Raj Kumar @ Guddu vs The State Of Delhi
2012 Latest Caselaw 7324 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+          CRL.A. No.1472/2010 & Crl.M.(Bail) No.697/2012

                      Date of Decision:     21st December, 2012.

      RAJ KUMAR @ GUDDU                                ..... Appellant
                   Through        Mr. Avadh Kaushik, Adv.

                           Versus


      THE STATE OF DELHI                                ..... Respondent

                    Through       Ms.Ritu Gauba, APP


     CORAM:
     HON'BLE MS. JUSTICE GITA MITTAL
     HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J

1. By way of the present appeal, the appellant assails the judgment

dated 2nd June, 2010 passed by the learned Additional Sessions Judge,

finding him guilty of commission of the offence under Section 302 of

the Indian Penal Code and the order of the same date whereby he was

sentenced to undergo life imprisonment along with fine of Rs.5,000/- in

default whereof, simple imprisonment for three months for the

commission of the said offence.

2. As per the prosecution, Gajraj Singh Yadav- PW 5, an employee of

the MTNL posted at Gulabi Bagh, Delhi, was residing at House No.173,

Libaspur, Delhi with his family comprising of his deceased wife Smt.

Sunita Yadav and two sons namely Sushant Yadav and Prashant Yadav.

In the year 2003, Sushant and Prashant, were studying at the Panasia

National Public School. Sunita Yadav was a housewife and remained

at home. The children used to return from school at about 2.00 p.m.

On the fateful day of 22nd of September, 2003, Prashant Yadav (PW 3),

the younger child was suffering from pain in his foot and returned

home at about 1.40 p.m. with his friend Sunil on his cycle. There was

no response from inside when Prashant Yadav rang the bell of his

house. The child saw blood near the door of the room; jumped into the

house over the gate; opened the gate from inside and took his bag into

the house. His friend had left by that time.

3. Inside the house, Prashant saw his mother-Sunita Yadav lying on

the cot with blood spilt all around at which he started weeping. Raj

Kumar @ Guddu-the appellant, was present in the room and he asked

Prashant not to cry and to lock the gate. The appellant disclosed to

the child that he had seen someone who had attacked Sunita Yadav

with a knife and escaped. Raj Kumar asked him to bring a cloth to

clean the floor so that the blood does not flow outside the gate. The

child cleaned the floor as directed by the appellant. His efforts to

telephonically contact his father were obstructed by the appellant who

told him not to do so.

4. In the meantime, his brother Sushant Yadav also reached the

house. According to Prashant, Raj Kumar dissuaded him from opening

the gate for his brother Sushant but he still proceeded to do so.

Sushant testifying as PW 4, stated that Prashant was weeping when he

reached the house. Their mother was lying in an injured condition. Raj

Kumar repeated the story to Sushant Yadav to the effect that someone

had attacked his mother Sunita with a knife and thereafter escaped.

Prashant Yadav has testified that the appellant did not let both the

brothers make the telephone call to their father to inform him about

the incident.

Both children have deposed that their mother Sunita Yadav was

breathing at the time when they reached their house.

5. So far as the plight of the injured Sunita is concerned, Prashant

has stated that Raj Kumar held up his mother from the neck and told

him (PW 3) to bring water. The appellant thereafter proceeded to

press the throat of his mother and poured water into her mouth, as a

result of which there was bubbling therefrom. Sunita was breathing

even when Raj Kumar was pouring water into his mother's mouth. As

Raj Kumar was pressing their mother's throat when pouring water into

her mouth Prashant told Sushant to hit Raj Kumar.

6. The child also stated that when he was able to connect with his

father's telephone, Raj Kumar snatched the phone from him and the

phone line snapped. Prashant was able to reconnect the phone line

and managed to contact his father's office but while he was talking to

the person who had answered the phone, the accused pulled out the

telephone wire. In these circumstances, Prashant states that he could

only convey the message that his mother has been attacked ("mere

Mammy ko mar diya") before the phone line was pulled out.

7. It is further in the testimony of PW 4 Sushant Yadav @ Sunny, the

elder of the two children, that Prashant was also extremely frightened

when Raj Kumar enquired from him as to whom Prashant was calling

and asked Sushant to hit him. PW 4-Sushant had also asked the

appellant to call for an ambulance at which Raj Kumar pretended to

call one Shanta Nursing Home asking for an ambulance. No

ambulance ever arrived at the spot. On being asked by the children as

to why the ambulance was not coming, the appellant assured them

that the ambulance would come. In the meantime, the appellant kept

asking them repeatedly to get more water which he kept pouring into

the mouth of their mother Sunita. Both the children have referred to

Raj Kumar pressing Sunita's throat and pouring water into her mouth.

Sushant also stated that when he turned his back on the appellant, he

saw that the appellant pressed his mother's nose while pouring water

into her mouth and that her mother expired at that time.

8. It was amidst such commotion that Prashant managed to convey

the aforesaid message at his father's office before the appellant pulled

out the telephone wire. In the struggle between the appellant and

Prashant, a utensil in which the water had been brought, fell down. On

hearing this sound, PW-4-Sushant who had gone out of the room,

rushed back and saw that Raj Kumar was now throttling his brother.

Upon Sushant's return to the room, Raj Kumar pretended as if he was

in fact massaging his brother Prashant's neck. At this Sushant

attacked Raj Kumar trying to save his brother from the clutches of Raj

Kumar and also raised an alarm. He told his brother Prashant to rush

out of the room. As Prashant tried to flee from the room, Raj Kumar

tried to grab his leg but Prashant managed to escape his clutches.

Prashant rushed to his neighbour's house (referred to as "taiji" on

record) and returned with her to the house.

9. In the meantime, as per PW 4-Sushant, the appellant fled through

the terrace of their house, even though Sushant tried to prevent him

by catching his leg.

10. It is in the testimony of both the brothers that the clothes of the

appellant were blood stained. Sushant has also testified that while

fleeing, the appellant wore his father's shirt hanging on the terrace.

11. It appears that at 1412 hrs. on 22nd September, 2003, the Police

Control Room received information to the effect that one lady had

been murdered in the house no.173 of Gajraj Yadav in Gali No.9

located in village Libas. The form of the police control has been

exhibited as Exh PW 21/X-1 before the trial court.

12. At 14:20 hours it is recorded that the head constable had gone

there and it was stated that the SHO be sent to the spot as soon as

possible.

13. In this police control room record, at 14:35 hours, it is recorded to

the effect that Sunita, wife of Gajraj, aged 30 years was alone at home

when Guddu @ Raj Kumar committed the murder and ran away; that

she was lying on a cot covered with a sheet and that the arrival of the

SHO was being awaited. At 14:52 hours, it has been recorded that ACP

had come on the spot and entered the premises.

