicted and sentenced to life imprisonment under section 302 IPC and ten years rigorous imprisonment under section 376 IPC.

2. A written report in the present case is made by Chhedi Lal (PW-1), who happens to be the father of deceased, stating that he is a resident of Shivkatra, and while he was sitting outside his house at about 4.30 in the evening his son Vijay Kumar (PW-2) and Bechu Pandey (not produced) came running and disclosed that they were playing alongwith Sarita (deceased) near the water tank at Shivkatra when a wheatish complexion boy, who called himself Pappu, came and asked them to come with him, so that he would arrange catch of rabbit for them. On such assurance the wheatish complexion boy took them in a house near the military form, where nobody lived and outside the house he asked as to who would to take the rabbit first, on which Sarita raised her hand. The wheatish complexion boy then took the deceased in the house and after a while screams of deceased were heard and she was heard weeping. PW-2 and Bechu Pandey came running to inform this fact to the informant. The informant alongwith Sarju Prasad Jaiswal, Laxmi Narain and Baburam came to the deserted house near the military form and found the deceased lying near a wall with her mouth open and it appeared that she had died. From the appearance of the victim it looked as if she had been subjected to sexual assault and thereafter the accused, who called himself Pappu, strangulated her to death. The incident is reported to have occurred at about 2.00-3.00 in the afternoon. The written report has been scribed by Ram Prasad (not produced). On the basis of such written report, the FIR came to be registered under Section 376, 302 IPC, wherein the accused has been described as wheatish complexion thin boy, named Pappu. The FIR has been lodged at 5.00 pm on the date of incident i.e. 20.2.1988. The investigation proceeded and the inquest was conducted at about 6.15 pm on the date of incident. The inquest witnesses noted the condition of the deceased and were of the opinion that postmortem be got conducted in the matter. Postmortem, accordingly, has been conducted at 2.30 pm on 21.2.1988, wherein the death is observed to have occurred about one day earlier. The deceased was 10 years old girl, who had average built body; her eyes were closed; abdomen was distended and mouth half open. The condition of body noted during postmortem is as under:-

"Death is before about one day. Average built body. Eyes are closed, Abdomen is distended. Mouth 1/2 open. Nails are cyanosed. Rigor mortis is present in both extremetes. PM staining is present in back, buttock & thigh."

3. The cause of death is due to throttling and asphyxia. Following ante-mortem injuries have been found on the victim:-

"(1) Four abrasion in an area of 6cm x 3cm (of size 1/2cm to 1/4cm) on the Rt. side of Neck at 4cm below the angle of Rt. mandible.

(2) Abraded contusion 1cm x 1/2cm on Lt. side of Neck at inside & below 3cm of Rt. angle of Lt. mandible.

(3) Abrasion 1/2cm x 1/4cm on the front of Lt. wrist joint.

(4) Abrasion 1/2cm x 1/4cm on the front of Rt. wrist joint.

(5) Lacerated wound 3cm x 1cm x vaginal cavity deep at the vaginal aperture. "

4. The investigating officer collected bloodstained earth and plain earth from the place of occurrence (Ex.Ka-10) and bloodstained Handkerchief, which was found near the place of occurrence (Ex. Ka-11). The investigation proceeded and ultimately a chargesheet came to be submitted against the accused appellant under Section 302, 376 IPC. The concerned magistrate committed the case to the court of sessions, where it got registered as Sessions Trial No.210 of 1988.

5. The concerned court framed charges against the accused appellant under Section 376 and 302 IPC, which were read out and explained to the accused in Hindi, who pleaded not guilty and demanded trial.

6. During trial, the informant appeared as PW-1 and supported the prosecution case of his sitting in front of the house and receiving information from PW-2 Vijay Kumar and Bechu that they were playing near water tank where a boy named Pappu arrived and offered them to arrange a rabbit. The children playing there (including the deceased) were then taken to an empty house near the military form. The accused enquired as to who would take the rabbit first, on which the deceased raised her hand and the accused took her inside the house. It is only after hearing the screams of the deceased that PW-2 came to the first informant (PW-1) and when they reached the house, they found that deceased had died and she was also bleeding from her private parts. In the cross-examination, PW-1 has stated that he does not know the father of the accused, nor has he seen his house. This witness expressed ignorance about the fact that various other wheatish complexion boy exist in the locality with the name of Pappu. He has also admitted that he did not known the accused Pappu from before.

