Delhi High Court
Krishan Kumar Rao vs State Nct Of Delhi on 23 December, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 15/2019
% Judgment reserved on: 05.12.2019
Judgment pronounced on: 23.12.2019
KRISHNA KUMAR RAO .....Appellant
Through: Mr. Kanhaiya Singhal, Ms. Heena
Tongri and Mr. Arshid Bashir,
Advs
versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP for State
with Insp. Yash Pal Singh, IO
Sec. Unit, Insp. Rajender Khatri,
P.S. K.N.K. Marg and Insp.
Vishesh Kumar, PS Bhalswa
Dairy
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present appeal has been filed under Section 374(2) of the Code of
Criminal Procedure, (hereinafter referred as 'Cr.P.C.'), against the
judgment dated 22.10.2018 and order on sentence dated 19.11.2018
passed by the learned Additional Sessions Judge, Delhi in Sessions
Case No. 58040/2016 in FIR No. 506/2011 registered under Sections
498A/302/304B and 174A of the Indian Penal Code (hereinafter
referred as 'IPC') at Police Station KNK Marg, whereby the appellant
was convicted and sentenced to imprisonment for a period of one year
for the offence punishable under Section 174A IPC and imprisonment
for life along with a fine of Rs.10,000/- for the offence punishable
under Section 302 IPC and in default of payment of fine to undergo
further simple imprisonment for a period of three months. Both
sentences were directed not to run concurrently.
2. Brief facts of the case, as noticed by the learned trial court, are as
under: -
"1. .......... that on 21.12.2011 Sh. Sudama Singh came to
the police station and informed the police about his visit
to matrimonial home of his daughter where he found lock
on the main door and felt foul smell coming from the flat.
He also alleged that husband of her daughter used to
harass her daughter for bringing more dowry.
2. On his information, police went to flat No. 1-2/123,
Sector -16, Rohini and got the lock of the door opened
and found dead body of Menka, daughter of Sudama
Singh lying on the bed at the first floor. Executive
Magistrate, Saraswati Vihar was called at the spot and
spot was also got inspected and photographed by the
crime team. Executive Magistrate Sh. R.P Singh recorded
statement of Sh. Sudama Singh, who levelled the
allegations of demand of motorcycle and cash by the
husband of his daughter.
3. It was also alleged that his son-in-law was also
involved in a rape case, who was released from jail after
four years and during the said period he had borne
expenses of maintenance of his daughter and daughter's
daughter aged four years. He also narrated various
incidents when his daughter was beaten by his son-in-
law. He also narrated about registration of case against
his son-in-law Krishan Kumar Rao for demand of dowry
at PS Bariya, Bihar and compromise in the said case. He
further stated that his daughter had informed him that
even after compromise her husband Krishan Kumar Rao
was demanding money and motorcycle and used to beat
her.
4. He further stated that when the lock of the abovesaid
flat was opened by the police, his son-in-law Krishan
Kumar Rao and grand-daughter Mahi were not present
in the house and that he had suspicion that his daughter
was killed by his son-in-law.
5. On the basis of statement of Sh. Sudama Singh case u/s
498A/304B/34 IPC was registered. IO collected the
exhibits from the spot and conduced investigation. He
also got conducted postmortem of the deceased and
collected documents including copies of other case
registered against accused Krishan Kumar Rao. Exhibits
were sent to FSL by IO. During investigation the
daughter of deceased was recovered from village
Lokariya, P.S Bariya, Bihar. Accused Krishan Kumar
Rao had absconded and was declared proclaimed
offender by the Court of concerned M.M. During
investigation he was arrested and his disclosure
statement was recorded. He also got recovered the car
which was used by him for fleeing away to Bihar with his
daughter and pointed out the place of occurrence, which
had been purchased by Smt. Ruchi Baj in the auction of
Oriental Bank of Commerce. IO also made interrogation
from the brothers-in-law of deceased namely Surender
Kumar Rao, Subhash Kumar Rao and Manmohan Rao.
He collected FSL result and on the basis of disclosure
statement, injuries reflected in the post-mortem report
and cause of death, the opinion of Autopsy Surgeon on
the weapons of offence found near the body of deceased,
he added offence U/s 302 IPC."
3. After completion of the investigation, a charge sheet was filed and
charges for the offences punishable under Section 498A/302 of the
IPC or alternatively under Sections 304B and 174A of the IPC were
framed against the appellant/accused, to which he pleaded not guilty
and claimed trial.
4. To bring home the guilt of the appellant/accused the prosecution has
examined 28 witnesses in all. Statement of the appellant/accused was
recorded under Section 313 of Cr.P.C wherein he claimed innocence
and stated that he had been falsely implicated in the present case.
5. After hearing counsel for both the sides and on appreciation of entire
evidence available on record, the learned Trial Court convicted the
appellant for the offences under Section 302 and 174A of the IPC and
giving the benefit of doubt to the appellant for the charges under
Sections 498A/304B of the IPC, acquitted the appellant for the said
charges.
6. Learned counsel for the appellant, Mr. K. Singhal opened his
arguments contending that the case of the prosecution is primarily
based on the ocular evidence of the child witness Mahi, who happens
to be the girl child born out of the wedlock of the deceased and the
appellant.
