Bashir vs State

Virender Singh, J.—After having suffered conviction for the charge of section 302 RPC for allegedly killing his wife Zeinab Bi and sentenced

for rigorous imprisonment for life vide impugned judgment dated 28.12.2012 of learned Principal Sessions Judge Poonch, appellant-Mohd Bashir

(for brevity 'accused') has preferred Cr. Appeal No. 02/2013. Since the sentence awarded to the accused is subject to confirmation of this Court

in terms of Section 374 of Code of Criminal Procedure, Confirmation No. 01/2013 is also tagged with the main conviction appeal.

Prosecution case in brief:

Accused had married to Zeinab Bi (hereinafter to BE referred to as 'deceased') 15 years ago and out of this wedlock, three children (all daughters)

were born. The relation between the accused and Zeinab Bi became strained resulting into litigation between them in the Court. For this reason, the

deceased was staying with her parents for the last about 4-5 months prior to the present occurrence. On 17.04.2007, the accused came to know

that the deceased had gone to the house of Shazad Ahmed, (husband of real sister of the deceased), he approached the deceased there, begged

pardon in front of her relatives, brought her back to his house and on the same night (night intervening 17/18 April, 2007), killed her and concealed

her dead body at an unknown place. The concerned Police (Police Station Gursai, District Poonch) received this information through reliable

source on 18.04.2007 at 9 p.m. (2100 hours) which resulted into registration of formal FIR No. 38/2007 under section 302 RPC whereupon

investigation of the present case started on 19.04.2007.

The accused was arrested on 19.04.2007 and while in custody, he suffered a disclosure statement to the effect that he had concealed the dead

body of the deceased in his land at Arikandi, beneath the fencing line of the field, pursuant thereto, it was recovered and identified by the family

members of the deceased. The place of recovery of the dead body was photographed in the presence of certain witnesses. Recovery memos were

prepared at the spot. Site plan of the occurrence was prepared by the Investigating Officer and during investigation, broken bangles, ear ring and

one clip were seized.

Weapon of offence i.e., two iron rods, one stone, one Lathi, nylon rope and blood stained chain were also recovered at the instance of the

accused. Blood stained clay and blood stained clothes of the deceased were also seized.

It revealed during investigation that when the accused was beating the deceased, his three daughters namely Shamnaz Kouser aged 12 years,

Iftnaz Kouser aged 9 years and Ishrat Naz aged 7 years, were there in the house in a separate room and during scuffle between the accused and

the deceased, Shamnaz Kouser-the eldest daughter, had received some injury, therefore, she was medically examined. The accused was also

medically examined. Statement of all the witnesses were recorded under Section 161 Cr.P.C.

It surfaced during investigation that the accused wanted to solemnize second marriage and therefore, he was beating the deceased on one

pretext or the other. He was also doubting her character and 4-5 months prior to the present occurrence, she was turned out of her matrimonial

home by the accused giving her severe beating, as such, she started residing at her parental house. During this period, the deceased had filed a

petition under section 488 Cr.P.C. for maintenance against the accused in the Court of Judicial Magistrate First Class, Mendhar in which on

05.04.2007, the Court had directed him to pay maintenance expenses to the deceased to the tune of Rs. 800/- per month. The next date before

the Court was 23.04.2007. The accused, thus, wanted to get rid off the deceased and when he came to know on 17.04.2007 that the deceased

has gone to the house of aforesaid Shazad Ahmed at Harni, he went there, pacified the deceased and on assurance of not torturing her in future

persuaded her to join his company and then on the same night killed her and concealed her dead body in his land adjoining to his house.

The investigation of the present case culminated into filing of the challan against the accused for facing trial for the offence punishable under

Section 302 RPC, for which he was charged also.

Out of the list of 29 prosecution witnesses attached with the challan, the prosecution has relied upon the following witnesses for the purposes of

proving the charge against the accused:-

I PW-Shamnaz Kouser

II PW-Mohd. Aslam

III PW-Mohd. Aziz

IV PW-Naseeb Ullah Khan

V PW-Said Ullah Khan

VI PW-Bagh Ali

VII PW-Lal Hussain

VIII PW-Mohd. Sadeeq

IX PW-Saidan Bi

X PW-Kalsoom Akhter

XI PW-Shazad Ahmad

XII PW-Mohd. Sharief

XIII PW-Dr. Zulifkar Ahmed

XIV PW-Gultaj Begum

XV PW-Bagh Hussain ASI.