14. It is further recorded on the police control room form at 15:20

hours that the two sons of Sunita, wife of Gajraj, namely Prashant aged

thirteen and a half years and Sushant aged twelve years returned from

school when they saw [email protected] Kumar son of Kanwar Singh (their

`tau'), throttling (`reta') their mother's neck. The neck of their mother

had been cut; there were two knife injuries on her left hand and one

knife injury on the other hand. The appellant refers to the further entry

that "Guddu ko pakkad liva".

15. The crime team of the North-West District, Delhi conducted an

inspection on the spot from 3.22 p.m. to 4.10 p.m. As per its report,

Exh.PW 21/X-2, the crime team left several instructions for the

investigating officer.

16. The local police station Samaipur Badli received information from

the wireless operator on the 22nd September, 2003 itself at about 2.20

p.m. that in House No.173, Gali No.9, Libaspur, Delhi belonging to one

Gajraj Singh, one person had been murdered. This information was

recorded as DD No.13/A (Exh.PW 13/2) and handed over to SI Dhruv

Narain through Yashpal Singh to take appropriate action.

17. The crime team officials as well as photographers were called to

the spot. The then SHO Inspector R.P. Gautam-PW 21 (who retired as

ACP) proceeded to the spot at about 2:45 p.m.

18. PW-21-SHO R.P. Gautam also made inquiries from Prashant Yadav

and recorded his statement Exh.PW 3/A. In view of the statement

given by Prashant and the position on the spot, an offence under

Section 302 of the IPC was found to have been made out. SHO R.P.

Gautam prepared a Rukka which was sent to the police station through

Constable Yashpal at 5:30 p.m. FIR No.473/2003 under Section 302

IPC was registered by the police station Samaipur Badli and DD No.17A

was endorsed in this regard. It is urged by Mr. Kaushik, learned

counsel for the appellant that as per DD No.17/A, the scribing of the

FIR commenced at 5.50 p.m. and the same was completed at 7.10 p.m.

19. Inquest papers, which included the requisite application to

perform the autopsy of Sunita (Exh.PW 21/B), the brief facts of the

case (Exh.21/C) and the death report of the deceased Sunita (Exh.PW

21/D) were prepared.

20. It appears that at this stage, PW 11 Vineet Yadav-brother of the

deceased, also reached her house at 4:15 p.m. Prashant's statement

Exh.PW 3/A was recorded in his presence and investigation was

undertaken by the police. The witness has stated that Sunita's

husband Gajraj Singh was not present when he had reached the spot.

21. PW 11 Vineet Yadav has supported the statements of PW 3

Prashant & PW 4-Sushant with regard to the position on the spot and

the blood which was found lying on the ground as well as on the

bedding which included two sheets, a `bichona', pillow cover as well as

a towel. He has also supported the case of the prosecution with regard

to the multiple injuries on the body of the deceased; blood stains;

samples taken by the crime team and the police; the seizure of

articles; preparation of the site plan; photographs of the spot and the

recording of statements. PW 11-Vinod Yadav has made a further

categorical statement that the deceased was clutching a bunch of hair

in her left hand and that this hair was also seized by the police.

22. The post-mortem of the deceased was conducted on 23rd

September, 2003 by PW 7-Dr.Anil Shandilya. The post mortem report

was proved as Exh.PW 7/A. The deceased was found to have suffered

the following ante mortem injuries:-

"External injuries:

1. Clean incised stab wound 2.5 cm x 1 cm spindal shaped situated 19 cm from medial end of left clavical and 3.5 cm from midline and 11 cm from left nipple. On dissection of the wound, the wound entered the chest cavity in between the sixth and seventh rib and pierced through lungs and entered the heart.

2. Clean incised stab wound on left side chest 12 cm from the axilla in anterior axilliary line 7 cm from injury 1. Size 2 cm x 0.5 cm spindal shaped. On dissection of the wound, the wound entered the chest cavity and pierced the lung between seventh and eighth rib.

3. Clean incised wound in mid axilliary line 15 cm from axillia size 3 cm x 1 cm piercing the abdominal cavity. On dissection of the wound the wound pierced the spleen as mentioned already.

4. Back of the chest clean incised stab wound 12 cm from midline and 9 cm from angle of scapula on left side. The wound entered the chest cavity and pierced the lung in between fifth and sixth rib as already mentioned.

5. Right side back of chest 9 cm from midline and 8 cm from right angle of scapula, clean incised stab wound entering the chest cavity and piercing the lung size 2 cm x 1 cm.

6. Multiple incised wounds skin to muscle deep in both upper limbs, nine on left and ten on right upper limb. They are all defensive wounds of varying in size.

Internal Injuries:

Head                 :     Brain matter pale. Rest NAD

Neck                 :     Tracea shows cut mark anteriorly.

No extravassection of blood in underlying neck tissues or blood and clots in and around tissues of the wound. No foreign body in tracea and its division.

Chest : Both ribs intact. Left lung linear incised cut mark size 1.8 cm x 01 cm, 2 cm x 0.1 cm and 1.9 cm x 0.2 cm, three in number present. Right lung showed linear incised cut mark size 2 cm in length. Chest cavity full of 2 ltr of liquid blood and clots.

Heart          :            Heart showed linear cut mark on
base of the heart size 1.8 cm x 0.2 cm.

Abdomen         :          Spleen showed linear cut mark at

the lateral aspect size 2 cm x 0.2 cm x 1.5 cm. All visceras pale. Abdominal cavity full of liquid blood and clots.

Stomach : Mucosa NAD. Abnormal smell nil.

Contents - Juice like fluid about 500 ml."

23. As per the opinion of Dr.Anil Shandilya, the cause of death was

haemorrhagic shock following multi visccral injury i.e. injury to heart,

lungs and spleen. It was also opined that all the injuries were ante

mortem in nature except injury no.7 which was caused by sharp

weapon.

24. On completion of the investigation, the charge-sheet was filed.

By the orders passed on 30 April 2004, the charge for the offences

punishable u/s 302 IPC and u/s 27 Arms Act, 1959 was framed against

the petitioner.

The appellant pleaded not guilty and was put to trial on the

above charge. The prosecution examined 21 witnesses whereafter the

learned trial Judge put the incriminating circumstances to the appellant

under Section 313 of the Cr.P.C. giving him an opportunity to render

his explanation for the same. The appellant also opted to lead his

defence and examined DW-1, his mother Premvati as the sole witness.

25. There was no eye witness to the inflicting of injuries on the

deceased and the case of the prosecution rests solely on

circumstantial evidence. The trial court found that the circumstances

proved by the prosecution unequivocally established the guilt of the

appellant and were incompatible with his innocence resulting in his

conviction by the judgment dated 2nd June, 2010. The appellant was

heard on sentence and the afore-noticed order on sentence was

passed the same day. This judgment and order on sentence are

assailed before us by way of the present appeal.