7. Vijay Kumar, who happens to be the brother of the deceased and is the sole eye-witness, is produced as PW-2. He has disclosed his age as 9 years when his statement was recorded. PW-2 has supported the prosecution case, as per which he was playing alongwith Bechu and deceased when Pappu came and offered to arrange rabbit at military form. Pappu, who was present in court, came and asked them to come to military form, where he would arrange a rabbit. In the cross-examination, PW-2 has admitted that various persons saw them coming towards the military form and that there was no door in the house. He had never earlier come to the area for catching rabbit. PW-2 then stated that he also went inside the house following the deceased and stayed for about 5 minutes. He also admitted that prior to this incident Pappu has never taken them anywhere. He had seen Pappu flying Kite near the water tank but he had never spoken to him earlier. PW-2 has stated that he does not know any other family members of the accused, nor is he aware of the house of Pappu. He has also admitted that other boys with the name Pappu exist in the locality, who also have wheatish complexion. PW-2 has specifically stated that he did not know the name of accused from before, and that he came to know of his name only after the investigating officer arrived. The statement of PW-2 in that regard is extracted hereinafter:-

"--- मै इसका नाम पहले नहीं जानता था। जब दरोगा जी आये तब उसका(पप्पू) नाम मैने जाना।---"

8. PW-3 is Dr. R.P. Singh, who has conducted the postmortem and has supported the prosecution case, as per which the deceased could have died on account of strangulation after her sexual assault. PW-4 is Head Constable Devishankar Dubey, who has proved the chik FIR and other police papers. PW-5 is one Shankar son of Ganga Umar, who initially claimed that the accused has confessed to his crime before him but later he has not fully supported the prosecution case. He has expressed ignorance about the incident and has also admitted that he appeared as a witness in 4-5 other cases. Not much, therefore, turns upon the testimony of PW-5.

9. PW-6 is Shivratan son of Dashrath, who claims that he saw the accused Pappu @ Chhedi Lal, present in court, running near the house of Malti Devi. It looked that something had happened or that he had done something and was trying to flee. He saw the accused at about 3.45 in the afternoon. He later came to know that the deceased has been done to death. This witness is a Home Guard and was working in the police for the last nearly 10 years. In the cross-examination, PW-6 has specifically stated that the I.O. never enquired about the parentage or identity of the accused. He also stated that he is not aware as to where Pappu lives now. He has further stated that accused was arrested 3 days after the incident and his statement was recorded 6-7 days later. He has not given any application to police about his having seen the accused running from the place of occurrence. The witness has denied the suggestion that as he is working for police, as such he has been made to give a false disclosure.

10. Investigating Officer Shankar Singh has appeared as PW-7 and has disclosed various steps taken during investigation by him. In his cross-examination, PW-7 has stated that in the written report there is no description of parentage or identity of the accused. Apart from wheatish complexion no other identity has been disclosed. He has also admitted that in none of the parchas during the investigation he has recorded statement of anyone regarding identity of the accused as Pappu. He claims that PW-2 in his statement had disclosed about Pappu being resident of his locality. The statement of PW-7, in that regard, is extracted hereinafter:-

"--- प्रथम सूचना मे वादी ने मुल्जिम की वल्दियता व शकुनियता कुछ भी नहीं लिखाया था। और उसके (Sic) सांवले रंग कोई भी दूसरी पहचान नही बताई थी। 20/02/88 की तफ्तीश में किसी भी फर्द में मुल्जिम पप्पू की वल्दियता व शकुनता रियाहसी पता का कोई बयान नहीं दिया। विजय ने अपने बयान में पप्पू को बताया था कि यह मेरे निवासी मोहल्ले का है।---"

This witness has also denied the suggestion that accused Pappu is disabled since birth, as his right leg is crippled.

11. The incriminating material produced during the investigation has been confronted to the accused, who stated in his reply under Section 313 Cr.P.C. that he has been falsely implicated on account of enmity.

