Fauj Dar and Others vs State of U.P.

Pratyush Kumar, J.—1. Since both these appeals arise out of a common judgment and order dated 14.10.2004 passed in S.T. No. 25 of 2004 [State Vs. Daya Ram and others], they were heard together and are being disposed of by a common order.

Both these appeals, filed on behalf of the accused-appellants Fauj Dar and Gobari, are directed against the judgment and order dated 14.10.2004 passed by Additional Session Judge/Special Judge SC/ST Act, Sultanpur in S.T. No. 25 of 2004 [State Vs. Daya Ram and others] whereby the accused-appellants have been convicted and sentenced to undergo life imprisonment under Section 302 IPC with fine of Rs. 1000/- each and in default of payment of fine, they shall further undergo to three months simple imprisonment.

In these appeals, the prosecution case may be summarized as under:

That on 15.09.2003 at about 10.00 AM Mewa Lal gave a written report at police station Gosainganj, District Sultanpur, stating therein that he was village pradhan, in his village Smt. Anara Devi used to live with her two children alone in her house, her husband used to reside in Thailand. Faujdar, resident of another village and Gobari nephew of Daya Ram used to visit house of Daya Ram and with the help of Daya Ram they wanted to pressurize Smt. Anara Devi to have illicit relations with them. Smt. Anara Devi resisted them, in the intervening night of 14/15.09.2003 Smt. Anara Devi was sleeping in her house with her two minor children, namely Ravi Kumar, aged 8 years and Abi Kumar aged 4 years, Faujdar and Gobari entered into her house and knifed and murdered her.

On this chik FIR was scribed and case Crime No. 1187 of 2003 under Section 302 IPC and 3(2)(5) of SC/ST Act was registered and entered into report of the general diary. Investigation was entrusted to the then Circle Officer. After concluding the investigation charge-sheet was submitted against the present appellants as absconding accused and co-accused Daya Ram. After procuring the attendance of the present appellants, case was committed to the Court of Session, where they were charged under Section 302 IPC and co-accused Daya Ram under Section 302/34 IPC. All the accused denied the charge and claimed to be tried.

In order to prove the charges, besides other papers, prosecution has filed written report Ext. Ka-1, Postmortem report Ext. Ka-2, recovery memo Ext. Ka-3 and Ka-4, Ka-11 to Ka-11, site plan Ext. Ka-4, inquest report Ext. Ka-5, chik FIR Ext. Ka-15, reports of State Forensic Science Laboratory Ka-11 and Ka-18.

In the oral evidence, prosecution has examined seven witnesses.

After closing of prosecution evidence, statements of accused under Section 313 CrPC were recorded, no evidence in defence was given. After hearing the arguments the learned trial Judge acquitted the non-appellant Daya Ram (co-accused) and convicted the present appellants and sentenced them as above.

Feeling aggrieved these appeals have been preferred.

We have heard Sri Jitendra Singh, learned counsel for the appellants and Sri Sharad Dixit, learned Additional Government Advocate for the State-respondent and perused the record.

On behalf of the appellants, it has been argued that prosecution has failed to prove motive, there is only one eye witness Ravi Kumar P.W.2, who is a child witness, his testimony is not worthy of reliance as there was no light, accused were unknown to him, he is tutored witness, his testimony is full of contradictions''. It has been further argued that Abi Kumar, his younger brother was not examined, appellants were falsely implicated by the first informant, Mewa Lal P.W.1 due to enmity and FIR is ante timed.

On behalf of the State-respondent, Sri Sharad Dixit, learned Additional Government Advocate has repelled all these arguments and submitted that the eye witness account given by Ravi Kumar P.W.2 is worthy of reliance, motive has been proved, FIR was not ante timed, accused appellants remained absconding, their conduct subsequent show that they are guilty of offence.

Before entering into the merits of the appeal, we would like to recall the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222] whereby duties of the appellate court have been outlined. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

First, we would like to have a glance at the medical evidence, which consists of in the form of statement of Dr. Rajesh Kumar P.W.3 and postmortem report Ext. Ka-2. Though on behalf of the defence death of Smt. Anara Devi has not been disputed, even then as an Appellate Court we have duty to examine whether any offence was committed and if so by whom.