We do not feel the necessity of describing the evidence of all the fifteen (15) witnesses in detail as it would be of no advantage for the reason

that some of the witnesses are from the same set, being the relatives of the deceased who have deposed about the strained relation between the

deceased and the accused which resulted into filing of maintenance petition under Section 488 Cr.P.C. in which maintenance at the rate of Rs. 800

per month was awarded in favour of the deceased few days prior to the occurrence. We, however, in brief will be referring to the main evidence

which unfolds the prosecution case against the accused and requires to be re-appreciated by us.

It needs to be mentioned here that after the occurrence, Pw-Shamnaz Kouser and her two real sisters namely Iftnaz Kouser and Ishrat Naz

were lodged in Nari Niketan as they had lost their mother and their father was taken into custody. They were brought from Nari Niketan only

before the Trial Court. The learned Trial Court put certain questions to all of them so as to ascertain, whether they were the competent witnesses

to unfold this prosecution story or not. With regard to Shamnaz Kouser, the learned Trial Court opined that she was a competent witness to unfold

the prosecution story whereas with regard to other two daughters of deceased namely Iftnaz Kouser and Ishrat Naz, it was observed that they

were incompetent witnesses, therefore, they were not examined. This is how only Shamnaz Kouser stepped into the witness box.

As stated above, Pw-Shamnaz Kouser is an eye witness to the occurrence and was present in the house when the accused was beating the

deceased. She stated that her father killed her mother with iron rod, spade and Lathi and when he was assaulting her, she and her two sisters were

watching the same. She then depicted the entire occurrence as to how the accused tied her mother's hands and feet with chain and rope and when

she asked the accused not to kill her mother, she was threatened by him and was asked to go to her room, failing which she would also be dealt

with in the same manner. She further stated that on the morning of next day, she enquired about her mother from the accused, upon which he

disclosed that she had gone to the house of one Saweena. She further stated that when the accused was killing her mother, she was unclothed at

that time. She is also a witness to the recovery of dead body and attesting witness to certain other seizure memos.

It is pertinent to mention here that subsequently an application was moved on behalf of the accused in Section 540 Cr.P.C. (State Code) for

recalling of Pw-Shamnaz Kouser for further cross examination on the ground that certain material questions could not be asked by the defence

counsel. However, the said application came to be dismissed by the Trial Court.

PW-Mohd. Aslam is the brother of the deceased. Lie talks about the maltreatment meted out to his sister and of the maintenance suit in which

Rs. 800/- per month was awarded in favour of the deceased. He further stated that on 17.04.2007, the deceased had gone to her sister's house at

Harni from where the accused persuaded her to accompany him and took her to his house and on the same night murdered her. He further stated

that on 18.04.2007, they enquired about the whereabouts of the deceased but she could not be traced and the accused confessed before the

police in his presence about the killing of the deceased and the place of concealment of the dead body. He is also attesting witness to the

disclosure statement of the accused and thereafter recovery of the dead body beneath the demarcated line of the field at his instance. He is also

witness to certain other seizure memos. Dead body of the deceased was also handed over to him after its post mortem.

PWs-Mohd. Aziz, Naseeb Ullah Khan and Said Ullah Khan are the attesting witnesses to the disclosure statement of the accused, pursuant to

which the weapon of offence i.e., iron rod, chain, Lathi and dead body were recovered.

PW-Kalsoom Akhter, the real sister of the deceased, is another important witness of the prosecution as on 17.04.2007 the deceased had

come to meet her as she was not feeling well where her husband was also there and in their presence the accused pacified the deceased and stated

that he would not quarrel with her in future and keep her with love and affection. The accused had taken the deceased along from their house and

thereafter she was killed by him on the same night.

PW-Shazad Ahmed is the husband of Pw-Kalsoom Akhter and he also toed the statement of his wife.

PW-Dr. Zulifkar Ahmed along with other board of doctors i.e., Dr. Bishan Singh and Dr. Anjum Ara conducted the post mortem on the dead

body of the deceased on 19.04.2007 and noticed as under:-

State of natural orifices:-

Eyes: Closed

Left ears shows: internal bleed,

Nostrils: Bilateral bleeding.

Special Marks: Bruises and teeth mark on inner side of lower lip, tongue bite present.