12. The defence has produced Ram Prasad as DW-1 in order to prove that the accused is disabled and his right leg is crippled and therefore he cannot run. This witness has stated that the accused has good character and he is a poor person. The witness has been shown a news item published in newspaper Dainik Jagran on 18.7.1990 containing photograph of a boy living near Shivkatra water tank, who had criminal antecedent and was not of good character. DW-2 Rajaram has also been produced by the defence in support of its plea that the accused is disabled and cannot run. DW-2 has also been shown the newspaper report published at page 3 in Dainik Jagran on 18.7.1990, which contains the photo of Rajesh @ Pappu residing at Shivkatra near the water tank. This witness too has stated that accused has a good character.

13. Trial court on the basis of evidence led in the matter has found the testimony of PW-2 as also the testimony of PW-6 credible and reliable and on the strength thereof has ultimately convicted the accused appellant. Finding of guilt has been returned on the basis of material produced during trial.

14. Sri Ronak Chaturvedi, has appeared as Amicus Curiae in the present appeal and has argued that the accused appellant has been falsely implicated in the present case, inasmuch as the identity of the accused itself is not established and he has been implicated falsely by the police. Learned Amicus Curiae has referred to the statement of witnesses in order to contend that their testimony is contradictory and is not reliable. Learned Amicus Curiae has placed reliance upon a judgment of the Supreme Court in Hari Om alias Hero Vs. State of Uttar Pradesh, reported in (2021) 4 SCC 345, highlighting the principle to be followed in considering the testimony of child witness. Sri Chaturvedi has also placed reliance upon judgment of the Supreme Court in Amrik Singh Vs. State of Punjab, reported in (2022) 9 SCC 402, in order to submit that identity disclosed for the first time during trial, without any test identification parade, is not reliable where the witness had a fleeting glance of the accused.

15. Sri Amit Sinha, learned AGA, on the other hand, states that evidence on record clearly implicates the accused and that the testimony of PW-2 is wholly reliable. Learned AGA argues that there is no possible reason for any false implication of the accused. Argument is that considering the brutal manner in which the deceased has been subjected to sexual assault and then done to death merits no interference in the present case.

16. We have heard learned Amicus Curiae for the appellant, learned A.G.A. for the State and have perused the materials brought on record, including the trial court records.

17. The incident in the present case has occurred during afternoon of 20.02.1988. The postmortem report as also the inquest clearly supports the prosecution case about the deceased having been throttled to death. It is otherwise reflected from the postmortem report that the deceased had been subjected to sexual assault prior to her throttling. The testimony of PW-3, Dr. R.P. Singh, is also categorical in that regard, as per which the deceased could have died on account of sexual assault followed by her throttling. The testimony of witnesses is also to similar effect. The prosecution has, therefore, clearly proved that the deceased was subjected to sexual assault and thereafter throttled to death. The death itself is, therefore, proved to be homicidal.

18. This is a case of circumstantial evidence and the prosecution has relied upon the testimony of PW-2, who had seen the accused taking the children playing near the water tank to the deserted house on the pretext of offering them a rabbit and on a flimsy pretext took the deceased inside the house while asking the other two boys to wait outside. It is thereafter that PW-2 heard the screams of the deceased and rushed to his house to call his family members, and on their arrival at the deserted place they found the deceased dead. The prosecution has also relied upon the testimony of PW-5, who initially stated that extra-judicial confession has been made of the guilt by the accused, but during the course of trial PW-5 has not fully supported the prosecution case and, therefore, not much reliance can be placed upon it. The only other testimony on record is of PW-6, who claims to have seen the accused running away near the house of Malti Devi, where the dead body of the deceased was lying. It is on the strength of these materials that the prosecution alleges that the chain of events have been connected to establish the hypothesis of guilt against the accused, and that there is no other hypothesis consistent with the innocence of accused existing on record.

19. Law with regard to circumstantial evidence has been examined in a series of judgments by the Supreme Court. Reference can be made to the judgment of Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, which has acquired the status of locus classicus. In para 152 to 154 of the judgment, the Supreme Court has observed as under:-

"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

20. The thrust of argument of Sri Chaturvedi, learned Amicus Curiae, in the facts of the present case, is that the identity of accused is not established. Learned Amicus Curiae submits that the prosecution has failed to establish the identity of the accused as being the person who had actually taken the children to the deserted place whereafter the deceased was found dead.

