Jharkhand High Court
Rama Shankar Gupta vs The State Of Jharkhand on 5 February, 2024
Bench: Rongon Mukhopadhyay, Sanjay Prasad
Criminal Appeal (D.B.) No. 356 of 2016
Against the judgment of conviction dated 19.03.2016 and order of
sentence dated 22.03.2016 passed by Sri Manoj Kumar Singh, learned
Additional Sessions Judge II, West Singhbhum at Chaibasa in Sessions
Trial No. 313 of 2007.
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Rama Shankar Gupta ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : M/s. Mr. A. K. Kashyap, Senior Advocate &
Anurag Kashyap, Advocate
For the Respondent : Mrs. Priya Shrestha, Special P. P.
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Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE SANJAY PRASAD
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Per, R. Mukhopadhyay, J.
Heard Mr. A. K. Kashyap, learned senior counsel for the
appellant and Mrs. Priya Shrestha, learned Special P. P. for the State.
2. This appeal is directed against the judgment of conviction
dated 19.03.2016 and order of sentence dated 22.03.2016 passed by Sri
Manoj Kumar Singh, learned Additional Sessions Judge II, West
Singhbhum at Chaibasa in Sessions Trial No. 313 of 2007 whereby and
whereunder the appellant has been convicted for the offences punishable
under Sections 302/498A of I.P.C. and has been sentenced to undergo
rigorous imprisonment for life with a fine of Rs. 5,000/- under Section
302 of I.P.C. and rigorous imprisonment for 3 years along with a fine of
Rs. 5,000/- for the offence under Section 498A of I.P.C. and in default of
payment of fine, the appellant has to undergo simple imprisonment for 6
months. Both the sentences were directed to run concurrently.
3. The prosecution case in brief is that the marriage of the
daughter of the informant was solemnized with the appellant about 10
years ago. It was a love marriage. Out of the said wedlock, the couple
had three children. The appellant initially used to run a hotel, but at
present, he is unemployed. It has been alleged that on 17.08.2007 at
about 6:00 P.M., she had visited the house of her daughter and found the
appellant and her daughter quarrelling and the appellant was giving
threat to her daughter. The appellant was a drunkard and after marriage
her daughter was subjected to torture and assault. It has been alleged
that after pacifying the situation, she had come back home at around 7:00
P.M. and at about 8:00 P.M., her grand-daughter Sweeti Kumari came
crying and disclosed that the appellant had set ablaze her mother by
pouring kerosene oil over her. When she rushed to the house of the
appellant along with her sons Babloo Sahay and Sacchidanand Sahay,
she found her daughter fully burnt and lying in an unconscious state.
She was thereafter taken to Noamundi Tisco Hospital whereafter giving
preliminary treatment she was referred to Tata. On the way to Tata, her
daughter breathed her last.
Based on the aforesaid allegations, Gua (Bada Jamda O.P.) P. S.
Case No. 56 of 2007 was instituted for the offences punishable under
Section 302 of I.P.C. On completion of investigation, charge-sheet was
submitted under Sections 302 and 498A of I.P.C. against the appellant,
wherein after cognizance was taken and the case was committed to the
court of Sessions vide order dated 04.12.2007. Charge was framed for the
offences punishable under Sections 302 and 498A of I.P.C. and the
contents of the charge were read over and explained to him in Hindi to
which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as 7 witnesses in
support of its case.
P.W. 1 - Dr. Sudama Prasad had conducted autopsy on the dead
body of Preeti Gupta. He has stated that on 19.08.2007, he was posted as
a Medical Officer at Sadar Hospital, Chaibasa. He had found the
following injuries:
External finding:
(i) Dermal epidermal from head to foot.
(ii) Multiple diffused blister are present on different places on
her body. Burn involving muscle and deep stricture of
body. The abdomen and throx were stricture exposed
approximately 90% burn.
Internal findings:
Brain congested. Lungs congested. Carbon soot are present
inside the trachea canel. Chest left empty. Right full stomach
contained semi-digested food particles and others vescaras N.A.D.
The cause of death was found to be hypovolumic shock due to
burn. The post mortem report is in his hand-writing and bears
his signature and it has been marked as Exhibit 1.
In his cross-examination, he has stated that he did not mention
kerosene oil smell coming from the body. If a body of a lady is set on fire
from foot to head, her hairs must be burnt to some extent. He however
did not find burnt hairs of the deceased.