26. We may note that the prosecution was unable to prove motive for

the murder and it was so concluded by the learned trial Judge. This

finding has not been challenged by the prosecution. However, it is well

settled that failure to prove motive would not necessarily be fatal to

the prosecution case even if the case rested on circumstantial

evidence.

Child Testimony - Reliability

27. Mr. Kaushik, learned counsel for the appellant has urged that the

testimonies of the two minor sons of the deceased are unnatural,

improbable and full of contradictions. It is disputed that these

testimonies could be relied upon to base the conviction of the

appellant. Before us, it is contended that PW-3-Prashant Yadav and

PW-4- Sushant Yadav have stated that they had gone to the school on

their own in the morning of 22nd September, 2003 whereas their father

PW-5-Gajraj Yadav has stated that he had dropped the children to the

school.

28. Learned counsel for the appellant has further submitted that the

testimony of PW 3 & PW 4 is contradictory with regard to the clothes

which the accused was wearing at the time. PW 3 Prashant Yadav has

stated that the appellant Raj Kumar was wearing a sky blue shirt with

full sleeves and black pant at the time of incident, while PW 4 Sushant

Yadav has stated that the appellant was wearing a black pant, white

vest and cream T-shirt. Immediately after that he deposed that he was

wearing a light blue T-shirt. Thereafter he finally deposed that he was

not sure of the colour of the T-shirt.

29. Mr. Kaushik, learned counsel or the appellant has also challenged

the testimony of PW 3 Prashant Yadav who had stated that his friend

Sunil Yadav had accompanied him to the house as he wanted to drink

water. It is urged that Sunil Yadav has appeared as PW 9 and has not

supported his friend PW 3-Prashant Yadav on this aspect.

30. Ms. Ritu Gauba, learned APP for the State has placed reliance on

several judicial pronouncements on the manner in which child

testimony has to be evaluated. In this regard, she has drawn our

attention to the judgment reported at (2010) 12 SCC 324 State of

Uttar Pradesh Vs. Krishna Master & Ors.; (2011) 4 SCC 786

State of Madhya Pradesh Vs. Ramesh & Anr. & (2012) 4 SCC

559 Promode Dey Vs. State of West Bengal.

31. In the Krishna Master case supra, a child, aged six years at

the time of occurrence in the dead of the night, was an eye witness to

the incident. He had given evidence in a simple manner without

making any noticeable improvements and/or embellishments. The

defence had set up a case of false implication. The child was the sole

witness to the incident. The court observed that a child being of

tender age would be incapable of nurturing a grudge against the

accused.

So far as the ability of a young witness or a child to recapitulate a

gruesome incident witnessed by him is concerned, it was observed by

the court thus:

"36. xxx There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.

37. This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him

long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW2, Madan Lal came to be disbelieved can hardly be affirmed by this Court."

32. In the instant case as well, two children have witnessed their

mother lying in a bloodied condition with knife injuries. The appellant

obstructed their contacting their father or seeking help otherwise for

their mother. They witnessed their mother dying before their very

eyes. Certainly the events would have been indelibly imprinted in their

mind.

33. The pronouncement of the Supreme Court in (2010) 12 SCC 545

Balaji Vs. State throws light on evaluation of the testimony of PW-2-

the ten year old daughter of the deceased, who had witnessed his

murder by her mother and a nephew of her father as well as the place

where the deceased was buried by them. In this case, the child

witness had remained silent for a period of ten days and related the

incident thereafter only to the grandfather i.e. father of the deceased,

thereafter.

34. In (2011) 4 SCC 786 State of Madhya Pradesh Vs. Ramesh

& Anr., it was held that the child would not be competent witness

unless the trial court finds him otherwise and that the court may rely

upon evidence of such child witness in the event her deposition

inspires the confidence of the court and there was no embellishment or

improvement. The court may also reject the testimony of such child

witness if it is found that the child has been tutored, which inference

can be drawn from the contents of her deposition. In the case before

the Supreme Court, the deposition of the child was found precise,

concise, specific and vivid without any improvement or embellishment

and was found to be worth believing in toto.

In this judicial precedent, the court placed reliance on prior

judgments relating to child testimony. The discussion and the findings

of the court shed valuable light on the manner in which child witness

testimony requires to be evaluated. The applicable principles of law

noticed by the Supreme court deserve to be considered in extenso and

read as follows:-

"7. In AIR 1952 SC 54 Rameshwar S/o Kalyan Singh v.

The State of Rajasthan, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless

the Court considers otherwise. The Court further held as under:

"11.... it is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate."

8. In AIR 1995 SC 959 : 1995 Cri.L.J. 1461 Mangoo and Anr. v. State of M.P. this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

9. In 1998 Cri.L.J.3305 Panchhi and Ors. v. State of U.P., it was held that:

"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 if 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 this a child witness is easy prey to tutoring."

Further the Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more

a rule of practical wisdom than of law. It cannot be held 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 him and thus a child witness is an easy prey to tutoring."

10. In AIR 2008 SC 1460 : 2008 (2) SCALE 663 Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra, this Court dealing with the child witness has observed as under:

"10. ......... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.""

11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh and Ors. v. State of Maharashtra.

xxx xxx xxx

13. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia and Anr. v. State of Punjab.)

14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

xxx xxx xxx

23. The Trial Court after taking note of rulings of various judgments of this Court as to what are the essential requirements to accept the testimony of a child witness held as under:

"In the present case, statement of child witness gets affirmed by the circumstances of the incident, facts and from the activities of the other witnesses carried out by them on reaching at the place of occurrence. Thus, on the basis of above-said law precedents, statement of witness Rannu Bai not being unreliable in my opinion are absolutely true and correct... Statement of child witness Rannu Bai gets affirmed by the statements of Munna and witness Hannu and from the medical evidence. Therefore, facts of the above-stated law precedents are not applicable to the present case."

In view of the above, it is evident that the statement of Rannu Bai (P.W.1) is affirmed by the statements of other witnesses, proved circumstances and medical evidence. Her deposition being precise, concise, specific and vivid without any improvement or embroidery is worth acceptance in toto."

35. It is well settled that the court can place reliance on the solitary

statement of a witness even if it is a child, if the evidence is found to

be true and correct version of the case of the prosecution. The court,

after careful scrutiny of its evidence, is required to be convinced about

the quality and reliability of the same (2004 (1) SCC 64 Ratansinh

Dalsukhbai Nayak Vs. State of Gujarat).

36. Reliance was placed in this decision on a prior judgment of the

Supreme Court reported at (1997) 5 SCC 341 Dattu Ramrao

Sakhare Vs. State of Maharashtra wherein it was held that:

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of c4onviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."

Corroboration would be sought only when the testimony of the

solitary witness was neither wholly reliable nor wholly unreliable.

37. It is, equally also well settled that minor contradictions or

omissions in a deposition which are of a trivial nature and not of such

magnitude as may materially affect the core of the prosecution case,

would be of no consequence to discredit testimony of witness.

