Gian Singh vs State of Jammu & Kashmir

Virender Singh, J.—Appellant-Gian Singh S/o Isher Dass R/o Village Maitran Govindpura, Tehsil Ramban, District Doda (in short to be

referred to as 'accused') after suffering conviction under Sections 304 part-II and 201 of the Ranbir Penal Code with rigorous imprisonment for

five years and a fine of Rs. 1,000/- u/s 304 Part-II and two years imprisonment u/s 201 RPC vide impugned judgment dated 17.01.2002 of

Additional Session Judge, Ramban has filed the instant appeal. It needs to be mentioned here that his substantive sentence was suspended by this

Court in April, 2002 and thereafter when the main appeal was taken up for final hearing, it was brought to the notice of the Court that he is in

custody since March, 2006 in another case bearing F.I.R. No. 94/2004 registered under Sections 302/348/34 RPC in Police Station Ramban and

is facing trial in that case. According to Mr. Thakur, during the trial of the present case, he also remained in custody right from the date of his arrest

upto the stage of suspending his sentence. Therefore, virtually he has undergone his entire period of substantive sentence. He, however, assails the

impugned judgment on merits. Otherwise also after its admission, the entire case calls for its re-appreciation.

Deceased in this case is one Nasiboo W/o Sunder and mother of PW Mool Raj- the first informant. Date of occurrence is of 30.11.1999

whereas the matter was reported for the first time with the concerned Police Station, Ramban on 18.12.1999 by PW Mool Raj, resulting into

registration of F.I.R. bearing No. 117/1999 under Sections 302/201 RPC.

In brief, the case Of the prosecution as one finds from the allegations contained in the F.I.R. is that on 30.11.2002 Mst. Nasiboo alongwith her

grand daughter- Bimla Devi PW had come to Ramban for making certain purchases and when she got late, went to the house of the accused for

spending the overnight where the accused and his wife had a scuffle and the deceased intervened whereupon (he) accused gave beating to her.

Danda (stick) struck her head due to which she died. However, it was disclosed to the heirs of deceased that the accused was reconstructing his

house and a wooden beam (log) fell down due to which the deceased received an injury alongwith his wife and ultimately died. She was thereafter

cremated by her family members. The case further set up by Mool Raj is that PW Bimla Devi, grand daughter of the deceased, who was

accompanying her was threatened by the accused not to disclose the true version to any one and, therefore, believing the version of the accused,

dead body was cremated. But thereafter, they came to know that it was not an accidental death and Mst. Nasiboo was injured by the accused.

The police, thus, swung into action, recorded the statement of the witnesses mainly of the family members of the complainant, filed the challan

against the accused under Sections 302/201 RPC for which he was accordingly charged and now stands convicted and sentenced in the aforesaid

terms.

Heard Mr. O.P. Thakur, learned Counsel for the accused/Appellant and Mr. B.R. Chandan, learned Dy. AG. The trial Court record also

perused.

Mr. Thakur submits that the case of the prosecution is stumbling badly right from the very beginning. He submits that it is the prosecution case

itself that the heirs of the deceased were informed by the accused on the next date of occurrence itself narrating the entire incident, they were

convinced and cremated the dead body. Therefore, coming forward with a new story that too after the lapse of 18 days by ascribing a specific role

to accused of giving a danda blow on the head of the deceased is neither here nor there. Lodging of the report at belated stage itself demolishes the

entire case of the prosecution now coined up.

Dwelling upon his arguments, learned Counsel submits that the case of the prosecution is mainly hinging upon the statement of PW Bimla Devi,

the grand daughter of the deceased (daughter's daughter), who on the date of occurrence was accompanying the deceased. She went back to her

parents after the death. They have also stepped into the witness box and if the evidence of PW Bimla alongwith the statements of her parents

(PWs Bodh Raj and Mst. Chotu) and Mool Raj, the son of the deceased, is appreciated in its right perspective, one would find no difficulty in

dislodging her evidence being untrustworthy. Learned Counsel goes on to submit that no doubt conviction can be based even on the solitary

statement of a child witness provided it is trustworthy, but in the present case it calls for rejection out-rightly for many flaws, one main flaw is that

she kept mum for such a long period despite the fact that she was all through in the company of her parents. He then submits that Bodh Raj, the

father of Bimla Devi, says that his daughter (Bimla Devi) had told him about the occurrence after 12/13 days of the main occurrence. The

statement of mother of Bimla Devi is different on this aspect. However, within 10/12 days they had come to know of the occurrence, still they kept

quiet for another one week. From all this, Mr. Thakur wants to submit that a new story was projected subsequently and the first version as brought

forward by the accused disclosing the death being accidental, in fact, is the true factual position.