P.W. 2 - Sweeti Kumari Gupta is the daughter of the deceased who
has stated that she had seen her father (appellant) pouring kerosene oil
which was kept in a black container over her mother and setting her
ablaze. Her entire body was burnt except her face. Her father used to
scold her mother and also used to beat her. She has stated that her father
used to demand money from her mother. Her mother was taken to
Noamundi hospital, where she died. She had informed about the
occurrence to her grand-mother.
In cross-examination she has deposed that her mother was
seasoning pulse when she was burnt by her father, at which point of time
she was studying. The house consisted of one room and in the morning
food was cooked near the door and in the evening, it was cooked inside.
Her aunts never tutored her prior to her evidence. She has deposed that
her father had not gone to the hospital. Her mother was taken to the
hospital by her grand-mother and maternal uncle. Neighbours had come
to the place of occurrence, but she had not informed them about the
occurrence. Her siblings had seen the occurrence and were crying.
P.W. 3 - Basanti Devi is the informant and the mother of the
deceased, who had feigned ignorance about how her daughter was
burnt. This witness has been declared hostile by the prosecution.
In her cross-examination, she has deposed that Sweeti Gupta (P.W.
2) had not disclosed to her anything. It is false to say that she had
disclosed to the police that Sweeti Gupta had told her that her father had
set ablaze her mother.
P.W. 4 -Babloo Sahay is the brother of the deceased who has stated
that Sweeti had disclosed that her mother had suffered burn injuries, but
she had not disclosed how she was burnt. This witness has also been
declared hostile by the prosecution.
P.W. 5 - Sacchidanand Sahay is the brother of the deceased who
has stated that he had gone along with his wife to the matrimonial house
of his sister, where he found her in a totally burnt condition. She was not
able to speak. The neighbours had disclosed that her father had burnt
her. This witness was also declared hostile by the prosecution.
In cross-examination, he has deposed that it is wrong to say that
Sweeti had disclosed that her mother was burnt by her father by pouring
kerosene oil.
P.W. 6 - Rajesh Kumar, is the Investigating Officer who has proved
the fard beyan which has been marked as Exhibit 4. He has described the
place of occurrence which is a one room house made of bricks and tiles
and which had two doors facing south west. From the place of
occurrence, he had seized a five litre plastic jerrycan in which 'Super
Lube' was written and from which the smell of kerosene oil was
emanating. He has proved the seizure list which has been marked as
Exhibit 6. He has recorded the re-statement of the informant as well as
the statement of the witnesses Santosh Kumar Sahay, Sacchidanand
Sahay, Babloo Sahay and Sweeti Kumari Gupta who all had supported
the prosecution case. The appellant was arrested and since he had some
burns and blisters in his body, he was sent for treatment to Referral
Hospital, Bada Jamda and the injury report was also received by him.
He had got the statement of Sweeti Kumari recorded under Section 164
Cr.P.C., obtained the post mortem report and on completion of
investigation, as per the directions of his superior authority, had
submitted charge-sheet under Section 498A/302 of I.P.C. against the
appellant. Basanti Devi, Babloo Sahay and Sacchidanand Sahay had
stated that Sweeti Kumari had disclosed that her mother was set ablaze.
In cross-examination, he has deposed that he has not produced the
plastic jerrycan in court.
P.W. 7 - Abhimanyu Kumar has stated that on 29.10.2007, he was
posted as a Judicial Magistrate at Porahat, Chaibasa and on that date, he
had recorded the statement of Sweeti Kumari under Section 164 Cr.P.C.
which has been proved by him and marked as Exhibit 8.
5. The statement of the appellant was recorded under
Section313 Cr.P.C. to which he has denied his role in the incident and
claimed himself to be innocent.
6. It has been submitted by Mr. A. K. Kashyap, learned senior
counsel for the appellant that P.W. 3, P.W. 4 and P.W. 5 who are the
mother and brothers of the deceased did not support the prosecution
case and were accordingly declared hostile by the prosecution. The
conviction of the appellant is based on the solitary evidence of the
daughter of the deceased who was examined as P.W. 2. Mr. Kashyap has
submitted that the siblings of P.W. 2 have not been examined by the
prosecution. Drawing the attention of the court to the post mortem
report, submission has been advanced that there was no smell of
kerosene oil detected in the body of the deceased and the post mortem
report also does not indicate of any other injury found on the person of
the deceased which further fortifies the case of the defence that the
deceased had died due to accidental burning. In fact the appellant had
also sustained burn injuries which can be construed to mean that while
trying to save his wife such injuries were suffered by him.