7. Learned counsel further argued that no statement of the girl child was
recorded under section 164 of the Cr.P.C despite the fact that she is
the prime witness to the alleged incident. Arguing along the same
lines, the counsel for the appellant submitted that the statement of the
PW-4 (Baby Mahi) was recorded before the Trial Court after a delay
of 2 years, which gave the prosecution enough time to tutor the child
witness with the story favourable to its case. Moreover, learned
counsel for the appellant argued that from the testimony of PW-5
(Sh. Pramod Singh), the presence of PW-4 (Baby Mahi) is highly
doubtful at the spot on the date of commission of the crime who
deposed that the PW-4 (Baby Mahi) was residing with her Uncle
since Diwali. Negating the testimony of the girl child, the learned
counsel argued that the child witnesses are dangerous witnesses as
they are pliable and liable to be influenced, shaped and moulded
easily. Learned counsel placed reliance on Dattu Ramrao Sakhare vs.
State of Maharashtra reported in (1997) 5 SCC 341, Ranjeet Kumar
Ram vs. State of Bihar reported in 2015 (6) SCALE 529 and Abhay
Kumar Mishra vs. State reported in 2018 SCC Online Del 7851.
8. For his next contention, the learned counsel placed reliance on the
medical and scientific evidence on record. On the basis of the post-
mortem report, learned counsel argued that the record reflects that
there were numerous injuries on the body of deceased which is
contrary to the deposition made by the PW-4 (Baby Mahi) who
deposed that only a single blow was given by the appellant on the
victim. Moreover, learned counsel for the appellant argued that the
FSL report is clearly contrary to the version put forth by the
prosecution as no blood was recovered on the weapon of offence
which has been alleged to be used in the commission of the crime.
9. In addition to the aforesaid learned counsel argued that the
prosecution failed to lift any chance prints/finger prints from the
spot/place of incident even though the place of occurrence was a
locked house, which is a grave lacuna on part of the prosecution.
10. Further, the learned counsel contended that the trial court failed to
take into consideration the plea of alibi raised by the appellant. He
contended that the appellant had already left for his village 10-12 days
prior to the date of incident and was not present at the spot which is
evident from his statement under section 313 Cr.P.C. The learned
counsel further contended that the mere abscondence of the appellant
cannot be taken as an incriminating factor against the appellant and
placed reliance on Bipin Kumar Mondal vs. State of West Bengal
reported in AIR 2010 SC 3638 and Sujit Biswaj vs. State of Assam
reported in 2013 (12) SCC 406.
11. The learned counsel for the appellant contended that the prosecution
failed to prove any motive on the part of the appellant which is also
fatal to the case of the prosecution.
12. Finally, concluding the submissions on behalf of the appellant, the
learned counsel contended that even if this court is of the view that
the appellant is guilty, still, at best, the appellant is liable for an
offence under section 304 Part I of the IPC as there was no intention
on the part of the appellant to commit such an offence which is
evident from the testimony of PW-4 (Baby Mahi). In support of his
contention, he relied upon Golla Yelugu Govindu vs. State of Andhra
Pradesh reported in (2008) 16 SCC 769, K. Ravi Kumar vs. State of
Karnataka reported in (2015) 2 SCC 638 and Feroz vs. State reported
in 2018 SCC Online Del 6457.
13. On the other hand, learned APP for the state contended that the
learned trial court has convicted the appellant after having analysed
each and every relevant material on record and that the well-reasoned
judgment of the learned Trial Court does not call for any interference.
Further, the learned APP contended that the testimony of PW-4 (Baby
Mahi) who is the star witness in the present case duly supports the
case of the prosecution. Placing reliance on the Suryanaryana vs.
State of Karnataka reported in 2001 (1) SCALE 7, she submitted that
the testimony of the child witness can form the basis of the conviction
in the present case.
14. Further, the learned APP submitted that there is no doubt as to the
presence of PW-4 (Baby Mahi) at the house of the appellant as the
appellant in his statement under section 313 Cr.P.C has himself
admitted that he was residing with his wife and daughter in that
particular house. The learned APP further contended that the
submission of the appellant that he was not at the spot of crime and
had gone to his village is not supported with any material on record.
15. Learned APP further contended that the appellant has failed to
mention any prior enmity or grudge with any other person in his
statement under section 313 Cr.P.C. Moreover, the learned APP for
the state contended that the conduct of the appellant after commission
of the crime i.e. keeping his mobile phone switched off, leaving his
four year old daughter at the mercy of his relatives is admissible as res
gestae under section 6 and 8 of the Indian Evidence Act, from which,
an adverse inference against the appellant can be drawn.
16. Further, negating the contention of the appellant as to plea of alibi, the
learned APP argued that the testimony of PW-18 (HC Shiv Kumar)
clearly reflects that the appellant was residing in Delhi for the past 10
months, which contradicts the stand of the appellant.
17. In addition to the aforesaid, learned APP contended that PW-22
(Dr. Sudesh Kumar) proved on record the post mortem of the
deceased. Learned APP further argued that the charge under section
174A of the IPC i.e. the proclamation of the appellant as a Proclaimed
Offender has been proved by the prosecution by relying on
Ex. PW-18/G and Ex. PW-18/F being the order of proclamation and
the statement of HC Shiv Kumar who executed the proclamation
order respectively.
18. Concluding her submissions, learned APP for the state argued that
there exist certain contradictions, omissions, inconsistencies and
embellishments in the testimony of the prosecution witnesses but the
same are not such which go to the root of the present case and cannot
form the basis of acquittal of the appellant. In support of her
contention, learned APP relied on the case of Yogesh Singh vs.
Mahabeer Singh and Ors. reported in AIR 2016 SC 5160.
19. We have heard the learned counsel for the appellant as well as the
state.