Mr. Thakur then submits that even otherwise the statement of Bimla Devi is just contrary to what is stated by PW Mool Raj, the first informant

or even her parents to whom she had allegedly disclosed the entire occurrence. In her substantive statement, she states that when she and her

maternal grandmother had stayed at the house of the accused, the accused had a fight with one Shadi Lal and everybody had gone out of the

house and thereafter the accused had entered the room and asked her grand mother as to what was the cause of said altercation, upon which she

expressed her ignorance and for this reason accused started beating her grandmother. When Mool Raj stepped into the witness box, he came

forward with a new story stating that his mother had stayed overnight in the house of the accused and on the third day he came to know that she

had some headache, for which she had taken two tablets which had reacted and when he went to Ramban, he was told that his mother had died

because of falling of the wooden beam. He states that at that time his sister's husband and one Khushal Chand, his sister's son, were also there.

When Bodh Raj stepped into the witness box, he slated that when he went to the house of the accused, the persons from the neighbourhood had

collected there and were saying that the deceased had died on account of fall of wooden beam on her. According to learned Counsel, Mst. Charu

Devi W/o Mool Raj had also stated in the same terms, but for adding another fact that when they went to the house of the accused they had seen

the wife of the accused having bandage on her forehead as she too had received injury because of the fall of the wooden beam. Taking me through

the relevant portion of the evidence of all the aforesaid witnesses, Mr. Thakur submits that they are not consistent on any specific stand and,

therefore, the evidence of the only star witness-Bimla Devi to the occurrence, which otherwise, is to be seen with care and caution, being a child

witness, looses its effect more so when the prosecution is not able to prove the death of the deceased being homicidal in nature in the absence of

any medical evidence on record.

On the basis of the aforesaid submissions, Mr. Thakur submits that prosecution has been miserably failed to prove its case to the hilt against the

accused and despite the fact that he has virtually served his entire substantive sentence by now, being in custody, may be on account of his

involvement in another case, deserves acquittal.

Mr. Chandan opposes the arguments advanced by Mr. Thakur, primarily on the ground that there was no reason with the prosecution to falsely

implicate the accused and, therefore, even if there is a delay in this case of more than two weeks in lodging the report with the police, that would

not be fatal. He submits that Bimla Devi was a child witness of tender age and was threatened not to disclose the incident to any body and this

appears to be the reason of delay. He then submits that even otherwise the accused is not denying the occurrence or the presence of the deceased

in his house and, therefore, he has no escape. Injury on the person of the wife of the accused is also an important factor that the occurrence had in

fact taken place. Therefore, after Mool Raj was informed by father of Bimla Devi about it, he lodged the report in the same manner. Minor

discrepancies in such like case are immaterial for disturbing the conviction and sentence. Therefore, the conviction as recorded by the trial Court,

according to Mr. Chandan, deserves to be upheld.

After appreciating the arguments advanced by either side and going through the relevant evidence on record minutely, in my considered view,

the prosecution has not been able to prove its case against the accused to the hilt.

Prompt lodging of report with the police has its value. If it is delayed one, chances of colourful version cannot be ruled out. No doubt, delay in

every case is not always fatal. But it depends upon the facts of each case. In the case on hand, in my considered view, the delay caused by the

complainant in lodging the report with the police is certainly fatal and it is staring at the case of the prosecution. Therefore, the entire evidence

produced by the prosecution, which otherwise is from the family members of the deceased is to be appreciated in its right perspective keeping this

aspect into consideration. No doubt, an attempt has been made by the complainant side to cover the delay, but in my view, it fails and the

explanation tendered does not appeal to the judicial conscience, which is an embodiment of reasoning.

The case of the prosecution, in fact, revolves around the evidence of PW Bimla Devi, the child and the star witness of the prosecution, as she

is one who had accompanied the deceased and stayed overnight in the house of the accused. No doubt, if a child witness is threatened, it certainly

leaves an impact upon his mind because of the tender age. But this again depends upon the facts of an individual case. In the present set of

circumstances, it is to be appreciated, whether the so called threat extended to Bimla would last for long 10-12 days after she had left the house of

the accused on the very next date and joined the company of her parents. PW Bodh Raj, father of Bimla Devi, states that after ten days of the

occurrence his daughter had disclosed about the actual occurrence to him. May be there is a discrepancy in this regard when one reads the

statement of Bodh Raj with the statement of his wife Chotu Devi as to who was first of all informed about the occurrence by Bimla Devi, but even

if that aspect is not given any importance, the fact remains that the parents of Bimla Devi came to know of the incident after 10/11 days of the

occurrence. This does not appeal to be true. Even if some latitude is given on this aspect to them, still Bodh Raj did not feel the necessity of

informing Mool Raj about this incident for another one week. If the delay is seen from that angle only, it proves to be fatal to the prosecution and it

can be safely said that this period has been consumed by the complainant side to manufacture a story of their choice.

