State And Raj Kumar vs Raj Kumar And State
2000 Latest Caselaw 1118 Del

ORDER

Arijit Passayat, C.J.

1. This Murder Reference under Section 366 of the Criminal Procedure Code, 1973 (in short, the Code) and appeal are interlinked being in respect of judgment of learned Additional Session Judge, Delhi in Session' Case No. 162/94. He imposed death sentence on the accused for offence punishable under Section 302 of Indian Penal Code, 1860 (In short, IPC), ten years RI for the offence punishable under Section 307 and two years RI for the offence punishable under Section 27 of the Arms Act 1950 (for short Arms Act). Since death sentence was imposed, reference has been made to this Court under Section 366 of Code.

2. Prosecution case sans unnecessary details is as follows -

On 22-5-1994, information was received in Police Station Subji Mandi that a quarrel was going on in house No 4289,Arya pura subji mandi ASI Krishan Chand was directed to go to the spot and make an enquiry Kishan Chand along with_ Constable Krishan Kumar went to the spot but another information was received to the, effect that a murder has taken place in house No 4345, Arya Pura, Subzi Mandi, Delhi. During investigation Sonia, (PW.7), daughter of Karan Singh made her statement to the. effect that on 30-4-94 she had come to the house of her aunt (Bua) Anita' (PW18) during summer vacation of her school. On that day, she along with her aunt- Anita were washing clothes at about 11.45 a.m Meanwhile, Raj Kumar, younger brother of her uncle (Phupha) Vinod, (PW 10) who is also known as Man came there and asked her aunt Anita to give him dumble. Anita told him that dumble was not there and asked him to leave Raj Kumar asked her younger sister Mona for giving dumble Again her aunt Anita told him that it was not there. Hearing this Raj Kumar gave many blows on the head of her aunt Anita with a big knife which he was having in his hand. he gave further blows on her hands when she raised her hands to protect herself thereafter Raj Kumar snatched a small child, son of Anita, named Golu, who was with Anita's sister Mona, and injured Golu with the knife that he was carrying. On account of injuries Anita and Golu started crying for help. On hearing this, Sonia and Mona also started crying for help and raised an alarm. Hearing their alarm neighbours and the mother-in-law of another aunt Sarla (sister of Anita) also reached there Bhawana (PW 8) daughter of Sarla also reached. She disclosed, while crying, that Raj Kumar had injured her mother and her brother Ashu. She further stated that Raj Kumar left the room after throwing the weapon of assault. Neighbours collected and police also reached there Sarla, Anita, Aashu and Golu to hospital. She stated that she had seen Raj Kumar was quarreling with Vinod and his brothers Sushil PW 12 and her aunt Anita and Sarla the was telling that a mentally retarded child was born to him while his brother got sons and as such they were depriving him of share in the shop.A case was registered on the basis of statement of Sonia Dr. Prithvi Raj (PWI) had certified that Aashu and Sarla were brought dead to him by the police Post mortem was conducted by Dr. C.B. Devas (PW2). Investigation was undertaken and on submission of charge sheet and on commitment by the concerned Metropolitan Magistrate accused Raj Kumar faced trial for offences punishable under Sections 302/307 IPC and Section 27 of the arms Act. Twenty six witnesses were examined by prosecution to further its case Placing reliance on the evidence of witnesses and more particularly of Sonia (PW7) and Bhawana (PW8)-learned trial Judge found the accused guilty of offences punishable under Sections 302/307 1PC' as well as Section 27 of the Arms Act. Conviction and imposition of sentence were done as started earlier.

3. For the sake of convenience the Murder Reference and Appeal are taken up together to be governed by this judgment

4. It was submitted on behalf of the accused that the evidence of PW8 being that of a child witness should have received some corroboration and as her evidence is not corroborated, learned trial Judge should not have placed reliance on it. It is submitted that so far as the homicidal death of Sarla and Aashu are concerned, the only evidence adduced by prosecution is that of PW8, the child witness Bhawana (PW7) does not say a word about that aspect and says about alleged assault on Anita and Golu. Evidence of-PW7 and PW8 was to he partisan witness as they were related to injured person as well as deceased and therefore it was submitted that their evidence should not have been acted upon. It is also stated that the case cannot be categorised one of the rarest of the rare cases to warrant a death sentence. The other sentences are stated to be harsh. Learned counsel for the State on the other hand, submitted that brutal murder of an innocent woman and a child who was not even one year old has been committed and seen because the main witness is a child that cannot be a ground to discard the prosecution version which has been well established by evidence Even evidence of PW7 does not suffer from any infirmity and evidence of PW7 and 8 cannot be said to be partisan because of relationship. It is desirable to deal with the contention relating to interestedness or relationship of the witness with the deceased or injured. Relationship is not a factor to affect credibility of a witness It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dilip Singh Vs. State of Punjab , it has been laid down as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely.

Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge a along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not in sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward is cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".

This decision has since been followed in Guli Chand and Ors. Vs. State of Rajasthan in which Vadivelu Thevar Vs. The Stake of Madras was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by Apex Court as early as in Dilip Singh's case (supra) in which Apex Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses.

Speaking through Vivian Bose, J., the Apex Court observed :

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitness requires corroboration. If the foundation for such an. observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. It is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in Rameshwar Vs. The State of Rajasthan (AIR 1950 SC 54). We find, however, that it unfortunately still persists, if not in the judgment of the courts, at any rate in the arguments of counsel."

6. In this case, Apex Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and mere fact of relationship far from being a foundation is often a sure guarantee of truth. "

7. Again in Masalti Vs. State of U.P. , Apex Court observed :

"Again it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."

To the same effect is the decision of Apex Court in State of Punjab Vs. Jagir Singh (Air 1973 SC 1407)"

8. Considering the legal position analysed above, we do not find any substance in the plea that evidence of PW7 and PW8 deserves to be discarded merely because they were related to the injured and deceased.

9. Since fate of the accused depends on the acceptability of evidence tendered by a child witness, it is relevant to notice law on the point. Section 118 of the Indian Evidence Act, 1872 ( in short, the Evidence Act) deals with who may testify. The said provision prescribes 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 those questions, by tender years, extreme old age etc. Competency of a person to testify as a witness is a condition precedent to the admissibility and credibility of his evidence. The tendency of modern legislative progress, discriminating between (the competency and the credibility of witnesses, has operated to remove former grounds of exclusion and to admit to the witness box all persons from whom a grain of truth can be gleaned leaving it to the Court to attach to their demeanour, deportment under cross-examination, motive to speak or hid the truth, means of knowledge powers of memory, and other test by which value of their statements can be ascertained (See Warran's Law Studies Volume II, page 1118) The Court has a duty to ascertain extent of his intelligence, capacity and understanding and the way he is able to give rational answer regarding what he has seen or heard or done on a particular occasion. If a person of tender age can satisfy these requirements his competency as a witness is established. The Court has a duty to form its own opinion whether a child witness has sufficient understanding to be qualified to be a witness.True test in this regard has been succinctly and concisely stated in George L.- Wheeler. Vs. United states, (1895)159 is 523 which read as follows;

"The decision of this question ( whether the child witness has sufficient intelligence) primarily rests with the trial Judge who sees the proposed witness, notice his manners, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his undertaking of the obligation of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous".

10. Section 118 of the Evidence Act has been worded negatively. If the court would consider that a particular witness does not understand the questions put to him and fails to give rational answers to those questions the Court would not proceed to take the evidence of that witness. Where there is absence of record ,but yet the Court proceeds to record the evidence, it must be taken that the Court considered the witness as competent of testify (see C.D.Field's Law of Evidence, 11th Editions, volume 5 page 4491) in order to judge the credibility of the witnesses ,the Court is not confined only to the way in which the witnesses have deposed or the demeanour, of the witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. (See Ramchandra Rambux Vs. Champabai, ) The necessity of Corroboration is a matter of caution and prudence and not a rule of law or practice. Dr. Henry Gross, who has been described by many as the father of criminal research, has set out in his book , Criminal Investigation, 1934 Ed. At pages 61-62, the nature and character of evidence given by children. He has said that in one sence that best witnesses are children of 7 to 10 years of age, as at that time love and hatred, ambition and hypocrisy, considerations of religion, rank etc are yet unknown to them. He has however, pointed out the great drawbacks which have made men distrustful of the capacity of children. They are apt to say much more from imagination than they actually know Sometimes preliminary xamination, which though not obligatory, is usually done for the purpose of ascertaining whether child is intelligent enough to give evidence

11. It is submitted that evidence of a child witness must be evaluated carefully as a child may be swayed by what others say and may easily be tutored and evidence of such child witness must find corroboration before it is relied upon. As observed by the Apex court in Panchhi Vs. State of U.P. :

11 ...But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized . 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 them and thus a child witness is aneasy prey to tutoring."