20. The case of the prosecution is primarily based upon the testimony of
the child witness Mahi, the daughter of the deceased and the
appellant, who was examined as PW-4 (Baby Mahi). In order to
finally adjudicate the present case, we deem it appropriate to refer to
the well settled law in regard to the testimony of a child witness.
21. In Digamber Vaishnav and Ors. vs. State of Chhattisgarh reported in
AIR 2019 SC 1367, the Apex Court has recently reiterated the well
settled principles of the law relating to testimony of child witness. The
relevant portions of the said judgment have been reproduced as under:
"21. The case of the prosecution is mainly dependent on
the testimony of Chandni, the child witness, who was
examined as PW-8. Section 118 of the Evidence Act
governs competence of the persons to testify which also
includes a child witness. Evidence of the child witness
and its credibility could depend upon the facts and
circumstances of each case. There is no Rule of
practice that in every case the evidence of a child
witness has to be corroborated by other evidence before
a conviction can be allowed to stand but as a prudence,
the court always finds it desirable to seek corroboration
to such evidence from other reliable evidence placed on
record. Only precaution which the court has to bear in
mind while assessing the evidence of a child witness is
that witness must be a reliable one.
22. This Court has consistently held that evidence of a
child witness must be evaluated carefully as the child
may be swayed by what others tell him and he is an easy
prey to tutoring. Therefore, the evidence of a child
witness must find adequate corroboration before it can
be relied upon. It is more a Rule of practical wisdom
than law. [See Panchhi and Ors. v. State of U.P., (1998)
7 SCC 177, State of U.P. v. Ashok Dixit and Anr.(2000) 3
SCC 70, and State of Rajasthan v. Om Prakash,(2002) 5
SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil
Nadu, (2012) 10 SCC 451, this Court has emphasized the
need to accept the testimony of a child with caution after
substantial corroboration before acting upon it. It was
held that:
36. It is a settled principle of law that a child
witness can be a competent witness provided
statement of such witness is reliable, truthful and
is corroborated by other prosecution evidence.
The court in such circumstances can safely rely
upon the statement of a child witness and it can
form the basis for conviction as well. Further, the
evidence of a child witness and credibility thereof
would depend upon the circumstances of each
case. The only precaution which the court should
bear in mind while assessing the evidence of a
child witness is that the witness must be a reliable
one and his/her demeanour must be like any other
competent witness and that there exists no
likelihood of being tutored. There is no Rule or
practice that in every case the evidence of such a
witness be corroborated by other evidence before
a conviction can be allowed to stand but as a Rule
of prudence the court always finds it desirable to
seek corroboration to such evidence from other
reliable evidence placed on record. Further, it is
not the law that if a witness is a child, his
evidence shall be rejected, even if it is found
reliable."
22. In State Of M.P vs. Ramesh & Anr reported in (2011) 4 SCC 786, the
Apex Court while taking into consideration its previous decisions has
held as under:
"7. In Rameshwar S/o Kalyan Singh v. The State of
Rajasthan, AIR 1952 SC 54, 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:
".....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 Mangoo & Anr. v. State of Madhya Pradesh, AIR
1995 SC 959, 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 Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726,
this 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 Nivrutti Pandurang Kokate & Ors. v. State of
Maharashtra, AIR 2008 SC 1460, this Court dealing with
the child witness has observed as under:
"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 & Ors. v. State of
Maharashtra, AIR 2009 SC 2292).
12. In State of U.P. v. Krishna Master & Ors., AIR 2010
SC 3071, this Court held that there is no principle of law
that it is inconceivable that a child of tender age would
not be able to recapitulate the facts in his memory. A
child is always receptive to abnormal events which take
place in his life and would never forget those events for
the rest of his life. The child may be able to recapitulate
carefully and exactly when asked about the same in the
future. In case the child explains the relevant events of
the crime without improvements or embellishments, and
the same inspire confidence of the Court, his deposition
does not require any corroboration whatsoever. The
child at a tender age is incapable of having any malice or
ill will against any person. Therefore, there must be
something on record to satisfy the Court that something
had gone wrong between the date of incident and
recording evidence of the child witness due to which the
witness wanted to implicate the accused falsely in a case
of a serious nature.
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 & Anr. v.
State of Punjab, (2006) 13 SCC 516).
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.
23. In State of U.P v. Krishna Master reported in (2010) 12 SCC 324 the
Apex court has held as follows:
"36. The above stated reasons are the only grounds on
which testimony of witness Madan Lal is disbelieved by
the High Court. This Court fails to understand as to on
what principle and on which experience in real life, the
High Court made a sweeping observation that it is
inconceivable that a child of Madan Lal's
understanding would be able to recapitulate facts in his
memory witnessed by him long ago. 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."
24. Returning to the facts of the case after having discussed the relevant
provision of law, we deem it necessary to peruse the testimony of the
star eye witness of the present case i.e. PW-4 (Baby Mahi). The
deposition of PW-4 (Baby Mahi) is reproduced herein:
"Since the witness is a child, therefore, to understand
that she is capable of understanding the questions and
depose I asked certain preliminary questions.
Q: What is your name?
Ans: My name is Mahi.
Q. How old are you?
Ans: I am six years old.
Q. What is name of your mother?
Ans: Menka.
Q. In which class do you study?
Ans: I study in U.K.G.
Q. Do you know what is good or bad?
Ans: I know.
Q. What is name of your school?
Ans: Kiran Satsangi Higher Memorial Public School.