External and internal injuries:

Lacerated wound, over right temporal area measuring 2 x 1 x 1 cm with contused and irregular margins, stained with mud, clotted, blood

present around the wound, causing singing of hairs in the temporal region, underlying bone shows depressed fracture.

A punctured wound circular in shape, with rough contused margins measuring 1 x 1 x 2 cm in the left iliac fossa, clotted blood present around

the wound, wrists of both hands shows imprint abrasions measuring 1 cm in width all around the wrist. Left wrist also shows a punctured wound

measuring 1 x 1 x 1/2 cm with clotted, blood around.

Multiple imprint abrasions of different lengths but same width of 1 cm with charring of skin at impact site present all over the body suggestive

torture.

Finger imprints four on left side and one on right side around the mouth. Three finger imprints were present over the upper part of neck

anteriorly under lower jaw.

Imprint abrasions measuring 3-4 cm in width all around both thighs, Both ankle show imprint abrasions measuring 2 cm in width all around.

Head: Hairs show mud all over, lacerated wound over right temporal area measuring 2 x 1 x 1 cm with depressed fracture of underlying bone.

Membranes: On opening skull, membranes were contused and disrupted blood clots of about 50 ml was present beneath the inner table of skull,

Brain Substance: Cut surface of brain substance shows clotted blood in middle cranial fossa.

Thorax: Multiple imprint abrasions over chest and back, Larynx and, trachea filled with blood stained mucous and froth and lungs and pleura

shows multiple petechial hemorrhages.'

In the opinion of the doctors, the deceased had died of cardiopulmonary arrest following head injury, torture and smothering. However, to rule

out associated poisoning, stomach along with its contents, portion of liver and spleen and right kidney as Visceras were sent to the CFSL for

chemical analysis.

In his cross examination, Dr. Ahmed stated that the post mortem report was not the final one and it was subject to the final report of CFSL.

On the same day i.e., 19.04.2007, Dr. Zulifkar Ahmed also examined the accused and found the following injuries on his person:-

'Two number scratches over chest on left side and only on right side of chest near clavicles.

A scratch over lower chest on right side.

A scratch over lower leg anterior aspect of left leg and

A scratch over lower leg anterior aspect of right leg.'

Injuries were opined to be simple in nature and caused as a result of scuffle.

On the same day, Pw-Shamnaz Kouser daughter of the accused was also examined and on her person, the following injures were noticed:-

'A lathi mark on back, bluish in colour (on the back on left side) measuring about 10"" x 1, 1/2"". The injury is like a bluish bruise.

A bruise bluish in colour with swollen area on left buttocks measuring about 8"" x 1"" looks like a lathi mark.'

Injuries were declared simple in nature and caused by blunt weapon.

The police on 21.05.2007 had produced one stone, one stick and two iron rods before Pw-Dr. Zulifkar Ahmed for seeking his opinion about

the injuries received by the deceased with all these articles and he opined that the injury mentioned in the post mortem report could be possible

with the object shown to him. The certificate issued by him in this regard was also got exhibited during trial.

In his cross examination, Dr. Zulifkar Ahmed deposed that the mud was present on the hairs of the skull and there was no mud or any foreign

material on rest of the body or clothes. He further stated that he has not seen the hairs or skin parts or any foreign in the nail of the hands of

deceased. According to this witness, except injury No. 1, he did not find any injury causing fracture on the body of the deceased and that injury

No. 1 could be possible by a fall. He further stated that the post mortem prepared by him was not final one as it was subject to the final report of

CFSL.

PW-Bhag Hussain ASI is the witness to the disclosure statement of the accused with regard to the concealment of the dead body. That way he

is not a material witness and therefore, we do not feel the necessity of entering into more details with regard to his evidence.

The prosecution has not examined the Investigating Officer of this case.

This is mainly the prosecution evidence led against the accused during trial who, however, denied all the allegations levelled against him as one

finds from his statement recorded under Section 342 Cr.P.C. and projected his complete innocence stating that P.W-Shamnaz Kouser deposed

against him under the influence of her relatives from maternal side.