38. We find both PW 3 & PW 4 are categorical that they had walked

to the school in the morning of 22nd September, 2003. There is,

therefore, no contradiction in their statements vis-a-vis each other.

The statement by PW 5-Gajraj Yadav to the effect that he had dropped

the children would require to be scrutinized at the time of evaluation of

his testimony and cannot effect examination of the children's

depositions.

39. It is noteworthy that the incident had occurred on 22nd

September, 2003. The statements of Prashant then 12 years of age,

and Sushant, then 14 years were recorded on 26th October, 2004 &

13th December, 2004 respectively when the boys both were still of

tender ages. The question as to whether they were dropped to school

by their father or not, is not material so far as the consideration of the

issue as to whether the appellant is responsible for the commission of

crime or not.

40. We may now examine the second point pressed as a

contradiction by learned counsel with regard to the clothes alleged to

have been worn by the appellant. It is normal for human memory to

have blurred with the passage of time and sharp details fade from

recollection. It is essential to also keep in mind the trauma which the

children were undergoing at the time. The colour or nature or detailing

of the appellant's clothes would be the last thing on their mind when

the children saw their mother bleeding and die before their eyes. Both

the children say that the appellant was wearing black pants and a light

coloured shirt, whether cream coloured or of sky blue colouring. In his

deposition, Sushant mentions that the appellant was wearing a black

pant, white vest and a cream T-shirt. He does not stop at that and

immediately deposed that the appellant was wearing a light blue T-

shirt. He thereafter said that he was not sure of the colour of the T-

shirt. The child was however able to recollect the colour of the shoes

(brown) that the appellant was wearing at that time. There is,

therefore, no major contradiction so far as the colouring of the clothes

which the appellant was wearing. The oral testimonies of the

witnesses with regard to the colour contrast of the apparel worn by

the appellant is corroborated by the physical articles which were

seized from the house premises and form part of the exhibits on

record.

41. It is urged by learned counsel as a contradiction is that while PW-

4-Sushant has stated that the appellant was wearing a T-shirt,

Prashant has said that he was wearing a shirt. The perception of

different people as to whether the piece of clothing is a T-shirt or shirt

could vary depending on its style or the material from which it had

been made or the social milieu from which the person hails. Certainly,

the reference to the clothing worn by the appellant as a shirt or a T-

shirt by one of the children cannot be construed as contradiction in

material particulars so as to discredit his entire testimony.

42. We find that the defence has extensively cross-examined PW 3

Prashant Yadav as to the manner in which he reached the house and

has been unable to shake his testimony. PW 9-Sunil Yadav has

corroborated PW 3 when he stated that he dropped his friend Prashant

Yadav. The two children differ only on the spot at which PW 9 dropped

PW 3. In his testimony before the court, Sunil Yadav stated that he

dropped Prashant Yadav at the Libaspur More (turning) on his cycle

and left him there. This was contrary to the statement given by him

under Section 161 of the Cr.P.C. He was declared hostile by the

prosecution and cross-examined by the learned APP on this aspect.

43. Unfolding of events as have been disclosed by PW 3 & PW 4

establishes the presence of the appellant on the spot. The appellant

has also not disputed his own or the children's presence on the spot.

The incriminating circumstances which were put to the appellant under

Section 313 of the Cr.P.C. as question no.2 and the appellant's

explanation thereto are important and read as follows:-

"Q.2: It is in evidence against you that you on the date of incident i.e. 22.9.2003, PW-3 Prashant Yadav and PW-4 Sushant Yadav were studying in Panasia National Public School, Siraspur in 6th and 7th class respectively. Their mother Sunita used to remain in the house. On 22.9.2003 PW-3 Prashant Yadav ad PW-4 Sushant Yadav had gone to school in the morning. The school used to close at 1.30 pm and both of them used to come back at home at 2 pm.

On 22.9.2003 PW-3 Prashant Yadav was having pain in his foot as such, he came back to his house along with his friend PW-9 Sunil Yadav on his cycle at about 1.40 pm and at that time, the brother of PW-9 Sunil Yadav was was also on the cycle along with PW-3 Prashant Yadav and PW-9 Sunil Yadav. Thereafter PW-9 Sunil Yadav requested a glass of water then PW-3 Prashant Yadav rang the bell of his house and also made noise on the gate but none responded from inside the house. PW-3 thought that his mother i.e. Sunita (deceased) might have gone to the terrace for drying of clothes. What you have to say?

Ans. On 22.09.2003, I was passing from outside the house of my Chacha Gajraj Singh when I heard some noise and voice of my Chachi from inside. The main gate of the house was locked from inside but side gate was open. I went inside and say my chachi Sunita Yadav was lying injured and blood was coming out. I asked her who had injured her but she could not tell. She asked me for a glass of water. In the meantime, her son Prashant Yadav returned from the school. I told him that someone had injured his mother and ran away and asked him to bring water as Sunita Yadav was asking for same and I thereafter telephoned Shanta Nursing Home for calling of an Ambulance. Sunita Yadav was breathing heavily at that time and I further asked Prashant to call his father Gajraj also and inform him about the said incident as I di not know the phone number of gajraj Yadav (Chacha). I do not know how did Prashant return from school. No person with the name of Sunil Yadav had accompanied Prashant when he came back from the school and nobody rung any bell".

The appellant has thus admitted that PW 3 & PW 4 had also

reached the spot while he was there and that Sunita Yadav was alive at

that time.

44. So far as the testimony of PW 9 Sunil Yadav is concerned, the

same manifests that it was not even the case of the prosecution that

he had gone inside the house or witnessed the events that transpired

inside. It is manifest, therefore, that nothing turns on the place where

Sunita Yadav dropped Prashant on return from school.

45. Ms. Ritu Gauba, learned APP has also placed reliance on the

judgment of the Supreme Court reported at (2012) 4 SCC 559

Pramode Dey Vs. State of West Bengal wherein PW 2 was an eight

year old child who had given a vivid account of how her mother was

killed by the appellant with a dao. This testimony was relied upon by

the court in upholding the conviction.

46. Learned counsel for the appellant has placed reliance on the

celebrated pronouncement of the Supreme Court reported at (1984) 4

SCC 116 Sharad Birdhichand Sarda Vs. State of Maharashtra to

contend that given the close relationship of the children to the

deceased, their testimony cannot be relied upon.

47. No absolute principle has been laid down in Sharad

Birdhichand Sarda (supra) to the effect that merely because the

evidence is being given by the child of a person who has been

murdered, the same ought to be completely disregarded. This

submission of learned counsel for the appellant is wholly unacceptable.

We have noticed heretofore several pronouncements wherein the

Supreme Court has categorically held that the testimony of a child

witness relating to circumstances in which his parents has suffered

injury, deserves to be accepted, if otherwise found reliable.