This is a rule of practical wisdom and not a rule of law ( See Prakash Vs. State of Madhya pradesh , AIR 1992 SC 65, Raja Ram Yadav. Vs. State of Bihar, ' and Data Ramrao Shakhare Vs. State of Maharastra (1997) 5SC 341) 12 When evidence of PW8 read in its totality, it unerringly shows a ring of truth it is to be noted that FIR was lodged on the basis of statement by PW7, immediately after the occurrence, wherein there is reference to PW8 and her statement PW7 and PW8 were 7 years and 13 years at the time of occurrence and 9 years and 15 years at the time of their deposition in Court On a leading of evidence of these two witnesses, the evidence is credible and cogent and though there has been elaborate cross-examination nothing substantial has been brought out to discard their evidence, as already submitted by the counsel for accused PW8 has pointed at Raj Kumar accused to be the author of homicidal deaths . Her evidence being acceptable prosecution has clearly established its case so far as homicidal deaths are concerned through the evidence of PW8 So far as PW7 is "concerned nothing could be shown to us how her evidence suffers from any infirmity so far as assaults on Anita and Golu are concerned

13. It has been urged that Section 307 IPC has no application to the facts of the case Section 307 deals with an attempt to murder. It provides that whoever does any act with such intention or knowledge and under such circumstances that, if he by that act Caused death he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine, and if hurt is caused to any person by such act the offender shall be liable either to imprisonment for life ,or to such punishment as is provided earlier in the section .An attempt to commit a crime is an act done with intent to commit that crime and would constitute its actual commission ,if it were not interrupted Intention or knowledge which is necessary to constitute murder may exit combined with an act which falls short of the complete commission of that offence . The act or omission ,although it does not cause death is carried to such a length as ,at the time of carrying it to that length, the offender considers sufficient to cause death if there has been not merely a commencement of an execution of the purpose, but something little short of a complete execution ,the consumption being hindered by circumstances independent of the will of the author Section 307 IPC has application. To justify a conviction under the said provision ,it is Not essential that bodily injury capable of causing death should have been inflicted Although nature of injury actually caused may often give considerable assistance in coming to a finding as to intention of the accused ,such intention may also be deducted from other circumstances and factors and may even in some cases be ascertained without any reference at all to the actual wounds. For the purpose of constituting an offence under Section 307 ,two ingredients are required Firstly, evil intent or knowledge, and secondly an act done. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew it in the circumstance that his act was going to cause death . The nature of weapon used , the intention expressed by the accused at the time of the act, the motive for commission of the offence ,the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow or blows are important factors that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempted murder . There must be some overt act combined with evidence of mens rea In Section 307 IPC the words intention or knowledge "are used Intention or knowledge are alternative ingredients of both Sections 299 and 300 IPC Hence an offence under Section 307 can be committed where there is no intention provided but only knowledge that the act is so imminently dangerous that it must in all probability cause death . Even if the accused did not have a deliberate intention , if he had the knowledge that his act was likely to cause death . Section 307 applies Intention and knowledge are a man's state of mind , direct evidence thereof except through his own confession cannot be had and apart from confession they can be proved only by circumstantial evidence . In other words , they are matters of inference from all the circumstances of the case Word " intention" is used in IPC in the sense that something is intentionally done if it is done deliberately or purposely , in other words is a willed though not necessarily is a desired result or a result which is the purpose of deed ,the experience applies . Like most words the word intention is capable of different shades of meaning in the IPC it is used in relation to the consequences of an act the effect caused thereby , not in relation to the act itself the voluntaries required to constitute an act is implied by that very word . A person commit that particular offence and (ii) he having made preparations and with the intention to commit the offence, does an act towards its commission such an act need not be penultimate act towards the commission of that offence , but must be an act during the course of committing that offence (See. Abhayanand Mishra Vs. State of Bihar , and Om Prakash Vs. State of Punjab, )

14. Accused has been convicted in terms of Section 27 of the Arms Act

Section 2 (c) of the said Act defines "arms" as follows :

"(c) "arms" means articles of any description designed or adapted as weapons for offence or defense , and includes firearms, sharpedged and other deadly weapons and parts of, and machinery for manufacturing arms, but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons"

Section 27 deals with punishment for using arms etc. Said provision reads as follows:-

"27 Punishment for using arms, etc.-(1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

(2)Whoever uses any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for term which shall not be less than seven years but which may extent to imprisonment for life. and shall also be liable to fine.