21. On the issue of identity of accused, we find from the perusal of written report (Ex.Ka.1) that accused has been identified as a thin boy, who called himself Pappu, and had wheatish complexion. The identity of accused with reference to his parentage or other attributes is missing. PW-1, who is the informant, is admittedly not the person who had seen the deceased taken to the deserted place by the accused and his testimony is hearsay, based upon the disclosure made to him by PW-2. PW-2 is the sheet anchor of the prosecution case. PW-2 has also not disclosed about the physical attributes of the accused except to say that he has wheatish complexion and called himself by the name Pappu. PW-2 has admitted that he had not known the identity of accused from before, although he had seen him flying kite near the water tank. PW-2 has also stated that he never spoke to accused earlier. This witness has admitted that there are other boys in the same locality i.e. Shivkatra, with the name Pappu. PW-2 has also admitted that he does not know the name of any other family members of the accused Pappu. He has also admitted that other boys named Pappu were also having wheatish complexion. Interestingly, PW-2 has categorically stated that he did not know the name of Pappu from before and that he came to know about his name as Pappu only after the Investigating Officer arrived. From the testimony of PW-2 it appears to us that identification of the accused as Pappu was made known to him only by the Investigating Officer and that he did not know the identity of accused from before.

22. The Investigating Officer has been produced as PW-7 and a specific question has been posed to him with regard to ascertainment of identity of accused. Investigating Officer has admitted in his statement that during the course of investigation he had not recorded statement of any witnesses on the aspect relating to identity of the accused. PW-7 has specifically stated that it was PW-2, who gave a statement to him that Pappu is a resident of his locality. In his further cross-examination PW-7 has stated that identity of accused was disclosed to him by Shiv Ratan son of Dashrath. On the aspect of identity there are contradictions in the version of PW-2 vis-a-vis PW-7, inasmuch as PW-2 has stated that only after arrival of PW-7 he came to know about the name of accused, whereas PW-7 has stated that identity of accused was made known to him by PW-2. PW-7 has also alleged that he came to know about the identity of accused from Shiv Ratan son of Dashrath. The testimony of PW-7 in that regard reads as under:-

"तफ्तीश के दौरान गवाह शिवरतन पुत्र दशरथ ने मुल्जिम की वल्दियता व शकुनता बतायी थी।"

23. PW-6 Shiv Ratan, however, has stated that Investigating Officer never enquired about the identity or parentage of accused from him. The statement of PW-6, in that regard, reads as under:-

"--- दरोगा जी ने वहां किसी से कुछ नही पूछा। दरोगा जी ने मुझसे मुल्जिम का नाम बल्दीयत व सकूनत न पूछा न मैने बताया। हमें नही पता कि पप्पू अब कहां रहता है। यह कहना गलत है कि मैने कोई घटना नही देखा न पप्पू को भागते देखा। यह कहना गलत है कि घटना ने देखने के कारण मुल्जिम की बल्दियत पता सरिता के पिता छेदी को नही बताया।---"

24. It is also worth noticing that statement of PW-6 has been recorded about 6-7 days after the incident. A suggestion has also been given to PW-6 that only because he was employed with police that he has been made to make a false disclosure.

25. The evidence on record, on the aspect of identity of accused, is therefore full of contradictions. The only identity disclosed of accused is of a boy with wheatish complexion, who is thin. PW-2 has specifically admitted that there are various other boys in the same locality with the same name Pappu, who have wheatish complexion. In the FIR the parentage of accused is not specified. The witnesses have otherwise shifted the source of information with regard to identity of accused upon one to another. PW-2 has stated that he came to know about the name of accused from Investigating Officer (PW-7). PW-7 has stated that he came to know of facts regarding identity of accused from PW-2 and PW6. PW-6 categorically stated that no question with regard to identity of accused were put to him by the Investigating Officer. We are, therefore, not impressed by the prosecution evidence on the aspect relating to identity of the accused.