48. The children have also spoken in one voice with regard to what

transpired after they had entered the room where their injured mother

was lying. As per the evidence on record, PW 3-Prashant Yadav and

PW 4 Sushant Yadav found their mother Sunita in an injured condition

when they reached home on 22nd September, 2003 from school. She

was injured and profusely bleeding. The gate and doors of the house

were locked from inside.

They both deposed that Raj Kumar @ Guddu was pressing

Sunita's throat and pouring water into her mouth. It is in the testimony

of PW 4-Sushant Yadav that the appellant had even pressed her nose

closed while pouring water into her mouth. There is no contradiction at

all in their statements with regard to the events which transpired after

they returned home from school. The appellant was found inside the

house alone with a badly injured Sunita. His conduct was odd and not

normal. No contradiction or improvement in material particular in their

evidence has been pointed out. PW 3 & 4 are truthful witnesses who

have given cogent and reliable evidence noticed above and have been

rightly relied upon by the learned trial Judge.

Challenge to time of Arrest of Appellant

49. Learned counsel for the appellant has attempted to support his

challenge to the arrest of the appellant placing reliance on an illegible

portion of a noting on Police Control Room Record Exh. PW 21/X1

recorded at 15:20 hours. At the end of this note, the person scribbling

the same has endorsed the words "Guddu ko pakad liva". While the

defence counsel would want us to accept that this shows that the

appellant was in custody at 15:20 hours, learned APP has sought to

explain that the word "liva" means that the appellant should be

arrested.

50. We have noticed above the complaint lodged with the police

control room on 22nd September, 2003 about which Mr. Kaushik,

learned counsel has contended at some length that the same shows

that the appellant was in the police custody at 3:20 hours.

51. Mr. Kaushik, learned counsel for the appellant has also drawn our

attention to the testimony of PW 3-Prashant Yadav who has stated that

Raj Kumar @ Guddu was caught by the police on the date of the

incident at about 4.00 p.m. However, this statement is not supported

by the witness who has categorically testified that he was not present

when the accused was apprehended and that he (PW-5) came to know

that the accused was apprehended from his house. The witness has

only deposed that Raj Kumar was present in the police station where

he had gone to sign the statement. No clarification has been sought

by the defence with regard to the date or time at which the statement

of Prashant Yadav was signed by him. Nothing has been put to the

investigating officer in this regard.

52. As per the prosecution, the appellant was arrested on 23rd

September, 2003 at around 6.50 a.m. from Sant Nagar Burari bus

stand. Ms. Ritu Gauba, learned APP has pointed out that after the

appellant fled from the scene of occurrence, he could not be traced out

despite best efforts by the police. We find that as per the arrest memo

(Exh.PW 5/A) the appellant was arrested by PW 21-Retired ACP R.P.

Gautam on 23rd September, 2003 at 6.30 a.m. from the main road,

Sant Nagar, Burari in the presence of PW 5-Gajraj Singh and HC

Krishnan. PW 5 Gajraj Singh a witness to the arrest, has stated that

the appellant was arrested on that location in Sant Nagar Burari where

his in-laws stay.

53. The arrest of the appellant is also corroborated also by the

testimony of PW 18 Head Constable Krishan Kumar Kaushik and PW

21-Shri R.P. Gautam. The testimony of PW 5, 18 & 21 on the aspect of

the appellant's arrest, could not be challenged by the appellant in the

cross-examination.

54. It is nobody's case that PW 21 Shri R.P. Gautam, who was the

then investigating officer, was the author of the notings on the Police

Control Room form. No question has been put with regard thereto on

behalf of the appellant to the witness. We also find that in the

statement under Section 313 of the Cr.P.C., it is the case of the

appellant himself that the was arrested in the night of 22nd September,

2003. Even in his own statement, it is not the appellant's case that he

was arrested at the spot. We find no discrepancy in the evidence with

regard to the appellant's arrest. The reliance on the contents of

Exh.PW 21/X-1 is therefore completely misconceived.

Disclosure & Recovery of two knives pursuant thereto

55. It is also in the evidence of PW 21 Shri R.P. Gautam that after his

arrest, the appellant had made a disclosure statement Exh.PW 5/D

leading to the recovery, on his pointing out, of two blood stained

knives from the room on the first floor of his house which had been

hidden in a packed fridge. It is stated that one knife was an iron knife

and while the other was a paper cutting knife. The sketch of the iron

knife was prepared which was proved on record as Exh.PW 5/F while

the sketch of the paper cutting knife was proved as Exh.PW 5/G. The

two knives were kept in a separate seal vide Exh.PW 5/E by PW 21-R.P.

Gautam. The seizure memo of the knives was proved on record as

Exh.PW 5/E.

56. The disclosure statement Exh.PW 5/D was proved in the

testimony of PW 5 Gajraj Singh Yadav as well as PW 21 Shri R.P.

Gautam. These witnesses also identified the paper cutting knife as

Exh.PW 5/1 and the metallic knife as Exh.PW 5/2 in the court room.

The recovery of these two knives on 23rd September 2003, was also

proved at the instance of the accused was also proved by the

deposition of these witnesses.

57. The recovery of these knives has been challenged by the learned

counsel for the appellant contending that they were planted by the

investigating officer as Exh.PW 5/1, was in a broken condition when

produced in court and also that the prosecution failed to prove that the

same had been given by PW 6 Kavit Monga to the appellant for whom

he worked.

58. It is noteworthy that PWs 3 & 4, sons of the deceased did not

depose about having seen any knife with or being used by the

appellant at that time. The injuries had already been inflicted on the

person of the deceased by the time the sons reached the house. The

knives were recovered subsequently on 23 rd September, 2003. The

prosecution was unable to prove its case that PW 6 Kavit Monga had

not provided the recovered paper cutting knife to the appellant who

worked as his indenting agent. It could only prove that the appellant

was working as an indenting agent in his office and that paper cutting

knives were used for their work. However, in the present case, the

source of the knife would be irrelevant. The issue is as to whether the

knife which was recovered was used in the commission of the offence.

59. We find that the trial court has rightly rejected the challenge to

the recovery of the knives on behalf of the appellant, placing reliance

on the testimonies of PW 5, PW 7 & PW 21 as well as the forensic

science laboratory report. The appellant has not made out any ground

before us as well to reject the authenticity thereof.

Recovery of clothes of accused worn at the time of commission of the offence.

60. After his arrest on the 23rd September, 2003, the appellant made

afore-noticed disclosure statement, Exh.PW 5/D wherein he disclosed

that the blood stained shirt and vest (baniyan) which he was wearing

at the time of the incident in the bathroom in the roof of the house of

Gajraj Singh Yadav which he could get recovered as also the recovery

of the pant worn by him at that time. It is in the evidence of the

witnesses that the accused thereafter led the police authority to his

House No.120, Gali No.10, Libaspur, Delhi.