Q. Whether you should speak truth or lie?
Ans: I should always speak truth.
After questioning her I am satisfied that child
appear to be normal and able to understand questions
and she is answering rationally without any fear. Hence,
I start recording her evidence without oath.
Q. What is your father's name?
Ans. My father's name is Krishna Rao. He is present in
the court today (correctly identified by the
witness).
Q. What had happened with your mother?
Ans. My mother was killed by my father.
Q: Whether you have seen killing your mother by you
father?
Ans. Yes.
Q. How your father had killed your mother?
Ans. My mother did not do anything, but my father had
hit her with danda (Meri Ma ne kuch nahi kiya,
par mere papa ne dande se maar diya).
Q. What happened when your father hit with danda to
your mother?
Ans. My mother started bleeding from her eyes, when
my father hit her with danda (jab papa ne dande se
mara aankh se khoon aa gaya).
Q. Where you were at the time of incident?
Ans. I was on the bed.
Q. At that time, where you live?
Ans. Us samay hum ghar par rahte the.
Q. What happened when your father had beaten your
mother?
Ans. Papa took me to his sister's house.
Q. How he took you to his sister's house?
Ans. He took me there by train.
Q. Do you know the name of papa's sister?
Ans. I do not know (Nahi Pata).
Q. Where your mother had left when your father took
you?
Ans. My father put blanket on my mother and left
(kambhal odha kar chale gaye).
Q. What is name of your mother?
Ans. My mother's name is Menka.
Q. Who else were residing in the house?
Ans. I, my mother and my father were residing in
ground and other persons were residing on upper
floor. (Main mummy aur papa neeche rehte the
aur doosre log upper rahte the).
Q. Whether your father beat your mother earlier
also?
Ans. He had beaten my mummy on that only, (Khali us
din maratha).
Q. Do you know the length of the said danda, by
which your father had beaten your mother?
Ans. Bahut Lamba danda tha.
Q. Do you recognized the said danda, if it will be
shown to you?
Ans. Yes.
Q. Do you know the date on which your father had
beaten your mother?
Ans. I do not know.
Q. Whether do you study, when your father beaten
your mother?
Ans. I was studying in Nursery.
At this stage, MHC(M) has produced parcel No. 5,
sealed with the seal of court one sealed envelope sealed
with the seal of court is produced and same is opened
and it found containing a danda. The same danda is
shown to the witness, witness stated that it is not the
same danda, she further stated that, by lifting her hand
complete that, "Itna Lamba Tha'.
In her cross-examination, she deposed as under:
XXXXX by Shri R.K. Singh, Ld. Counsel for the
accused.
It is wrong to suggest that I have stated the facts today,
as told to me by my maternal grandparents. Vol. I had
seen my father hitting on my mother. It is further wrong
to suggest that today my Nana has told me to speak
whatever he has told me today.
Q. It is put to you that you are speaking wrongly that,
your papa hit your mother?
Ans. Papa ne mummy ko mara tha.
It is wrong to suggest that on the day when my
mother was beaten, my papa was not at home. It is
wrong to suggest that my papa was in Bihar, on the day
when my mother had received injuries.
Q. Whether police had inquired from you?
Ans. Yes.
It is wrong to suggest that police had not recorded
my statement. It is wrong to suggest that I am deposing
falsely on the tutoring of my maternal grandfather."
25. Applying the law as discussed above to the facts of the present case, it
has to be seen whether the Trial Court took the precautions as
enunciated above to be satisfied with the mental understanding of the
child to depose before the court. The testimony of PW-4 (Baby Mahi)
as discussed above reflects that prior to the recording of the evidence
of PW-4 (Baby Mahi) the court had satisfied itself that the child was
capable of understanding the questions and giving rationale answers.
It was only after the said exercise that the court went on to examine
the child as a witness in the present case as PW-4 (Baby Mahi).
26. The law further mandates that the testimony of the child witness
should be carefully scrutinized as there exists scope of tutoring and
embellishments. In the present case, the witness was only 4 years old
at the time the crime was committed. Further, her testimony was
recorded after a period of two years before the court. The testimony of
PW-4 (Baby Mahi) reflects that when asked about as to what
happened to her mother, she clearly deposed that "My mother was
killed by my father." Further, when asked about as to how her mother
was killed, she deposed that "My mother did not do anything, but my
father had hit her with danda (Meri Ma ne kuch nahi kiya, par mere
papa ne dande se maar diya)."
27. The counsel for the appellant has contended that the chances of
tutoring cannot be ruled out as PW-4 (Baby Mahi) was in the control
of her maternal grandparents two years immediately preceding the
recording of her testimony. In addition to the aforesaid he contended
that no statement under Section 164 Cr.P.C. was got recorded by the
investigation agency. Further, he has argued that the presence of the
child at the spot is highly doubtful as PW-5 (Sh. Parmod Singh) has
deposed that PW-4 (Baby Mahi) was residing with her uncle since
Diwali.
28. The trial court, after being satisfied about the mental understanding of
PW-4 (Baby Mahi), got her deposition recorded. The testimony of
PW-4 (Baby Mahi) reflects that the child witness was not deposing
against any other family member or a stranger, but her own father.