In his defence the accused has produced one Abdul Majid who stated that he is in the neighbourhood of the accused as his house is at the

distance of 80-90 yards from the accused. With regard to the occurrence, he stated that the deceased had gone to her parental house and used to

stay there and did not stay in the house of the accused. He further stated that on 19.04.2007 at about 8/9 a.m. he heard noise and on hearing the

noise he went at some distance from his Mohalla and saw that the relatives of the deceased had assembled at a place where the accused had also

come and thereafter police came on the spot and picked up the dead body of the deceased and took it to Mendhar. This witness further stated

that on 18.04.2007 he was called by one Mohd. Farooq to repair his house and the accused was also called by Mohd. Farooq and that the

accused came there between 3-4 p.m. and stayed there till 8 p.m. In fact, this witness made an attempt to show that the accused was not present

in the house on the date of occurrence. With regard to the date he appears to be somewhat confused.

The next defence witness is Mohd. Farooq who stated that on. 17.04.2007 he called the accused to repair his house and he remained there till

evening and on the next day also, he called accused to repair his house and he stayed there till 8 p.m. He offered meal to the accused who did not

take the same on the pretext that his daughters were alone in the house and thereafter he went to the house of the accused to provide meal to him

and after handing over the meal came back. This witness further stated that on 19.04.2007 at about 8 a.m. he heard that the dead body is lying on

the bank of river (Beela) and when they reached the spot, the relatives of the deceased were weeping and in the meantime, the accused also came

there who was beaten by the relatives of the deceased. He further stated that after 10-20 minutes, police came there and then the dead body was

taken to Mendhar. This witness further stated that on 17-18, he had not seen, the deceased in the house of the accused. The witness, in fact, tried

to dent the prosecution case with regard to the recovery of dead body of the deceased pursuant to the disclosure statement suffered by the

accused.

Heard Mr. Anmol Sharma, learned counsel for the accused and Mr. Ravinder Sharma, learned Additional Advocate General representing the

State.

Mr. Anmol submitted that the case of the prosecution as set up is inherently weak as the prosecution seeks conviction of the accused primarily

on the evidence of Pw-Shamnaz Kouser aged 12 years, a child witness, who happened to be in the house on the night of occurrence. He

submitted that it is very risky to rely upon a statement of a child witness.

Learned counsel submitted that not only the statement of Pw-Shamnaz Kouser is not getting any corroboration from other reliable source, it is

in indirect conflict with the medical evidence also. He submitted that Pw-Shamnaz Kouser has not explained in her statement that under what

circumstances she and the accused received injuries in the same occurrence or that how the doctor noticed that the deceased was wearing all the

clothes whereas Shamnaz Kouser stated that her mother was unclothed when the accused was beating her and these vital flaws make the

testimony of this child witness unreliable, therefore, it would not be safe to believe the statement of Pw-Shamnaz Kouser.

In support of his aforesaid submissions, Mr. Anmol has relied upon the following judgments of Hon'ble Supreme Court:-

i) Panchhi and others Vs. State of UP,

ii) Bhagwan Singh and Others Vs. State of M.P.,

Mr. Anmol Sharma then submitted that the Trial Court has erred in convicting the accused on the basis of incomplete medical evidence as Pw-

Dr. Zulifkar Ahmed admitted in his testimony that the final opinion could be given only after the report of 'Viscera' from the CFSL and in the

present case Viscera report has not been placed on record.

Learned counsel further submitted that otherwise also the conviction of the accused is based on very brittle and weak evidence. He submitted

that as per the prosecution evidence available on record the deceased was allegedly buried in the field by the accused, whereas Dr. Zulifkar

Ahmed deposed that no mud was found on the clothes the wound of the deceased and some mud was noticed by him on the hairs of skull of the

deceased. According to the learned counsel, this creates doubt about the very recovery of the dead body from the fields of the accused.

Mr. Sharma then submitted that even otherwise, the statement of the accused purported to have been recorded under Section 27 of the Indian

Evidence Act which led to the recovery of dead body appears to be farce as this exercise is shown to have been carried put in the presence of

close relatives of the deceased and no independent person joined.

On the strength of aforesaid submissions, Mr. Anmol Sharma seeks acquittal of the accused for the charge of Section 302 RPC stating that it is

not proved to the hilt.

In rebuttal, Mr. Ravinder Sharma, learned Additional Advocate General, submitted that there appears to be no reason to disbelieve the

statement of a child witness who is none else but the daughter of the accused only and therefore, her presence at the time of occurrence in the

house of the accused cannot be doubted. He submitted that after the death of her mother and the arrest of her father (accused) Pw-Shamnaz

Kouser was staying in Nari Niketan and when she stepped into the witness box, she was brought from Nari Niketan only, as such, no one had

access to tutor the witness against the accused who otherwise has unfolded the prosecution case in a natural way. Learned State counsel submitted

that may be certain discrepancies have crept in the statement of this witness but in totality her evidence appears to be the most truthful. He

submitted that the other planks of evidence including the recovery of the dead body at the instance of the accused are also pointing towards the

guilt of the accused who certainly had motive to eliminate the deceased and the recent one was that he was directed to pay maintenance to the tune

of Rs. 800/- per month to the deceased. He, thus, prayed for upholding the impugned judgment of conviction and sentence.