Dr. Rajesh Kumar P.W.3, has stated that on 16.09.2003 at 3.00 PM he had conducted the postmortem examination on the dead body of Smt. Anara Devi, aged 35 years. Her death had occurred one and half day before. Six ante mortem injuries were found on her person. According to the doctor death has occurred due to shock and haemorrhage as a result of ante mortem injuries. He has further opined that fatal ante mortem injuries were inflicted by sharp edged weapon like knife and he proved the postmortem report Ext. Ka-2 wherein the following ante mortem injuries were recorded:

Stab wound 3.0 cm x 2.0 cm x 6 cm deep present on right side perineal region just left to right upper part of vagina. On opening right side major artery and vessels were cut down. Clotted and semi clotted blood present.

Incised wound 2.0 cm x 0.5 cm on the right side buttock 12 cm below right iliac crest.

Incised wound 1.5 cm x 0.5 cm on right side thigh 5 cm above right side of injury No. 2. No tear.

Incised wound 2.0 cm x 0.5 cm on right thigh.

Incised wound on left thigh 2.0 cm x 1.0 cm (sic).

Abrasion over front of neck 3.0 cm x 3.0 cm. One abrasion over abdomen lower part 3.0 cm x 3.0 cm.

We have gone through the deposition of Dr. Rajesh Kumar P.W.3, he has been cross-examined on two points whether injury No. 1 could be inflicted on a lying person, whether after sustaining injuries deceased could have walked 5-10 steps. This witness replied to these questions saying that those were possible. He has been further examined about the time of the death and did not deny the suggestion that deceased could have died at 3.00 AM.

Except this suggestion other facts stated by him were not disputed on behalf of the defence. The testimony of this witness remained unshaken and duly corroborated by the postmortem report Ext. Ka-2 and relying thereon we hold that the above mentioned ante mortem injuries were inflicted to Smt. Anara Devi on the stated date and time by sharp edged weapon which resulted in her death.

Before dealing with the ocular version of the occurrence, we would like to refer the statement of first informant Mewa Lal P.W.1. Mewa Lal P.W. is not an eye witness. On the information received by him, he had lodged the FIR and proved it. During cross-examination he has testified that the husband of Smt. Anara Devi used to live in a foreign country, she was a chaste woman and he has further stated that accused Faujdar along with his family used to live in his village earlier and Gobari also lived in his village.

Anand Singh P.W.4, was the then Station Officer of the police station concerned, he executed the warrant of attachment of the properties of the present appellants and proved them Ext. Ka-3 and Ka-4. Dhirendra Singh P.W.5 brought the dead body of Smt. Anara Devi to the mortuary at Sultanpur. Ajay Pratap Singh P.W.6 is the Investigating Officer, who has given details of the steps taken during the investigation and proved prosecution papers.

The prosecution case is based on the sole testimony of Ravi Kumar P.W.2, who at the time of his examination was aged 9 years. He was examined by the trial Judge to assess his understanding and maturity, thereafter he was administered oath. He has unfolded the entire occurrence. According to him, his mother was murdered by Gobari, Faujdar and Daya Ram by knife. They entered into his house by jumping the wall and on the sound created by the accused appellants, he and his mother woke up at 11.00 PM and in the in the light of Dhibari (small kerosene oil lamp), he had seen the occurrence. According to him, accused had warned his mother that if she tried to run away again she would be killed, when his mother tried to run Gobari caught her and Faujdar inflicted the knife blows on her. He and his mother raised alarm but none came. After the occurrence accused by opening the door had departed from the scene.

Testimony of this witness has been impeached on various grounds by the learned counsel for the appellants. The first ground is that at the time of occurrence there was no source of light. In support of this argument, he has referred the statement of this witness in the examination-in-chief, this witness has claimed that he has seen the occurrence in the light of Dhibari. During cross-examination, he has stated that when going to sleep wick of Dhibari was lowered down so as to reduce the light. It is true that a person habitual of living in electricity light would not be able to see in the reduced light of Dhibari but a child who is habitual of passing his nights in the light of Dhibari would be able to see, and make out, what is happening in the room, therefore, we cannot accept the first ground of challenge.

The second ground is that the appellants were unknown to this witness and only through grand-daughter of Daya Ram this witness came to know about the names of appellants also cannot be accepted because this witness has claimed that he had seen the appellants before the occurrence in the house of Daya Ram acquitted accused. Further Mewa Lal P.W.1 has stated that earlier Faujdar used to live with his family in the same village where the occurrence took place and Gobari also lived there.