She has elaborated upon the entire incident that took place on the day
when her mother was killed by her father. It would call for courage
and conviction to name her own father, as the child was able to
understand that she was a witness to a murder. In addition to the
aforesaid, the submission that PW-4 (Baby Mahi) was in the custody
of her maternal grandparents and the chances of tutoring cannot be
ruled out do not sustain as the bare perusal of the testimony of PW-4
(Baby Mahi) would show that there exists no exaggerations or
embellishments in her testimony. When asked about any such prior
incident of beating, she has reiterated the present incident and has
clearly deposed that "He had beaten my mummy on that only, (Khali
us din mara tha)." Moreover, the child witness withstood the test of
cross-examination by the counsel for the appellant during the trial
proceedings and there is nothing on record which would shake the
veracity of the said witness. Hence, the argument of the learned
counsel for the appellant that the child witness is not trustworthy does
not find favour of this court.
29. The learned counsel for the appellant has argued that the presence of
the child witness, PW-4 (Baby Mahi) is highly doubtful at the spot. In
support of his contention, he relies upon the cross-examination of
PW-5 (Sh. Parmod Singh). PW-5 (Sh. Parmod Singh) in his cross-
examination has deposed that:
"I came to know that, Mahi was living at her uncle's
house since Diwali and she had not visited Delhi till her
recovery thereafter."
30. The presence of PW-4 (Baby Mahi) is established by her own
testimony wherein she has clearly deposed that:
"Q. Where you were at the time of incident?
Ans. I was on the bed.
Q. At that time, where you live?
Ans. Us samay hum ghar par rahte the"
31. The cross-examination of the said witness i.e. PW-4 (Baby Mahi)
reflects that nothing different was suggested to the witness in order to
extract anything to the contrary. Moreover, the statement of the
appellant under section 313 Cr.P.C. is against the stand taken by the
appellant wherein the appellant has failed to give any valid
explanation to counter the presence of PW-4 (Baby Mahi) at the spot.
The appellant in his statement under section 313 Cr.P.C. has deposed
as under:
"Q54. It is further in evidence against you that PW4
Mahi has also deposed that at the time of incident, she
was on the bed. She further deposed that "us samay hum
ghar par rehte the". She also deposed that after the
incident, papa took her to his sister's house by train. She
also deposed that at the time of leaving the house, her
father put blanket on her mother and left "kambal odha
kar chale gaye". She also deposed the name of her
mother as Menka. She also deposed that she, her mother
and her father were residing on ground floor and other
persons were residing on upper floor "Mein, mummy aur
papa niche rehte the aur dushre log upar rehte the".
What have you to say?
Ans. It is incorrect. My daughter was tutored by my in-
laws with whom she is residing."
32. The contention of the appellant is further negated by the bare perusal
of the statement of PW-5 (Sh. Parmod Singh) which reflects that he
did not have the first-hand knowledge of the said fact as he deposed
that "I came to know that, Mahi was living at her uncle's house since
Diwali and she had not visited Delhi till her recovery thereafter." The
statement of PW-5 (Sh. Parmod Singh) reflects that he had only heard
about the absence of PW-4 (Baby Mahi) from the spot and could not
depose with conviction. Having regard to the aforesaid discussion, we
are of the view that appellant has failed to counter the presence of the
PW-4 (Baby Mahi) at the spot.
33. Having discussed the testimony of the child witness, we deem it
appropriate to refer to the medical evidence on record. The post-
mortem report (Ex. PW-22/A) was proved on record by Dr. Sudesh
Kumar. Dr. Sudesh Kumar was examined as PW-22 before the
learned trial court who deposed as:
"On 22.12.2011, I was posted at BJRM Hospital. On
that day, I had conducted post-mortem on the body of
Menka W/o Krishna Rao with alleged history to the effect
that the dead body of Menka was found in a room on a
bed and covered by quilt and sent to BJRM Hospital for
autopsy vide case FIR No. 506/11.
xxxx xxxx xxxx xxxx
During post-mortem, the following external injuries were
found on the body of Menka:
i. abrasion mark present at the middle of the neck
left side above adam's apple of sixe 2 x 1.5 cm blood clot
present under the skin over abrasion mark.
ii. Bruised wound present on upper and lower lip at
inner aspect on cut section.
iii. Bruised present at middle of the right thigh of size
5x8 cm at anterior aspect.
iv. Bruised present at middle of right leg at anterior
aspect of size 4x1 cm.
v. Bruised present at the dorsal aspect of left hand of
size 5x2 cm.
vi. Bruised present at the dorsal aspect of left foot of
size 3x2 cm.
vii. Bruised present at medical aspect of right leg
lower part of size 2x1 cm.
viii. Bruised present at left inguinal region of size 4x3
cm.
During post-mortem, the following internal injuries were
found:
i. Sub scalp of haematoma present at right temporal
region and frontal region of size 4x2 cm & 3x2 cm
respectively.
ii. SDH & SAH present right temporal region and
frontal region blood clot present in right occipital region.
iii. Effusion of blood present in trachea (neck).
iv. Blood clot present in the pleural cavity, bilateral
lungs oedematous, petechial haemorrhages present on
the visceral surface on bilateral lungs on cut section,
frothy haemorrhage fluid present on cut section of
bilateral lungs.
xxxxx xxxx xxxx xxxx
I had prepared the post-mortem report No. 1197
dated 22.12.2011, which bears my signature at point-A
and the same is exhibited as Ex.PW22/A. After carrying
post-mortem, I had opined cause of death as combined
effect of coma, shock and asphyxia. All the injuries were
found ante-mortem in nature. Time since death was about
12 days 10 hours approximately. I had taken the blood
and viscera of deceased and after sealing the same,
handed over the said pullanda to IO.