26. There is yet another reason for us to think so. The main prosecution evidence in this case is PW-2, who at the time of recording of his statement was 9 years old. From the evidence it appears that PW-2 was 5-6 years old when the incident occurred. The testimony of PW-2, being of a child witness, has been examined by us carefully. In his statement made to police and even in the examination-in-chief PW-2 has categorically stated that the accused enquired as to who would take the rabbit first and the deceased raised her voice, whereafter the accused took the deceased inside the house leaving him and his friend Bechu Pandey, waiting outside the house. However, in the cross-examination PW-2 stated that he followed the deceased inside the house and stayed there for 5 minutes. PW-2 also admitted that there was no door in the house. In the event there was no door in the house and the witness had followed his sister inside the house, it is difficult to comprehend as to why he did not see the incident and why was it only on hearing of screams of the deceased that the witness was alarmed of some untoward incident.

27. PW-2 is a child witness, who is otherwise prove to tutoring. The witness has clearly stated that he could know the identity of the accused only after the Investigating Officer arrived. The version of Investigating Officer on the aspect of identity of accused has not been found convincing by us. The possibility of PW-2 having been tutored or informed about the identity of accused by the Investigating Officer, therefore, cannot be ruled out.

28. Law with regard to appreciation of the testimony of a child witness has been elaborately discussed by the Supreme Court in Hari Om alias Hero (supra). Necessity of corroboration has been acknowledged as a means of caution and prudent. Para 22 of the judgment in Hari Om alias Hero (supra) is reproduced hereinafter:-

"22. At the outset, we must note the perspective from which the evidence of a child witness is to be considered. The caution expressed by this Court in Suryanarayana [Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 : 2002 SCC (Cri) 413] that "corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence" is a well-accepted principle. While applying said principle to the facts of that case, this Court in Suryanarayana [Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 : 2002 SCC (Cri) 413] observed : (SCC pp. 133-35, paras 5-9)

"5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. 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 PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise 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.

6. This Court in Panchhi v. State of U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561] held that the evidence of the 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 an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law (vide Prakash v. State of M.P. [Prakash v. State of M.P., (1992) 4 SCC 225 : 1992 SCC (Cri) 853] ; Baby Kandayanathil v. State of Kerala [Baby Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667 : 1993 SCC (Cri) 1084] ; Raja Ram Yadav v. State of Bihar [Raja Ram Yadav v. State of Bihar, (1996) 9 SCC 287 : 1996 SCC (Cri) 1004] and Dattu Ramrao Sakhare v. State of Maharashtra [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri) 685]).

7. To the same effect is the judgment in State of U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] .

8. In this case Bhavya (PW 2) when appeared before the trial court was of 6 years of age. After questioning the witness, the Sessions Judge found, "though the girl is 6-years-old she is active and she understands everything". Without administering the oath to the witness her statement was recorded wherein she stated:

'I know Saroja, I call her as ammayi, she is my aunt. The person sitting in the court box is my uncle. His name is Suryanarayana. Since I call him as uncle, he is my uncle.

My aunt Saroja is now dead. I know how she died. Several days back after taking lunch my ammayi i.e. my aunt Saroja and myself went to the lake to wash the clothes and to take bath. On that day, my uncle Suryanarayana sitting in the court pierced with a knife the stomach and neck of my ammayi. Hence she suffered injuries and her entire body covered with blood. My ammayi while running after being injured, fell down, I screamed. Immediately I ran and told my father and mother that uncle killed the aunt. If the knife is shown I can identify (a white cloth bag sealed, was opened). I have seen the knife now. With the same knife that day my uncle pierced my ammayi (this was marked as Ext. P-01) on that day. Police asked me as to what happened, I have told everything to the police.'