(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of Section 7 and such use or act results in the death of any other person, shall be punishable with death."

In the instant case learned trial Judge has not indicated as to in what manner Section 27 is attracted. He has also failed to notice about the minimum sentences provided. In any event, since there is no indication about the nature of infraction, the conviction and consequential sentence under Section 27 of the Arms Act cannot be maintained. The convictions for offences punishable under Sections 302 and 307 are maintained

15. The further question is the appropriate sentence for offence punishable under Section 302 IPC Section 302 itself prescribes two alternative sentences. It is laid down in a catena of cases that life sentence is the rule and death sentence is the exception. Death sentence is to be imposed only if the case falls into the category, described as "rarest of rare "Two decisions of the Apex Court in Machhi Singh Vs. State of Punjab, and Bachan Singh Vs. State of Punjab have illuminatingly indicated the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category.

As noted in Machhi Singh's case. The following questions may be asked and answered as a test to determine the rarest of the rare case in which death sentence can be inflicted:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and Calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weigtage to the mitigating circumstances which speak in favour of the offender? As noted in Bachan singh's case (supra)

The following guidelines which emerge from Bachan Singh case will have to be applied to the facts of each individual case where to the question of imposition of death sentence arises :

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, ' and only provided, the option to impose sentence of imprison ment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances .

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In 'rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the Judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances :

(i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position on in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc-. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-avis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid, propositions and taking into account the answers to the questions posed by way of the test for the rarest of rate case, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."

16. Thus in the view of what has been stated in Bachan Singh and Machi Singh,s cases ( (supra), there is no doubt that the crime involved was shocking and the incident was gruesome and cruel. In the normal course, therefore, we would have confirmed death sentence imposed by the trial Court. But at this juncture it would be. proper to refer to two decisions of the Apex Court in Suresh Vs. State of U.P., , and Raja Ram Yadav Vs. State of Bihar , where it was observed that where fate of a case depends on accepting evidence of a child witness, it; would not be desirable to impose death sentence. In Raja Ram Yadav's case ( supra) it was observed by the Apex Court as follows;

"14. After giving our anxious consideration to the facts and circumstances of the case and also to the submissions made by the learned counsel for the parties, it appears to us that the incident which had happened in the early hours of 30-5-1987 in village Baghora is extremely shocking and we only wish that there may not be a repetition of such incident. There is no manner of doubt that such a gruesome and cruel incident cannot but send a wave of shock to the society at large.

15. In Bachan . Singh case a Constitution Bench of this court has indicated the aggravating circumstances in committing the offence of murder. "It has been also indicated in the said decision that the court should also take into account the mitigating circumstances, while noting the aggravating circumstances for awarding appropriate sentence. In Machhi Singh Vs. Skate of Punjab a three Judge Bench of this Court has noted the synthesis which emerged in Bachan Singh case that in cases where there is no proof of extreme culpability, the extreme penalty need not be given. The extreme penalty of death may be given only in the rarest of rate cases where aggravating circumstances are such that the extreme penalty meets the ends of justice. Having considered the guidelines indicated in Bachan Singh case, the three-Judge Bench in Machhi Singh case has observed that the guidelines will have to be applied in the facts and circumstances of the individual case where the question imposing the death sentence may arise.

16. In this connection, it will be appropriate to refer to a decision or this court in Suresh Vs. State of U.P. In the said case, the sole Eyewitness was a five-year-old son of the deceased, but the deposition of the child witness was held to be convincing and reliable. After nothing the mitigating factors in favour of the accused, Chandrachud, CJ, speaking for the Court, has also indicated that it will not be safe to impose extreme penalty of death in a conviction based on the deposition of a child. It has been observed that the extreme sentence cannot seek its main support from the evidence of a child witness and it is not safe enough to act upon such deposition, even if true, for putting out a life." (underlined for emphasis)

17. That being the position, we commute the death sentence to life imprisonment to be suffered by the accused. Conviction made and sentence imposed for offence punishable under Section 307 1PC remains unaltered. The sentences shall run consecutively Murder Reference and the Appeal are accordingly disposed of in terms of alterations directed. We record our appreciation of the able manner in which Ms. Ritu Guaba, a fresh entrant to the legal profession, appointed amices curiae assisted the Court Her efforts were such which a senior member of the Bar would have felt proud about.