During investigation, I had received three parcels
sealed with the seal of YP. Parcel No. 1 was found
containing one pillow, parcel No. 2 was found containing
one stone and parcel No. 3 found containing one wooden
rod. I had inspected the aforesaid articles and opined
that injury No. 1 & 2 mentioned in post-mortem report
Ex.PW22/A, can be caused by said pillow and injury No.
3 to 8 can be caused by said wooden rod and injury
overhead can be caused by cylindrical stone. My opinion
in this regard is Ex.PW22/B, which bears my signature at
point A. After giving opinion, I had resealed the
aforesaid articles with the seal of BJRM Mortuary and
handed over the same to SI Jitender Joshi alongwith one
sample seal. I had also mentioned the sizes and weight
of wooden rod, stone and also the size of pillow in my
opinion Ex.PW22/B.
In his cross-examination, he deposed as under:
It is wrong to suggest that I had not carried out the post-
mortem properly or that prepared post-mortem report at
the instance of IO. It is further wrong to suggest that I
had given false subsequent opinion at the instance of
IO."
34. From the testimony of PW-22 (Dr. Sudesh Kumar), it is evident that
the "cause of death was combined effect of coma, shock and
asphyxia." Further, PW-22 (Dr. Sudesh Kumar) has opined that "I
had inspected the aforesaid articles and opined that injury No. 1 & 2
mentioned in post-mortem report Ex.PW22/A, can be caused by said
pillow and injury No. 3 to 8 can be caused by said wooden rod and
injury overhead can be caused by cylindrical stone. My opinion in
this regard is Ex.PW22/B, which bears my signature at point A" and
the recovery of the said weapon of offence has been established by the
prosecution vide recovery memo (Ex. PW-26/A).
35. The investigation agency found the weapon of offence at the spot
which were seized by the investigation agency vide seizure memo
Ex. PW-26/A. In order to prove the recovery of the weapons, the
prosecution examined PW-26 (SI Vishesh Kumar) and PW-28 (Insp.
Yashpal Singh).
36. PW-26 (SI Vishesh Kumar) in his deposition before the court has
deposed that:
"From the spot, IO had seized one quilt (razai), one
bedsheet, one pillow and on stone which was found lying
near the double bed and one wooden danda about 2 ½
feet, which was found lying under the double bed. IO had
kept the said articles in separate cloth pullandas. IO had
kept the quilt (Razai) in a plastic sac. IO had sealed the
pullanda containing the aforesaid articles with the seal
of YP and seized the same vide seizure memo Ex.
PW26/A, which bears my signature at point-A."
In his cross-examination, he has deposed as under:
"At the time when I reached at the house of
accused situated at sector-16, Rohini, a lock was hangin
at the door of the said house. We called one tala-
chabiwala and with his help, the said lock was
opened/broken.
xxxx xxxx xxxx xxxx
.... IO had called the crime team and crime team officials
have made efforts to lift chance-prints.
....It is wrong to suggest that no such articles were seized
from the said room or that the said articles were planted
in order to falsely implicate the accused in the present
case after due consultation with Sh. Sudama Singh."
37. PW-28 (Insp. Yashpal Singh) in his deposition has deposed as under:
" SHO had called Executive Magistrate Sh. Rampal
Singh at the spot. SHO had called Crime Team at the
spot and Crime Team Officials had also inspected the
spot. Photographer of Crime Team also took the
photographs.
xxxx xxxx xxxx xxxx
From the spot, I had seized one quilt (razai), one
bedsheet, one pillow and one stone which was found
lying near the double bed and one wooden danda about 2
½ feet, which was found lying under the double bed. I
had kept the said articles in separate cloth pullandas and
kept the said articles in separate cloth pullandas. I had
also kept the quilt (razai) in a plastic sac. I had sealed
the pullanda containing the aforesaid articles with the
seal of YP and seized the same vide seizure memo
already Ex. PW26/A, which bears my signature at point-
X.
In his cross-examination, he deposed as:
It is wrong to suggest that I had not conducted fair and
proper investigation of the present case. It is wrong to
suggest that no such articles were seized from the said
room or that the said articles were planted in order to
falsely implicated the accused in the present case after
due consultation with Sh. Sudama Singh."
38. The recovery of the weapon from the spot of crime together with the
medical evidence on record establishes the case of the prosecution.
39. The argument of the counsel for the appellant that only a single blow
was given by the appellant to the victim is contrary to the post-
mortem report which reflects multiple injuries. Moreover, PW-4
(Baby Mahi) has nowhere deposed that the appellant hit the deceased
once but has deposed that "He had beaten my mummy on that only,
(Khali us din maratha)."
40. The counsel has further contended that the absence of blood on the
weapon of offence has not been explained by the prosecution. To
meet the contention of the counsel for the appellant that no blood was
present on the weapon of offence i.e. the wooden rod, cylindrical
stone and pillow, we deem it necessary to refer to the FSL report
(Ex. PW15/A) which reads as follows:
"DESCRIPTION OF PARCELS & CONDITION OF
SEALS
SEALS INTACT AS PER F.A.'s LETTER
Sealed cloth parcels : 05
Sealed envelope : 01
Sealed plastic bag parcel : 01
__
TOTAL : 07 (Seven)
DESCRIPTION OF ARTICLES CONTAINED IN
PARCEL
Parcel '1' : One sealed plastic bag parcel sealed with the
seal of "YP" containing exhibit '1'.
Exhibit '1' : One quilt having brown stains.
Parcel '2' : One sealed cloth parcel sealed with the seal of
"YP" containing exhibit '2'.