9. In her cross-examination the witness stated that before the date of occurrence the deceased was living with her (witness) parents. At the time of occurrence the witness used to go to Anganwadi school. The witness denied the suggestion that she had not gone with the deceased to wash the clothes. Nothing favouring the defence could be extracted out of her in the cross-examination. She denied the suggestion that 'my uncle did not pierce my aunt with the knife. It is not correct that I have not seen the knife in the hands of my uncle'. The trial court as well as the High Court accepted her testimony as no inherent defect was pointed out by the defence. We also find no reason to take a contrary view. The mere fact that her mother had told that she did not know any other language except Malayalam and that the words spoken to by her were not in that language cannot be used as a ground to reject her testimony. The child and her parents conversed in Malayalam language at their residence which was explained to the investigating officer in the language which was understood by him. There is no ground of doubting the veracity of the testimony of this child witness as we find that her name is mentioned in the FIR which is proved to have been recorded immediately after the occurrence. P.H. Krishnappa, the Tahsildar who prepared the inquest report is also proved to have recorded the statement of this child witness, wherein, she is shown to have made similar deposition. Otherwise also there is sufficient corroboration on record to rule out the possibility of PW 2 being tutored or used for ulterior purposes by some alleged interested persons. In the absence of any inherent defect we do not find any substance in the plea to reject the testimony of this child witness. The statement of PW 2 shows that the deceased and the appellant were living together as husband and wife and she used to address them as uncle and aunt. Her testimony to the effect of the deceased living with PW 1 is sufficiently corroborated by the other evidence led in the case. The factum of the deceased having received stabbed wound with a knife is proved by the medical evidence. The recovery of the knife at the instance of the appellant, in consequence of his disclosure statement, leaves no doubt to believe her statement. The place of occurrence being near the water tank has not been seriously disputed. The report received from FSL as per Ext. P-15 shows that blouse (MO 2), towel (MO 3) and the bangle pieces (MO 4) of the deceased and the knife (MO 1) which was used in the commission of the crime, the towel (MO 7), lungi (MO 6) and shirt (MO 5) of the appellant were found to be stained with blood. Dr Ram Dass (PW 12) has opined that the injuries found on the dead body of the deceased could be caused with a weapon like MO 1."

29. In Hari Om alias Hero (supra) the Supreme Court was dealing with the evidentiary value of the statement of a child witness on the basis of which four persons were awarded death sentence. The Court evaluated the testimony of child witness with reference to other materials on record and ultimately found the testimony of child witness not to be reliable. Para 26 to 28 of the judgment in Hari Om alias Hero (supra) are also reproduced hereinafter:-

"26. Having culled out the essential features emerging from the record, we must state that we find it difficult to place reliance upon the testimony of PW 5 Ujjwal and in our view, the said version cannot be made the basis of conviction of Hari Om. It is true that the assertion made by him that Hari Om used to be a tenant in their house was supported by PW 2 Ompal Singh. Even if we accept that accused Hari Om was a known face to PW 5 Ujjwal, and the fact that the incident occurred inside the house where PW 5 Ujjwal would naturally be available, but on the issue whether he had witnessed the incident, the glaring inconsistencies on record cannot be discarded. In Suryanarayana [Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 : 2002 SCC (Cri) 413] after setting out the guiding principles for appreciation and consideration of the evidence of a child witness, this Court had found in para 9, that there were no doubts at all with regard to the veracity to the testimony of the child witness, nor were there any inherent defects. The name of the child witness figured in that case in the FIR and inquest; and right from the initial stages, her presence was adverted to, which is why no doubts could be entertained. However, such doubts and defects are quite evident in the present matter.

27. In Digamber Vaishnav v. State of Chhattisgarh [Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 : (2019) 2 SCC (Cri) 300] , a Bench of three Judges of this Court, while considering the matter in the light of the fact that the child witness had not disclosed about the accused in the first instance, observed : (SCC p. 529, para 24)

"24. ... None of the other witnesses have identified the appellants. Therefore, heavy reliance was placed on the testimony of PW 8. She did not tell PW 1, Badridas about the appellants while disclosing about the incident for the first time. This is reflected from the FIR which has been registered against unknown persons. In such circumstances, it is risky to rely on the uncorroborated identification of the appellants at the instance of PW 8, who has not disclosed about the appellants at the first instance before PW 1 Badridas."

Similarly, in Radhey Shyam v. State of Rajasthan [Radhey Shyam v. State of Rajasthan, (2014) 5 SCC 389 : (2014) 2 SCC (Cri) 600] , the evidence of a child witness was not found to be inspiring confidence because of inconsistencies in the version of the witness, as well as because of the absence of corroboration from the other prosecution witnesses.

28. In the circumstances, we do not find it safe to rely on the version given by the child witness in the instant case, who was about five years of age when the incident had occurred."