61. The appellant is stated to have also taken out the blood stained

black pant (Exh.PW 5/3) which he was wearing at the time of

commission of the offence from beneath the sofa kept in the room of

his house. The accused then led the police party to the roof of the

house of PW 5 Gajraj Singh Yadav; pointed out towards the bathroom

from where on his pointing out one blood stained sky blue shirt

(Exh.PW 5/4) and a sando baniyan (Exh. PW 5/5) from beneath gunny

bags of cement, and a parcel which were seized as per the seizure

memo Exh.PW 5/J. These recoveries are proved by the testimonies of

PW 5 Gajraj Yadav; PW 18-Head Constable Krishan Kumar Kaushik and

PW 21 ACP R.P. Gautam. The sealed seized articles were kept in safe

custody in the malkhana.

62. Mr. Kaushik, learned counsel for the appellant has laid elaborate

arguments challenging to the recovery of the clothes of the appellant

resting on an isolated statement of PW-4 Sushant Yadav, the police

had recovered the T-shirt and vest of the appellant on the very day of

incident i.e. 22nd September, 2003.

63. We, however, find that in the very next sentence, PW 4 Sushant

Yadav has stated that he had not personally witnessed the recovery

but had come to know about it. Therefore, Sushant Yadav's statement

that the police has recovered the t-shirt and vest on the date of the

incident is not based on personal knowledge and no significance can

be attached to this part of the deposition.

64. The appellant has thus been unable to challenge either the

admissibility of the disclosure by the appellant to the extent of the

recovery or the authenticity of the recoveries at all.

Weapon of offence and forensic examination of recovered articles

65. Ms. Ritu Gauba, learned APP for the State has also pointed out

that the blood stained clothes of the deceased seized by the police

were sealed with the seal of the Medical Superintendent, Babu Jagjivan

Ram Memorial Hospital, Jahangir Puri, Delhi.

66. It is in the testimony of PW 11-Shri Vineet Yadav; PW -20 Dr.

Neeraj Chaudhary; PW 21-retired ACP R.P. Gautam & PW 22-Jag

Narayan that in her left hand, the deceased Sunita was clutching a

bunch of hair. The hair which the deceased was clutching was seized

by PW 21-Retired ACP RP Gautam.

67. After the arrest of the accused, he was taken for a medical

examination to the Babu Jagjivan Ram Memorial Hospital, Jahangir Puri,

Delhi for medical examination where he has examined by Dr.Manohar

Kumar Nirala.

68. In order to prove the medical examination of the appellant as well

as the drawing of the sample, the prosecution examined PW 20-Dr.

Neeraj Chaudhary who had proved the record prepared by Dr. Manohar

Kumar Nirala, the examining doctor. According to PW 14-Shyam Singh,

the doctor took a hair sample of appellant Raj Kumar and converted

the same into a parcel which was duly sealed and handed over to the

Head Constable Krishan Kumar Kaushik vide memo Exh.PW 14/A. The

testimony of PW 14-HC Shyam Singh that the hair sample of the

appellant was taken, sealed and handed over to Head Constable

Krishan Kumar Kaushik was corroborated by PW 20-Dr.Neeraj

Chaudhary. The witness PW 20, was not cross-examined on these

aspects at all.

69. No dispute has been raised by the appellants with regard to safe

custody of any of the samples. However, Ms. Ritu Gauba, learned APP

for the State has drawn our attention to the testimony of PW 14-Shyam

Singh , PW 16-Head Constable Ram Singh & PW 19-Constable Ranbir in

this regard who have established the safe custody of the sample; its

deposit with the forensic laboratory and receipt of the report.

70. We have noticed hereinabove the several injuries in the nature of

six incised wounds on the body of the deceased as well as the cut

throat wound. Perusal of the photographs Exh.PW 12/1- Exh.PW 12/8

of the dead body also reflected that the injuries were inflicted by sharp

edged weapon which could have been by the knife in question. To

establish that the knives were the weapons of offence and whether the

two knives recovered at the instance of the accused persons were the

weapon of offence, the prosecution examined PW 7 Dr. Anil Shandilya

who had conducted the post-mortem.

71. Pursuant to an application being Exh.PW 21/X by the

investigating officer before Dr. Anil Shandilya for obtaining his opinion

with regard to the two recovered knives, PW 7 Dr. Shandilya examined

the two knives. He proved in court his opinion as Exh.PW 7/B

regarding the single edged cutting metallic knife of metallic nature

with imprint of New R.K. Brand over the handle on both sides as being

the weapon of offence. Dr. Anil Shandilya also gave opinion (Exh.PW

7/C) regarding the plastic handle single edged sharp blade paper

cutting knife with the reddish brown stains opining that injuries

mentioned in the post-mortem report (Exh.PW 7/A) including the cut

throat injury might have been caused by the knives produced by the

investigating officer or similar thereto.

72. All articles/objects and samples seized or recovered were sent to

the Forensic Science Laboratory for forensic examination. The

recovered articles which included concrete material described as blood

stained earth; the pillow with cover; bed sheet; mattress; towel;

duster; few strands of hair; salwar; lady's shirt; dupatta; under

clothing; blood stained gauze cloth piece (described as `blood

sample'); one all metallic weapon of offence having brownish stairs;

one broken weapon of offence of plastic and metallic blade; pant; shirt

& baniyan; few strands of hair were marked Exh.1, 3a, 3b, 3c, 3d, 4, 5,

6, 7a, 7b, 7c, 7d, 8. 9, 10, 11, 12a, 12b & 13 by the Forensic

Laboratory.

73. The report of the Forensic Science Laboratory dated 27 th

February, 2004 (Exh.PW 21/X-3) reported the following on the forensic

examination:-

"RESULTS OF ANALYSIS

1. Blood was detected on exhibits `1', `3a', `3b', `3d', `4', `5', `6', `7a', `7b', `7c', `7d', `8', `9', `10', `11', `12a' & `12b'.

2. Blood could not be detected on exhibit `2'.

3. From morphological and microscopical studies the hair in exhibits `6' & `13' were found to be human in origin. Exhibit `6' (hair recovered from the spot and from the hand of deceased) and exhibit `13' (Hair of accused) were found to be similar in most of their morphological and microscopical characteristics."

74. The serological analysis of the blood sample of the deceased

(Exh.8) shows that the deceased was having blood group `O'

75. It is noteworthy as per the report (Exh.PW 21/X-4) of the Forensic

Science Laboratory, though human blood was identified on the two

knives, its grouping, however, could not be identified.

76. As per the report of the Forensic Science Laboratory dated 27th

February, 2004 (Exh.PW 21/X 3), the microbiological study of the hair

samples showed that they were human in origin and similar in most of

their morphological and microbiological characteristics. This indicates

that the deceased was clutching the hair of the appellant in her left

hand at the time of her death.