Exhibit '2' : One bedsheet having brown stains.
Parcel '3' : One sealed cloth parcel sealed with the seal of
"FMT BJRM HOSPITAL DELHI" containing
exhibit '3'.
Exhibit '3' : One pillow having brown stains.
Parcel '4' : One sealed cloth parcel sealed with the seal of
"FMT BJRM HOSPITAL DELHI" containing
exhibit '4'.
Exhibit '4' : One stone.
Parcel '5' : One sealed cloth parcel sealed with the seal of
"FMT BJRM HOSPITAL DELHI" containing
exhibit '5'.
Exhibit '5' : One wooden danda.
Parcel '6' : One sealed cloth parcel sealed with the seal of
"FMT BJRM HOSPITAL DELHI" containing
exhibits '6a', '6b', '6c' & '6d'.
Exhibit '6a' : One salwar having brown stains.
Exhibit '6b' : One lady's shirt having brown stains.
Exhibit '6c' : One underwear having brown stains.
Exhibit '6d' : One socks.
Parcel '7' : One sealed envelope sealed with the seal of
"FMT BJRM HOSPITAL DELHI" containing
exhibit '7'.
Exhibit '7' : Foul smelling brown gauze cloth piece
described as 'Blood gauze'.
xxxx xxxx xxxx xxxx
RESULTS OF ANALYSIS
1. Blood was detected on exhibits '1', '2', '3', '6a',
'6b', '6c' and '7'.
2. Blood could not be detected on exhibits '4', '5'
and '6d'.
3. Report of serological analysis in original is
attached herewith.
Note : Remnants of the exhibits have been sealed with
the seal of "P.Sh. FSL DELHI"."
41. The serological report of the biology division (Ex. PW15/B) reads as
follows:
Exhibits Species of Origin ABO
Grouping/Remarks
'1' Quilt Human 'A' group
'2' Bedsheet Human 'A' group
'3' Pillow Human 'A' group
'6a' Salwar Human No reaction
'6b' Lady's Human No reaction
shirt
'6c' Human No reaction
Underwear
'7' Blood Human No reaction
stained gauze
cloth piece
42. The perusal of the FSL report (Ex. PW15/A) reflects that the pillow
which was recovered from the spot contained Human Blood of 'A'
group. Moreover, even though no blood was found on the wooden rod
and the cylindrical stone, the opinion of doctor in this regard cannot
be ignored. The opinion of the doctor PW-22 (Dr. Sudesh Kumar) that
"injury No. 3 to 8 can be caused by said wooden rod and injury
overhead can be caused by cylindrical stone. My opinion in this
regard is Ex.PW22/B, which bears my signature at point A" is
sufficient in the ordinary course to establish the case of the
prosecution.
43. The counsel has further argued that the investigation carried out by
the investigation agency is defective as the investigation agency failed
to retrieve any fingerprints/chance prints from the spot. The learned
APP has drawn our attention to the testimony of PW-3 (Retd. SI Prem
Singh) who has deposed that "No finger prints were found by finger
prints proficient." We may further refer to the testimony of PW-26
(SI Vishesh Kumar) who in his cross-examination has deposed that
"IO had called the crime team and crime team officials have made
efforts to lift chance-prints". The fact that no finger prints/chance
prints could be lifted from the spot by the investigating agency despite
best efforts, it cannot be a ground in favour of the appellant or be
deemed as defective investigation. Hence, the contention of the
appellant that the failure of the prosecution to retrieve any chance
prints from the spot has proved fatal to them is answered in the
negative.
44. The learned counsel for the appellant has further contended that the
trial court failed to consider the plea of alibi of the appellant. The
counsel contended that the appellant was not present at the spot and
had gone to his village 10-12 days prior to the date of incident to get
his daughter admitted in a school in his native village. At this stage,
we deem it appropriate to refer to the law in regard to plea of alibi. In
Binay Kumar Singh v. State of Bihar reported in AIR 1997 SC 322
the Apex court has held as under:
"22. We must bear in mind that an alibi is not an
exception (special or general) envisaged in the Indian
Penal Code or any other law. It is only a rule of evidence
recognised in Section 11 of the Evidence Act that facts
which are inconsistent with the fact in issue are
relevant." Illustration (a) given under Section 11 of the
Evidence Act is then partially reproduced in the decision,
but it is fully reproduced below: "The question is whether
A committed a crime at Calcutta on a certain date; the
fact that on that date, A was at Lahore is relevant. The
fact that, near the time when the crime was committed, A
was at a distance from the place where it was committed,
which would render it highly improbable, though not
impossible, that he committed it, is relevant."
23. This Court then went on to say, "The Latin word alibi
means "elsewhere" and that word is used for convenience
when an accused takes recourse to a defence line that
when the occurrence took place he was so far away from
the place of occurrence that it is extremely improbable
that he would have participated in the crime. It is a basic
law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another
person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in
the crime. The burden would not be lessened by the mere
fact that the accused has adopted the defence of alibi.
The plea of the accused in such cases need be considered
only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution
succeeds in discharging the burden it is incumbent on
the accused, who adopts the plea of alibi, to prove it
with absolute certainty so as to exclude the possibility of
his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has
been established satisfactorily by the prosecution
through reliable evidence, normally the court would be
slow to believe any counter-evidence to the effect that he
was elsewhere when the occurrence happened. But if the
evidence adduced by the accused is of such a quality and
of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene
when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt.
For that purpose, it would be a sound proposition to be
laid down that, in such circumstances, the burden on
the accused is rather heavy. It follows, therefore, that
strict proof is required for establishing the plea of
alibi."