7. Mrs. Priya Shrestha, learned Special P. P. has submitted that
the evidence of a child witness can be the cause of conviction, provided it
is trustworthy and reliable. The evidence of P.W. 2 clearly reveals that
she had witnessed the appellant pouring kerosene oil upon her mother
and setting her ablaze. The defence has failed to elicit any contradictions
in the evidence of P.W. 2 which would render it doubtful.
8. We have heard the learned counsel for the appellant and
learned Special P. P. and have also perused the lower court records.
9. The conviction of the appellant is based on the testimony of
the daughter of the appellant, who has been examined as P.W. 2. Mr.
Kashyap, in course of his submission has referred to the case of
"Bhagwan Singh Vs. State of M. P." reported in (2003) 3 SCC 21, wherein
it has been held as follows:
"19. The law recognises the child as a competent witness
but a child particularly at such a tender age of six years, who
is unable to form a proper opinion about the nature of the
incident because of immaturity of understanding, is not
considered by the court to be a witness whose sole testimony
can be relied upon without other corroborative evidence. The
evidence of a child is required to be evaluated carefully
because he is an easy prey to tutoring. Therefore, always the
court looks for adequate corroboration from other evidence to
his testimony. (See Panchhi v. State of U.P.1)"
10. Mrs. Priya Shrestha, learned Special P. P. has relied on the
case of "Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat" reported in
(2004) 1 SCC 64 and she has pointly referred to the following paragraphs:
"6. Pivotal submission of the appellant is regarding
acceptability of PW 11's evidence. The age of the witness
during examination was taken to be about 10 years. The
Indian Evidence Act, 1872 (in short "the Evidence Act") does
not prescribe any particular age as a determinative factor to
treat a witness to be a competent one. On the contrary,
Section 118 of the Evidence Act envisages that all persons
shall be competent to testify, unless the court considers that
they are prevented from understanding the questions put to
them or from giving rational answers to these questions,
because of tender years, extreme old age, disease -- whether of
mind, or any other cause of the same kind. A child of tender
age can be allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto. This
position was concisely stated by Brewer, J. in Wheeler v.
United States2. The evidence of a child witness is not
required to be rejected per se, but the court as a rule of
prudence considers such evidence with close scrutiny and
only on being convinced about the quality thereof and
reliability can record conviction, based thereon. (See
Suryanarayana v. State of Karnataka3.)
7. In Dattu Ramrao Sakhare v. State of Maharashtra it
was held as follows : (SCC p. 343, para 5)
"A child witness if found competent to depose to the
facts and reliable one such evidence could be the basis
of conviction. 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 demeanour
must be like any other competent witness and there is
no likelihood of being tutored."
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.
8. The learned trial Judge has elaborately analysed the
evidence of the eyewitness. There is no reason as to why she
would falsely implicate the accused. Nothing has been
brought on record to show that she or her father had any
animosity so far as the accused is concerned. The prosecution
has been able to bring home its accusations beyond the
shadow of a doubt. Further, the trial court on careful
examination was satisfied about the child's capacity to
understand and to give rational answers. That being the
position, it cannot be said that the witness (PW 11) had no
maturity to understand the import of the questions put or to
give rational answers. This witness was cross-examined at
length and in spite thereof she had described in detail the
scenario implicating the accused to be the author of the crime.
The answers given by the child witness would go to show that
it was only repeating what somebody else asked her to say.
The mere fact that the child was asked to say about the
occurrence and as to what she saw, is no reason to jump to a
conclusion that it amounted to tutoring and that she was
deposing only as per tutoring what was not otherwise what
she actually saw. The learned counsel for the accused-
appellant has taken pains to point out certain discrepancies
which are of very minor and trifle nature and in no way affect
the credibility of the prosecution version.
9. The evidence of PW 11, the child witness has
credibility which reveals a truthful approach and her evidence
to put it mildly, has the ring of truth. There are no
exaggerations and she has stuck to her statement made
during investigation in all material particulars. That being
so, the trial court and the High Court were justified in
placing implicit reliance on her testimony. In addition, the
evidence to recovery and the report of the Forensic Science
Laboratory provide additional support to the prosecution
version."