Conduct of husband of the deceased

77. Mr. Kaushik, learned counsel for the appellant, has challenged

the conduct of PW 5 Gajraj Singh Yadav urging that there are

contradictions in the statements of various witnesses with regard to

the time at which PW 5-Gajraj Singh had reached the spot. Reference

in this regard is made to the testimony of PW 21 R.P. Gautam who has

stated that he reached the spot at 3.00 p.m. when Gajraj Singh Yadav,

husband of the deceased Sunita Yadav, was present. As against this,

PW 11-Vineet Yadav-the brother of deceased Sunita who reached the

spot at about 4.00 p.m., has categorically stated that Gajraj was not

present at the spot when he had reached there.

78. PW 5 Gajraj Singh Yadav has explained that a telephone message

was received at his office by another employee Smt. Indermani who

got the impression that her daughter was calling on the telephone in

an emergency and she requested PW 5-Gajraj Singh Yadav to take her

to her residence. We have noticed above the deposition of PW 5's son

Prashant who had actually telephoned his office about the injury to his

mother but the phone line was pulled away by the appellant. Given

the information communicated by Smt. Indermani and her request,

Gajraj Singh Yadav accompanied her to her residence in Shastri Nagar

where they found her daughter in normal condition. Thereafter, a

telephonic message was received from the office of PW - 5 Gajraj

Singh Yadav informing that the earlier message related to him and not

to Smt. Indermani. PW 5 has explained that on receipt of this

message, he called his house when he was informed for the first time

that the condition of his wife was very serious. He thereupon took

permission from his immediate boss and reached his house when he

found that the police had already reached there. His sons Prashant

and Sushant told him that the appellant had murdered his wife Sunita

Yadav and run away from the spot by way of the terrace. The

testimony of PW 5 Gajraj Singh could not be shaken in cross-

examination.

79. The appellant opted to lead defence and examined his mother

Smt.Premvati as the sole witness who stated that the appellant was a

person of good behavior and was innocent. She claimed that PW 5

Gajraj Singh Yadav was having disputes with her husband (brother of

Gajraj Singh Yadav); that her husband was missing since 10-12 years

and that Gajraj Singh was taking revenge from her son, the present

appellant for which reason he had falsely implicated him. She also

claimed that the appellant had been lifted from their house. PW 5

Gajraj Singh had denied all suggestions to the above facts.

80. The absence of PW 5 Gajraj Singh Yadav (husband of the

deceased) from the spot when PW 2 R.P. Gautam reached the spot and

conducted the inspection is also manifested from the fact that memos

of various items seized from the spot by PW 21-ACP R.P. Yadav have

not been witnessed by Gajraj Singh Yadav, who would have been a

natural witness if he had been present. On the contrary, the seizure

memos contain the signatures of PW 11-Vineet Yadav as witness.

None of the other witnesses have stated that Gajraj Yadav was present

at the spot at that time.

81. It is also not the case of the appellant that he had seen Gajraj

Singh Yadav anywhere near the spot at the time of the occurrence. In

this background, the statement of PW 21 R.P. Gautam with regard to

the presence of PW 5 Gajraj Singh is mistaken. It is also not of such

significance or a contradiction in material particulars so as to dent the

prosecution case in any manner. Nothing therefore turns on the

statement of PW 21 with regard to the presence of PW 5 Gajraj Singh

yadav in view of the other convincing evidence on the issue.

82. Mr.Kaushik, learned counsel for the appellant has submitted that

the conduct of this witness was most suspicious inasmuch as he had

remarried within two months of the death of his wife. This question

was put to PW 5 Gajraj Singh in his cross-examination when he

explained that because his two children (Prashant and Sushant) were

of tender ages and there was none to look after them, under social

pressure his family had observed the final ceremony (Chhamai)

relating to the death of his wife Sunita so that he could be remarried.

He has further stated that after the expiry of one year from her death,

the traditional anniversary was also observed. The witness remarried

only after performing `chhamai' ceremony. The witness has denied

the suggestion of the defence side to the effect that he had got

married two months after the death of his wife because he had an

affair with another lady during the lifetime of his wife.

83. The defence led no evidence to establish such affair. There is no

evidence also of any prior relationship of PW 5 with his second wife.

We, therefore, find no reason to doubt the explanation given by PW-5-

Gajraj Singh Yadav. In any case, it is not the case of the appellant that

PW 5 Gajraj Singh Yadav was in any way responsible for or

instrumental in the murder of Sunita Yadav.

Failure to examine a witness

84. A half hearted submission has been made on behalf of the

appellant to the effect that though Prashant and Sushant Yadav have

stated that their Taiji came to the spot, she has not been examined as

a witness. We may note that in answer to the question by the court in

his statement under Section 313 of the Cr.P.C., the appellant has

admitted that Taiji was brought to the spot by Prashant Yadav. She, in

any event, is not witness to the crime or to any of the events which

transpired thereafter. Her testimony is wholly irrelevant for the

purposes of the present case.

85. Ms. Ritu Gauba, learned APP has placed reliance on the judgment

reported at (2011) 1 SCC (Crl) 381 State of Uttar Pradesh Vs.

Krishna Master & Ors. so far as choice of a witness is concerned. It

is submitted that in this pronouncement, it was held that it was the

prerogative of the public prosecutor to decide who has to be examined

as a witness.

86. On the same aspect, learned APP has also placed reliance on the

pronouncement of the Supreme Court in (2004) 1 SCC 414 Banti @

Guddu case Vs. State of Madhya Pradesh. Learned APP has also

drawn our attention to Promode Dey case (supra)wherein it was

held that no adverse inference could be drawn from non-examination

of the particular witness for the reason that he was neither the

eyewitness nor the complainant and was in fact not in the same house

where the incident occurred.

In the present case as well, the position is the same. Analysis & Conclusion

87. In the instant case, on examination of the evidence which has

been brought on record as well as the admissions by the appellant, the

following facts have been proved beyond reasonable doubt:-

(i) On 22nd September, 2003, when PW 3 Prashant and PW 4 Sushant

came home from their school, they found their mother, Sunita in an

injured condition on a cot in their house and blood coming out from her

body which had spilt over the ground.

(ii) The accused was found to be present alone in the room where

the deceased was lying in an injured condition.

(iii) No hue and cry was raised by the appellant about any intruder.

No effort was made to call the police.

(iv) The main gate of the house stood closed from inside and the son

of the deceased PW 3 Prashant Yadav had to jump the gate as none

responded to his ringing the bell.

(v) PW 3-Prashant was asked by the appellant to close the door after

he was inside and also to clean the blood which was spilt on the floor.

(vi) The appellant obstructed the child from telephoning his father to

inform him about the occurrence.

(vii) The deceased was alive when her sons reached the house. The

appellant made no effort to get medical help for her.