(emphasis supplied)
45. Applying the said principles of plea of alibi to the present case, it was
for the appellant to prove that he was elsewhere and also to prove
with absolute certainty to exclude his presence at place of occurrence
by way of any oral or documentary evidence. The appellant failed to
do so rather, to the contrary the prosecution has been able to prove the
presence of the appellant at the spot of crime with the help of the
testimony of PW-4 (Baby Mahi), which has stood the test of cross-
examination. Hence, the plea that the appellant went to his native
village to get the admission of his daughter in a school fails.
46. The next contention of the counsel for the appellant relates to the
absence of motive on the part of the appellant. The counsel has argued
that the prosecution could not prove any motive on part of the
appellant to commit the said crime. We tend to rely on the dicta of
Bipin Kumar Mondal vs. State of West Bengal reported in AIR 2010
SC 3638. The Apex court in the said case has held:
"19. It is settled legal proposition that even if the
absence of motive as alleged is accepted that is of no
consequence and pales into insignificance when direct
evidence establishes the crime. Therefore, in case there
is direct trustworthy evidence of witnesses as to
commission of an offence, the motive part loses its
significance. Therefore, if the genesis of the motive of
the occurrence is not proved, the ocular testimony of
the witnesses as to the occurrence could not be
discarded only by the reason of the absence of motive, if
otherwise the evidence is worthy of reliance. Vide Hari
Shankar v. State of U.P.1996) 9 SCC 40; Bikau Pandey
and Ors. v. State of Bihar (2003) 12 SCC 616; and Abu
Thakir and Ors. v. State of Tamil Nadu (2010) 5 SCC
91."
47. This court has time and again held that the importance of motive
arises where there exists no ocular evidence i.e. a case based on
circumstantial evidence. The relevance of proving motive loses its
importance in a case where well-established ocular evidence is
available. In the present case wherein, the prosecution has been able
to establish its case on the basis of the testimony of PW-4 (Baby
Mahi) which is corroborated by the medical evidence on record, the
mere absence of motive cannot be the basis to acquit the appellant.
Hence, the contention of the appellant that the failure of the
prosecution to prove the motive is detrimental to the case of the
prosecution is answered in the negative.
48. The alternate submission of the counsel for the appellant is that the
case of the appellant falls under Section 304 Part I IPC as there is no
certain evidence to prove that the appellant had the intention to kill the
deceased which is evident from the testimony of PW-4 (Baby Mahi)
wherein she has mentioned that there was no previous
altercation/fights between the appellant and the victim. In order to
prove the factum of intention, we deem it necessary to refer to the
case of Balu and Ors. vs. The State of Maharashtra reported in
(2015) 3 SCC 409. The Apex Court has held as under:
17. Relying on the aforesaid principle of law, recently
this Court in Pulicherla Nagaraju @ Nagaraja Reddy v.
State of Andhra Pradesh (2006) 11 SCC 444, again
examined the issue as to what relevant factors should be
kept in consideration while deciding the question as to
whether case in hand falls Under Section 302 or 304
Part-I or Part-II. Justice Raveendran speaking for the
Court held in para 29 as under:
The intention to cause death can be gathered
generally from a combination of a few or several
of the following, among other, circumstances: (i)
nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked
up from the spot; (iii) whether the blow is aimed at
a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act
was in the course of sudden quarrel or sudden
fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any
premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden
provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other special
circumstances with reference to individual cases
which may throw light on the question of intention.
Be that as it may.
49. Applying the principles as discussed hereinbefore to the present case,
we find that there is nothing on record to show that the act of the
appellant was due to sudden quarrel or in the heat of passion.
Moreover, the deposition of PW-4 (Baby Mahi) further corroborates
the aforesaid fact wherein she has mentioned that "My mother did not
do anything, but my father had hit her with danda (Meri Ma ne
kuch nahi kiya, par mere papa ne dande se maar diya)." In addition
to the same, the appellant in his statement under 313 Cr.P.C has
nowhere stated that the act was due to sudden quarrel or that was
caused due to provocation. Further, the post-mortem report also
diminishes any scope of converting the sentence of the appellant to a
lesser one as it is reflected from the post-mortem report that around
seven injuries with different weapons were caused on the body of the
victim. Moreover, the report also suggests that the one of the causes of
death was asphyxia which shows that the appellant had the clear
intention to murder the victim. Hence, in accordance with the
aforesaid discussion, there is no possibility of altering the sentence of
the appellant from section 302 to 304 Part I IPC.
50. To conclude, the testimony of the PW-4 (Baby Mahi) clearly
establishes the guilt of the appellant to commit the act of murder upon
his own wife. The said fact has been corroborated by the recovery of
the weapon of offence and the post-mortem report on record.
Moreover, the appellant has failed to shake the veracity of the child
witness PW-4 (Baby Mahi) and put on record any evidence supporting
his case. The plea of alibi has already been decided in the negative
due to the failure of the appellant to put any ocular or documentary
evidence on record. Hence, in terms of the above, the appeal of the
appellant is dismissed. The findings of the trial court as to the
sentencing under section 302 of the Indian Penal Code is upheld.
51. Trial Court Record be sent back along with a copy of this judgment.
52. A copy of this judgment be also sent to Superintendent of Jail, Tihar
Jail Delhi.
SANGITA DHINGRA SEHGAL, J.
MANMOHAN, J.
DECEMBER 23, 2019
afa