What is worth noticing in this case is that three main planks of evidence are pointing towards the guilt of the accused; firstly the evidence of

Pw-Shamnaz Kouser, the daughter of the accused and the deceased who is a child witness and was present at the time of occurrence, secondly

the recovery of the dead body from the fields of the accused only pursuant to the disclosure statement suffered by him and thirdly the motive as

projected by the relatives of the deceased. The other circumstances are the attending circumstances.

Let us first of all advert to the evidence of Pw-Shamnaz Kouser, the child witness and the only eye witness to the occurrence.

The Indian 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 the questions, because of tender year, 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/she has intellectual capacity to

understand questions and give rational answers thereto. Therefore, the evidence of a child witness is not required to be rejected per se, but the

Court as a rule of prudence should consider such evidence with close scrutiny and only on being convinced about the quality thereof and reliability

can record conviction, based thereon.

In case titled Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, , it was held as follows:-

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 precautions 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.

Reference in this regard can also be had from another Apex Court judgment in case titled Suryanarayana Vs. State of Karnataka, .

It is also held that the evidence of a child witness must find adequate corroboration before it is relied upon but it is more a rule of practical

wisdom than of law and this all depends oil the facts of each case.

At the time of occurrence, Pw-Shamnaz Kouser along with her two younger sisters was very much present in the house of the accused as all

the three daughters were in the another room. When she saw her father (accused) assaulting her mother and tied her hands and feet with chain and

rope, she being the eldest daughter instantly reacted to the situation and asked the accused not to assault her mother but she was threatened by him

who asked her to go to the room failing which she was also to be dealt with in the same manner. She is categoric in saying that on the next day

morning when she enquired about her mother from accused, he told her that she had gone to the house of her aunt.

From the evidence of Pw-Shamnaz Kouser, one can very comfortably make out that she unfolded the present occurrence quite rationally. Her

presence, at least, at the time of occurrence cannot be doubted and therefore, she could very well see her father assaulting her mother. In. her

cross examination, Pw-Shamnaz Kouser categorically stated that she had come from Nari Nike tan to depose against the accused. She also knew

this fact that her mother had filed a petition against the accused for maintenance in the Court at Mendhar but she was not aware of any

maintenance order passed against the accused.

Much has been said by Mr. Anmol Sharma to dislodge the statement of Shamnaz Kouser staring that her evidence is not getting any

corroboration from independent source. We are not in agreement with him as in the present set of circumstances, it is only Pw-Shamnaz Kouser

who could see the occurrence and none else and therefore, there could not possibly be any corroboration by way of any other direct evidence to

her statement. As stated above, her two real sisters, who were also present in the house, have been held to be incompetent witnesses by the

learned Trial Court on account of their immaturity of understanding.

Another attempt made by learned counsel to see Pw-Shamnaz's evidence with an eye of doubt on the ground that when she stepped into the

witness box, she stated that when her mother was being assaulted she was unclothed but when the dead body was recovered, the deceased was

having all the clothes on her body. Even this limb of argument, in our considered view, would not create any doubt vis-a-vis the presence of Pw-

Shamnaz Kouser at the time of occurrence for the reason that whatever she was describing before the Court was with regard to a fact noticed by

her for sometime, when she saw the accused assaulting the deceased and thereafter she went to her room and when got up in the morning she was

told that her mother had gone to meet her aunty. In between what happened, she could not see. It appears that after killing the deceased, the

accused in order to conceal the dead body put the clothes on the body of the deceased and then during night hours concealed it in his fields. This is

how when the post mortem was conducted by Dr. Zulifkar Ahmed, he noticed that the deceased was wearing all the clothes on her body.