(viii) It is in the evidence of both, PW 3 & PW 4 that instead of getting

medical assistance, the appellant was pressing the nose and throat of

their mother and pouring water into her mouth resulting in bubbles.

Sunita expired when the appellant was doing so in the presence of her

two sons.

(ix) PW 3 Prashant Yadav as well as his brother PW 4 Sushant Yadav

were also not permitted by the appellant from raising hue and cry.

(x) The appellant made the pretence of calling an ambulance from a

private nursing home which never reached the spot. It is manifest that

no call for an ambulance was made as no ambulance from any nursing

home reached the spot.

(xi) PW 3 Prashant Yadav tried to get out of the room to seek help.

The appellant physically prevented him from doing so.

(xii) The appellant made attempts to throttle PW 3 Prashant Yadav.

(xiii) Both, PW 3 & PW 4 have categorically stated that PW 4 managed

to escape with difficulty and brought a neighbor to the house. The

appellant then fled from the spot from the terrace of their house.

(xiv) The first official record i.e. the form of the police control room

(Exh.PW 21/X1) mentions the presence of the appellant, children and

also that the appellant had been named by the children.

(xv) The police arrested the accused next morning on 23rd September,

2003 from a spot near the house of his in-laws.

(xvi) After his arrest, the appellant made a disclosure statement

leading recovery of two knives (Exh.PW 5/1 & PW 5/2) and blood

stained clothes worn by him.

(xvii) The appellant was wearing the recovered pant, shirt and vest on

22nd September, 2003 when he was found with the injured Sunita by

her two sons.

(xviii) As per the expert medical opinion, the injuries found inflicted on

the body of the deceased were possible by the two recovered knives.

The forensic science laboratory confirmed human blood on the blade of

these two knives.

(xix) The report of the Forensic Science Laboratory confirmed that the

blood group `O' which was the blood group of the deceased was

present on the pant, vest as well as shirt worn by the appellant on 22nd

September, 2003 which were recovered at his instance.

(xx) The forensic examination also confirmed human blood on the

knives recovered at the instance of the appellant which have been

established as the weapons of offence.

(xxi) The forensic examination report confirmed that the deceased was

clutching hair which was similar in morphology and microscopical

character to that of the appellant in her left hand.

(xxii) The injuries found on the deceased were sufficient to cause death

in the ordinary course of nature and all injuries were ante-mortem in

nature.

88. The appellant has failed to render any explanation at all for any

of the above circumstances. His explanation to the effect that some

intruder caused the injuries and ran away is rendered unacceptable

given his conduct in not raising a hue & cry even, let alone giving a hot

pursuit to the attacker and the above circumstances and evidence on

record. Instead, the appellant was found inside the room with the

doors of the house bolted from within and blood on his clothes. The

appellant's conduct even thereafter was suspicious as he failed to get

medical help for the deceased, who was still alive then, and prevented

her sons from informing her husband or getting help. The appellants

actions in physically pulling out the telephone line, attempting to

throttle one son and preventing the other son from reaching other

persons and seeking help, pouring water into her mouth, pressing the

throat of the deceased was highly unnatural and does not inspire any

confidence. On the contrary, these circumstances point towards the

guilt of the appellant. Instead of being concerned with the life of the

dangerously injured lady, he compelled her children to mop her blood

from the floor.

89. In para 153 of Sharad Birdhichand Sarda case (supra) the

Supreme Court has culled out the circumstances which are required

to be established before culpability of a person in a prosecution

based on circumstantial evidence can be concluded. The same reads

as thus:

"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 Sahebrao Bobade v. State of Maharashtra 1973 CriLJ 1783 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."

90. There can be no dispute at all with the well settled principle that

there must stand established an unbroken chain of circumstances from

which the conclusion of the guilt would be required, to be drawn. The

facts established should also be consistent with the only hypothesis of

guilt of the accused and should not be explainable on any other

hypothesis except that the accused is guilty. The chain of evidence

must be so complete so as to leave no ground for conclusion of

innocence of the accused and must show that in all human probability,

offence must have been done by the accused.

91. We find that the learned Trial Judge has considered the evidence

placed on record in great detail and has carefully analyzed the same as

in the context of principles of law which would apply.

92. We have considered the grounds on which the judgment has

been challenged.

93. The cumulative effect of the circumstantial evidence established

before the trial court and extracted above negatives the innocence of

the appellant. In this background, we hold that the appellant has been

rightly found guilty of commission of the offence under Section 302 of

the IPC with which he was charged.

94. So far as the sentence imposed upon the appellant is concerned,

the learned trial Judge has recorded reasons as to why the instant case

does not fall in the rarest of the rare category and has awarded the

sentence of life imprisonment for three months for commission of the

offence under Section 302. Benefit of Section 328 of the IPC has been

given to the convict.

95. We see no reason to disagree with or vary the order of sentence as

well.

96. Before parting with this case, we are constrained to point out the

agony which the two child witnesses would have undergone in having to

recount circumstances leading to their mother's death. Apart from this

emotional agony, the two child witnesses would have been in close proximity

with the person who was accused of having murdered their mother. There

can be no manner of doubt that such an experience would have resulted in

extreme traumatization of these two children. Adding to the whole

experience would be the intimidation which a young child of 12 or 14 years

would feel in the formal environment of the court complex as well as the

court room. It appears that the several guidelines for recording evidence of

child witnesses have not been followed.

97. Extensive guidelines have been laid down in several judicial

pronouncements with regard to the manner in which child witnesses (which

may include child victims) are to be treated. In this regard, reference can be

made by a judicial pronouncement by one of us (Gita Mittal, J) passed on

18th September, 2009 in Crl.A. No.121/2008 entitled Virender Vs. State

wherein the applicable principles were culled out from the various judicial

pronouncements as well as those which came to the fore in the course of

hearing the judgment.

98. As a result of the initiative taken by the Delhi High Court, a child

witness court room stands operationalized in the Karkardooma District

Courts which is implementing the afore-noticed guidelines as well as the

protocol framed for the purposes of the working of the child witness court

room, titled the `Guidelines for Recording of Evidence of Vulnerable

Witnesses in Criminal Matters'. While the effort to provide the necessary

sensitive environment catering to the special needs and sensitivities of the

child witness in every court complex are underway, it is essential that every

court seized with a case involving child witnesses implements the guidelines

and follows them implicitly to ensure fairness in the criminal justice

dispensation system.

99. For all these reasons, we find no merit in this appeal which is hereby

dismissed.

Crl.M.(Bail) No.697/2012

100. Inasmuch as the appeal was taken up for regular hearing, this

application was not pressed.

101. The judgment in the main case having been pronounced, this

application is rendered infructuous and is disposed of as such.

(GITA MITTAL) JUDGE

(J.R. MIDHA, J) JUDGE DECEMBER 21st , 2012 aa