I am appreciating the present case, yet from another angle. Admittedly, the dead body is cremated in the village of the deceased by her heirs

only. The case set up is that they had believed the version of the accused that the deceased had received injury because of the fall of the wooden

beam. Wife of the accused had also received injury in the occurrence as has come in the statement of prosecution witnesses and very specifically in

the statement of wife of Mool Raj, who had seen bandage on her forehead. May be that all through this period, the complainant side was under

suspicion as to whether the occurrence had actually taken place in the manner as suggested by accused or not. Therefore, even if there was any

suspicion lurking in the mind of the complainant side with regard to the manner of the actual occurrence, it can not take the place of proof for the

purpose of holding the accused guilty. It is settled that suspicion, however, grave it may be, it cannot take place of proof. The accused has

nowhere changed his statement and is sticking to his first version throughout.

Let us now examine the evidence of Bimla Devi, the only star witness of the occurrence, in the light of the aforementioned facts. The evidence

of other witnesses namely Mool Raj- the first informant and parents of Bimla Devi, would certainly not loose its importance in this context and the

flaws pointed out by Mr. Thakur, in my view, would carry weight, but primarily it is the evidence of Bimla, which would be a decisive factor.

No doubt, the Evidence Act does not prescribe any particular age as determinative factor to treat a witness to be a competent one. On the

contrary, the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from

understanding the questions because of tender age, extreme old age, disease whether of mind or any other case. A child of tender age can also be

allowed to testify if he had intellectual capacity to understand questions and give rational answers, which exercise undoubtedly is done in this case

by the learned trial Court and after putting certain questions to her, he has testified her to be a witness fit for deposing in the Court.

It is also settled that evidence of a child witness is not to be dejected perse, but at the same time the Court as a rule of prudence has to

consider the evidence of a child witness with close scrutiny and only on being convinced about the quality thereof and its reliability, the conviction

should be recorded. In other words, if a child witness is found to be competent to depose to the facts and reliable one, his evidence can be made

the basis of the conviction. It is also well settled that a child witness is a very dangerous witness as he does not know the sanctity of the oath and

even unable to tell the meaning of the truth. At the same time, a child witness can be under the influence of persons around him and he may speak

to their tune after being tutored. Chances of narrating the things taught to him in such like situation can not be ruled out. This all depends upon the

facts of an individual case.

Appreciating the evidence of PW Bimla Devi (the child witness) after applying the test of 'care and caution' in the factual backdrop at there is a

considerable delay in lodging the first information report of 18 days coupled with the fact that her evidence is contrary to what is stated by PW

Mool Raj, the son of the deceased, which set he police machinery into motion, it can safely be said that it is not free from doubt for the purpose of

holding conviction.

Another important feature, which cannot loose sight, is that Bimla Devi is introducing one Shadi Lal also. He does not figure in the list of

witnesses at all. Why Shadi Lal was introduced is a mystery. If something had really happened between Shadi Lal and the accused, then this fact

would have come in F.I.R., which is undoubtedly on the basis of information supplied by Bimla Devi only to her parents. If the prosecution has

made an attempt to introduce Shadi Lal for the first time in the Court wheln Bimla Devi stepped into the witness box, it would create doubt in the

mind of the Court. Therefore, appreciating her evidence from angles, she does not appeal to be a trustworthy witness and possibility of she being

tutored cannot be ruled out more so when she remained in custody of the complainant party from the date of occurrence itself till she was

examined in the Court. Therefore, it would be most unsafe to place reliance on her testimony. Once Bimla Devi is said to be unreliable witness, the

evidence of other witnesses from the complainant side would be of no help to prosecution for the purpose of bringing home the guilt of the

accused.

After churning the entire evidence in the aforesaid manner, the net result now surfaces is that the prosecution has miserably failed to prove its

case to prove both the charges against the accused beyond any shadow of reasonable doubt. Resultantly, the appeal on hand stands allowed and

the impugned judgment convicting him for the offences punishable under Sections 304 Part-II and 201 RPC is set aside. He stands acquitted of

both the charges and shall be released forthwith, if not required in other case.