We are also conscious of the fact that as per the medical evidence available on record, Pw-Shamnaz Kouser and the accused had also

received some injuries which are simple in nature and Mr. Anmol Sharma, learned counsel for the accused, tried to make an attempt to disbelieve

Pw-Shamnaz Kouser on this count also. What appears to us in that when the accused and the deceased were having a scuffle and Pw-Shamnaz

Kouser saw her mother being assaulted by the accused, she intervened which was but natural and in this process, she might have received some

simple bruises on the back of her body which are possible by lathi as the accused was having lathi also as stated by her. These bruises were bluish

in colour as is clear from the medical evidence, therefore co-relate with the time of occurrence. When Pw-Shamnaz Kouser stepped into the

witness box, it just went out of her mind to describe the injury on her person. This fact, rather proves her presence at the time occurrence. It is also

quite possible that the accused might have received one or two simple injuries while having scuffle with the deceased. In this backdrop of facts,

non-mentioning of injuries on her person or on the person of the accused by Pw-Shamnaz Kouser does not make her presence doubtful at the time

of occurrence or to say that her statement runs counter to the medical evidence.

Another fact which strengthens the statement of Pw-Shamnaz Kouser and rules out the possibility of tutoring her is that after the death of her

mother and the arrest of her father (accused) she was staying in Nari Niketan and was brought from there only to depose before the Court.

Therefore, there was no easy access of anyone much less from the maternal side of the deceased to tutor this witness. We do find certain

discrepancies in her statement but one material fact which cannot escape the notice of the Court is that she could see the actual occurrence for

some time only and thereafter, threatened by the accused and then she went back to her room. In our considered view, Pw-Shamnaz Kouser has

given true account of the occurrence as to what was actually seen by her on the fateful night without there been any tinge of tutoring from any

source. We, thus, hold her to be a reliable eye witness to the occurrence.

In Panchhi's case (Supra) the judgment relied by Mr. Anmol Sharma, learned counsel for the appellant, the Apex Court while maintaining the

conviction of the accused already recorded by the Trial Court and the High Court, rather believed the evidence of child witness. In the aforesaid

case, it was contended on behalf of the accused that it was risky to place reliance on the evidence of child witness but their lordships did not

subscribe to the view that the evidence of a child witness would always stand stigmatic. 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 and the law is that the evidence of a child witness must be evaluated more carefully and

with great circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.

We have applied the said yardstick in the present case and held that Shamnaz Kouser is not a tutored witness.

In Bhagwan Singh's case (Supra) neither the evidence of a child witness nor extra judicial confession made by the accused was held to be

reliable by the Trial Court. Even the recovery of the certain articles of the deceased on the alleged information given by the accused was also taken

to be a weak piece of evidence. However, the acquittal earned by the accused was disturbed by the High Court believing the sole testimony of the

eye witness and brushing aside the other planks of evidence. It is in this context, the evidence of a child witness was re-appreciated by the Hon'ble

Supreme Court and it was held that the evidence of a child witness was suffering from serious infirmity due to omission of the prosecution in not

holding the test identification parade and not examining one of the persons to whom the child witness had met after the incident. In the said case,

the child witness was of the age of six year who was unable to form proper information about the nature of the incident because of the immaturity

of understanding. It is in these circumstances, the Hon'ble Supreme Court held that the evidence of a child witness was required to be evaluated

carefully because the witness was easy prey to tutoring, therefore, adequate corroboration from other evidence was required. In the case on hand,

the facts are altogether different and therefore, the said judgment is distinguishable on facts from the one on hand.

So far as the motive is concerned, we have a complete set of evidence from the family of the deceased who are very categoric in saying that

the accused used to maltreat the deceased and that the deceased had also filed a maintenance petition against the accused in which maintenance

amount was also awarded in favour of the deceased few days prior to the present occurrence.

Another material evidence available on record is the evidence of the real sister of the deceased and her husband as the deceased had come to

see her sister on 17.04.2007 as she was not feeling well where the accused also lauded, begged pardon in front of them saying that he would not

quarrel with the deceased and keep her with love and affection and thereafter, took her along. This all happened on 17.04.2007 and on the same

night, the accused killed the deceased. It is but natural that the deceased who, no doubt was constrained to file a petition under Section 488

Cr.P.C. at one stage and got an order of maintenance in her favour never wanted to finish the ties with the accused knowing very well that she had

three daughters who were to be looked after and for this reason, she, on the assurance of the accused, agreed to go along with him without

knowing that she would fall prey at the hands of the accused on the same night. No-doubt the accused made an attempt to show that the deceased

was not at his house on the night of 17/18 April, 2007 by producing two defence witnesses, but in our view their evidence is self contradictory and

does not help the accused at all.