The third ground, that his testimony is full of contradictions, also cannot be sustained. The witness when examined was aged about nine years. He was cross-examined at length. It is natural that some inconsistency would occur during sustained cross-examination. Rather we think that the discrepancies, finding place in his statement would go to show that he has not been tutored by any one otherwise his testimony would have been parrot like. This takes care last but one ground of challenge urged on behalf of the appellants.

In the last doubt has been expressed about his truthfulness on the ground that the learned trial Judge disbelieved him about complicity of Daya Ram. This is a misconceived argument because this witness has assigned specific roles to the appellants and none to Daya Ram. Acquittal of Daya Ram cannot be taken by us to doubt veracity of his statement.

Before examining and evaluating the trustworthiness of his testimony, we would like to mention that there is no hard and fast rule that evidence of a child witness should be corroborated by some evidence. In reference to Section 118 of the Evidence Act the Hon''ble Apex Court in the case of State of M.P. Vs. Rakesh [2011 (74) ACC 193 SC] has observed in para-13 of the report, which on reproduction reads as under:

"....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 care fully 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."

We also find that the learned trial judge before administering oath to him has ensured that the witness has sufficient understanding to know that it is his duty to speak the truth. In this reference in the case of Golla Yelugu Govindu Vs. State of Andhra Pradesh [, AIR 2008 SC 1842] the Hon''ble Apex Court has held 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 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. 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."

Here it would be relevant to mention that conviction can be based safely on the evidence of a sole witness provided such witness is found reliable on the touchstone of credibility Ranjit Singh Vs. State of M.P. , AIR 2011 SC 255.

When subjected to touchstone credibility the testimony of this witness appears to be wholly reliable because he is natural and probable witness of the occurrence. He had opportunity to see the occurrence as he was sleeping in the same room where the deceased was sleeping. During fairly long cross-examination his testimony remained unshaken. He is a child, he has no enmity towards the appellants and no reason to tell any lies. With these observations, we conclude that he is fully trustworthy witness and after careful examination of his statement, it inspires our confidence.

Now the question remains that homicidal death of Smt. Anara Devi stands proved and complicity of both the appellants in such a brutal crime is also established, what was the reason for the appellants to commit such a crime?

Learned counsel for the appellants has argued that motive could not be established by the prosecution.

From the perusal of the statement of Ravi Kumar P.W.2, we find such motive has been proved beyond doubt. Though it was difficult for a child to say that the appellants wanted to have illicit relations with his mother but he has referred on earlier occasion where due atrocious behaviour of the appellants, his mother had left the house and taken shelter in the house of Bhagwat. During cross-examination it has also come out that his father used to live outside India. According to him, the appellants used to take food at the house of Daya Ram acquitted accused.

From the perusal of the record, it transpires that according to the prosecution motive for the crime was to compel the deceased to have illicit relations with the appellants. This fact is also substantiated from the seat of the injuries inflicted on the person of Smt. Anara Devi, thus, we find that the prosecution has successfully proved the motive against the appellants.

Non examination of Abi Kumar another son of the deceased though younger, is not very material because with the help of statement of Ravi Kumar P.W.2 the prosecution has successfully unfolded all the material facts touching the occurrence.

Mewa Lal P.W.1 has stated nothing against the present appellants, which rather shows that he favoured the appellants. With this, the reason for false implication goes out of consideration.

There is nothing on record to show FIR was anti timed, this ground of attack also cannot be accepted by us.

On behalf of the appellants no other argument has been advanced.

The arguments advanced before us are without substance. The impugned judgment is well reasoned, its findings are supported by cogent evidence and the learned trial Judge has not committed any legal error.

We for the reasons detailed herein before agree with the opinion of the learned trial Judge that charge of committing willful murder of Smt. Anara Devi punishable under Section 302 IPC stands proved against the present appellants and due to non-participation in the occurrence on the basis of acquittal of co-accused Daya Ram, they cannot be acquitted.

No interference is warranted by us with the impugned judgment. The appeals lack merit and are deserve to be dismissed. The conviction and sentence recorded by the learned trial Judge against the present appellants are hereby affirmed.

Accordingly, both the appeals are hereby dismissed.

Office is directed to communicate this order to the court concerned to ensure compliance and further sent back the lower court record.