Reference has also been made to the case of "Raj Kumar Vs. State
of Maharashtra" reported in (2009) 15 SCC 292, wherein it has been held
as follows:
"21. Incidentally, it may be mentioned that the testimony of
child witness Sangam recorded before the Sessions Court also
makes it more than clear that the appellant was the person
who had inflicted injury on the head of the deceased. Though
this child witness was subjected to searching cross-
examination, nothing could be brought on record so as to
impeach his credibility. The defence could not even prima
facie establish that the child witness had given a tutored
version of the incident before the Court. No major
contradictions and/or improvements with reference to his
earlier police statement could be brought to light at all. This
Court finds no reason to discredit the evidence of the child
witness."
11. Equipped with the law laid down with respect to the
credibility of a child witness and the trials and tribulations, it has to go
through, we now venture to consider the evidence of P.W. 2 in the
backdrop of other evidences adduced by the prosecution. P.W. 3 is the
mother of the deceased and P.W. 4 and P.W. 5 are her brothers. All these
witnesses have categorically denied to have any knowledge about the
manner in which the deceased died. It is no doubt true that the cause of
death as per the post mortem report has been noted as "hypovolumic
shock due to burn". No external injuries apart from burn injuries were
found on the person of the deceased. As per the P.W. 2, her mother was
seasoning pulse when the appellant had poured kerosene oil and set her
ablaze. This evidence of P.W. 2 seems to have been contradicted to a
certain extent as the doctor who had conducted autopsy had stated in his
evidence as P.W. 1 that he did not find the hairs of the deceased in a
burnt condition. P.W. 2 has also stated that her sisters and brothers were
all present and had witnessed the occurrence, but none had been
examined by the prosecution. As per P.W. 2, several persons of the
neighbourhood had assembled after the incident, but they have also not
been examined. The evidence of Investigating Officer (P.W. 6) reveals
that during investigation, P.W. 3, P.W. 4 and P.W. 5 had stated about the
disclosure made to him by P.W. 2 regarding the manner of occurrence,
but such disclosure seems to have been denuded by the defence by P.W.
3, P.W. 4 and P.W. 5. P.W. 6 in his examination-in-chief has stated about
the recovery of a jerrycan from which smell of kerosene oil was
emanating, but the jerrycan was never produced before the learned trial
court. In this context, if we go back to the evidence of P.W. 1, he
has stated that he has not mentioned the smell of kerosene oil coming
from the dead body. The prosecution therefore, has failed to substantiate
the evidence of P.W. 2 of the deceased being burnt by the
appellant by pouring kerosene oil over her. The prosecution also seems
to have been unable to explain the burn injuries found on the person of
the appellant as per the evidence of P.W. 6.
The conduct of P.W. 2 after the incident also raises suspicion as she
immediately ran to the house of her maternal uncle which takes about
half an hour to reach instead of informing the neighbours, who had
nonetheless appeared at the place of occurrence, but she had not
informed them. She had not stated about any attempts made by her to
save her mother.
12. P.W. 2 was aged about 9 years at the time of occurrence and
after the incident, she was residing with her maternal aunt. Her being
tutored cannot be ruled out as her evidence also seems to have been
recorded after about 2 years from the date of the incident. No doubt it is
true that conviction can be based on the solitary evidence of a child
witness, if it is trustworthy and credible, but as discussed above, there
are frailties in her evidence which cannot at all be relied upon for the
purposes of conviction of the appellant. The learned trial court has
overtly relied upon the evidence of P.W. 2 without considering the
contradictions which have surfaced in her evidence in the backdrop of
other evidences brought on record by the prosecution.
13. We therefore on the basis of the discussions made
hereinabove set aside the judgment of conviction dated 19.03.2016 and
order of sentence dated 22.03.2016 passed by Sri Manoj Kumar Singh,
learned Additional Sessions Judge II, West Singhbhum at Chaibasa in
Sessions Trial No. 313 of 2007. This appeal is allowed. Since the
appellant is in custody, he is directed to be released immediately and
forthwith, if not wanted in any other case.
(Rongon Mukhopadhyay, J.)
(Sanjay Prasad, J.)
Jharkhand High Court at Ranchi
The 5th day of February, 2024
R.Shekhar/NAFR/Cp.3