Third vital piece of evidence is the recovery of the dead body at the instance of the accused pursuant to the disclosure statement suffered by

him. From the evidence available on record, it is clear that the place of concealment of the dead body is the fields of the accused, only, and this

important aspect cannot escape the notice of the Court. The discovery of a fact is direct outcome of the information supplied by the accused and it

relates to the commission of the offence also. Learned counsel for the appellant wanted us to disbelieve the disclosure statement made by the

accused, pursuant thereto the dead body was recovered from his fields on the ground that the attesting witness to the disclosure statement or even

to the seizure memo of the dead body are from the relation of the deceased (maternal side) but this fact by itself would not create any doubt in our

mind vis-a-vis the recovery of the dead body at the instance of the accused when we appreciate the prosecution case in its totality.

In order to create doubt with regard to the recovery of the dead body from the fields of the accused, learned counsel for the accused

vehemently argued that only the hair on the skull were having mud whereas no mud was noticed on any other part of the body of the deceased by

the doctor, who conducted the autopsy and this shows that the dead body was not recovered in the manner it is shown to have been recovered

from the fields of the accused. We are not inclined to accept the argument advanced by learned counsel for the reason that the dead body, when,

recovered, was lying beneath earthen material and this appears to be the reason that some mud got entangled into the hair of the skull and rest of

the body was not having any dry mud on it as noticed by doctor of autopsy. We are conscious of the fact that the accused has also made an

attempt to disprove the recovery of dead body by producing some defence evidence, but of no advantage to him. In our considered view, the

prosecution has been able to prove the recovery of the dead body from the fields of the accused only beyond an)' reasonable doubt.

Another argument advanced by Mr. Anmol Sharma that the conviction of the accused cannot be based on incomplete medical evidence is also

not acceptable to us as according to the opinion of the board of doctors, the deceased had died of cardiopulmonary arrest following head injury,

torture and smothering. What is noticeable from the post mortem report is that there is a lacerated wound over right temporal area with depressed

fracture of underline bone and surface of the brain substance showed clotted blood in middle cranial fossa. There is otherwise no dearth of injuries

on the person of the deceased. It is, in order to rule out the case of poisoning, Viscera was sent to CFSL for chemical analysis and this is how the

final opinion was withheld whereas it was not at all a suspected case of poisoning. No doubt CFSL report is not available on record and no effort

has also made by the prosecution to get it placed on record during the trial, but in our view, even in the absence of the said report, the prosecution

has been able to prove that the deceased died because of the other injuries noticed on her person especially the head injury resulting into

depressed fracture. We, however, show our anguish, the manner in which the Public Prosecutor has conducted the trial. He should have taken pain

to get the CFSL report for placing it on record during the trial so that it could be shown to the doctor who had conducted the autopsy on the dead

body. What looks odd to us is that even the learned Trial Court has also overlooked this aspect.

We are also conscious of the fact that even the Investigating Officer of the present case has not been examined by the prosecution during the

trial and all the main recoveries have been effected in his presence but his non-examination would not dent the prosecution case once we are

believing the evidence of Pw-Shamnaz Kouser, the daughter of the accused and the deceased and the only eye witness to the occurrence

considering her to be the most truthful witness. That by itself is a sufficient piece of evidence pointing towards the guilt of the accused coupled with

other attending circumstances.

After re-appreciating the prosecution case in its right perspective, we are of the considered 'view that it is the accused only who killed his wife

in his house on the night intervening 17-18 of April, 2007 and thereafter concealed her dead body in his fields. The prosecution has been able to

prove the charge of Section 302 RPC against the accused beyond any shadow of doubt. The conviction and the sentence as already recorded by

the Trial Court vide impugned judgment dated 28.12.2012, thus, deserves to be upheld. Ordered accordingly.

Resultantly, Criminal Appeal No. 02/2013 filed by the appellant/accused is hereby dismissed. Confirmation No. 01/2013 is also answered

accordingly.

Registrar Judicial of this wing of the High Court is directed to certify the judgment to the Trial Court in terms of Section 425 Cr.P.C. (State

code). The appellant, who is confined in Jail, be also informed of the dismissal of the appeal filed by him and Confirmation of the life sentence

imposed upon him through Jail Superintendent concerned. Trial Court record be also sent back to the Court concerned without any delay.