30. It is clearly discernable from the materials on record of this case that no test identification parade was conducted by the Investigating Officer so as to fix the identity of accused. Fixing of identity of accused was relevant in the facts of the present case, when the identity of accused was seriously in question. Exact identity of accused was not specifically disclosed in the written report/FIR. The Investigating Officer has also not made endeavours during the course of investigation to fix the identity of the accused. Neither the parentage of the accused has been ascertained nor his address or other details of family members have been ascertained. When the prosecution was banking upon the testimony of child witness and the evidence on the aspect of identity was not specific, the non-holding of test identification parade would create a dent upon the prosecution case.

31. In Amrik Singh (supra), the Supreme Court considered the issue of test identification parade where the evidence suggested that the witness had a fleeting glance of the accused. The non-holding of test identification parade by the Investigating Officer was taken as a material adverse to the prosecution case. In para 18 of the judgment in Amrik Singh (supra), the Supreme Court observed as under:-

"18. From the aforesaid it can be seen that as such there are some contradictions in the first statement of the complainant recorded in the form of FIR and in the deposition before the Court. In the deposition before the Court, he has tried to improve the case by deposing that he had seen the accused in the city on one or two occasions. The aforesaid was not disclosed in the FIR. Even in the cross-examination as admitted by PW 1 he did not disclose any description of the accused. At this stage it is to be noted that PW 1 has specifically and categorically admitted in the cross-examination that it is incorrect that the accused were known earlier. He disclosed only the age of the accused. In that view of the matter conducting of TIP was necessitated and, therefore in the facts and circumstances of the case, it is not safe to convict the accused solely on their identification by PW 1 for the first time in the Court."

32. The identification of accused by PW-2 even in court is not very specific. The only statement made in the examination-in-chief is that Pappu, who is present in court, came and asked them to get a rabbit. There is no specific statement that accused present in court is actually the accused with the name Pappu.

33. This is a case of circumstantial evidence and apart from the testimony of PW-2 there is no other credible material collected during investigation or during trial by the prosecution. We are also doubtful of the prosecution case regarding identity of the accused in view of the statement made by PW-6, as per which he saw the accused at about 3.45 in the afternoon, whereas the incident, as per PW-1 occurred between 2-3 pm. We also find the statement of PW-6 that he saw the accused running from the place of occurrence somewhat doubtful in view of the specific defence testimony as per which the accused was disabled as his right leg was crippled. No challenge is made to the defence case regarding disability of appellant Pappu. None of the prosecution witnesses have stated that the accused, who took the children, is disabled or had any difficultly in walking and running etc. Admitted disability of appellant Pappu is a distinct mark of identity, which is not alleged to exist by the prosecution witnesses. Disability of the accused in one of his legs is not doubted or disputed by the prosecution. The disability was a specific attribute which was expected to have been noticed by the prosecution witnesses to pinpoint the identity of the accused, which is absent in the present case.

34. The trial court has noticed the apparent contradictions in the testimony of prosecution witnesses on the aspect relating to the identity of accused nor the non-mentioning of disability of appellant as a mark of identity is factored in. We, thus, do not approve the finding of guilt returned against the accused appellant, which is, accordingly, reversed.

35. On a cumulative evaluation of the evidence on record, we find substance in the argument of Sri Chaturvedi, learned Amicus Curiae that the prosecution has not been able to establish the identity of appellant as being the person who had committed the offence. The chain of events pointing exclusively to the hypothesis of guilt attributed to accused appellant is thus left incomplete. In view of the above, we have no hesitation in coming to the conclusion that the prosecution has failed to establish the guilt of accused appellant beyond reasonable doubt. The accused appellant is, therefore, entitled to benefit of doubt.

36. Consequently, the present appeal succeeds and is allowed. The judgement and order of conviction and sentence dated 11.11.1991, passed by the VIIth Additional Sessions Judge, Kanpur Nagar in Sessions Trial No.210 of 1988 (State Vs. Pappu) is set aside. The appellant Pappu shall be set free, unless he is wanted in any other cases, subject to compliance of Section 437-A Cr.P.C.

37. A copy of this order shall be communicated to the Chief Judicial Magistrate concerned for necessary compliance.

38. We record our appreciation for the assistance rendered to us by Sri Ronak Chaturvedi, learned Amicus Curiae for the appellant, who is entitled to his fee as per rules by the High Court Legal Services Committee.

Order Date:- 22.8.2023

Anil/Ashok Kr.

(Syed Aftab Husain Rizvi,J.) (Ashwani Kumar Mishra,J.)