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Judgment
S.K. Gangele, J
Appellant has filed this appeal against the judgment dated 16.09.2008 passed in Sessions Trial No.01/2008, by the Court of VIIth Addl. Sessions
Judge, Bhopal. Trial Court held the appellant guilty for commission of offence punishable under Section 302 of IPC and awarded a sentence for Life.
Prosecution story, in brief is that, on 17.09.2007 at 11 O’clock in the night, appellant came into the house of Rani @ Lalita [since deceased]. He
asked from the deceased that whether she would marry with him or not. Deceased replied negative and on that, appellant got annoyed. He pushed the
deceased and inflicted injuries by knife. Incident was witnessed by (PW-3) Janu @ Ayush, son of the deceased. Appellant had run away from the
place. Thereafter, son of the deceased (PW-3) told the incident to PW-1 and PW-2. They came to the house of deceased. Both appellant and
deceased were working in a Hotel. Appellant was working as Waiter. (PW-3) son of the deceased lodged the report at the police Station. Police
conducted investigation and filed charge-sheet. Appellant abjured his guilt and pleaded innocence. Trial Court, after trial held the appellant guilty for
the offence of murder and awarded sentence as mentioned above.
Learned counsel for the appellant has submitted that the conviction of the appellant is based on the basis of evidence of child witness (PW-3) i.e.
son of the deceased. Evidence is not sufficient to held the appellant guilty beyond reasonable doubt.
Learned counsel for the State has submitted that there is sufficient evidence against the appellant. Seizure of articles and ocular evidence has been
corroborated by medical evidence. As per FSL report, blood was found on the articles seized from the possession of appellant hence, the trial Court
has rightly convicted the appellant and awarded proper sentence.
(PW-3) Janu @ Aayush is the son of deceased. He is child witness. He deposed that deceased was his mother. Appellant came into the house, I
heard the cry of mother then I wake up. I had witnessed that appellant had been inflicting blows on my mother by knife. Thereafter, he left the room.
Subsequently, I called Bahadur uncle and Hiralal. Hiralal, informed the police. My mother was working in a hotel. Appellant was working in the hotel.
The witness also identified the appellant in the dock.
(PW-1) Hiralal, deposed that we were watching TV in the night at 11 O’ clock in the house. Jaanu @ Aayush (PW-3) came there. There was
blood on his cloths. He told me that appellant had killed deceased by knife. Thereafter, other persons came there. He went to the house of appellant
and deceased was laying and blood was oozing. Bahadur @ Nepali, Khilansingh and I went to Police Station Jahangirabad. Police prepared spot map
Ex.P.1 and seized plain earth, red earth, mobile phone and bed sheet in which blood stains were there vide seizure memo Ex.P.2, I singed the
documents.
(PW-2) Kewalsingh Thapa, deposed that Janu was crying and told me that appellant had killed his mother. Thereafter, other persons reached at the
place of incident.
(PW-4) Babulal deposed that Ayush (PW-3) son of the deceased told me that appellant had killed the deceased. Both appellant and deceased were
working in a hotel. Police seized bed sheet vide seizure memo Ex.P.2. Police also prepared Panchnama of the dead body of the deceased Ex.P.5. I
signed the same.
(PW-5) Umesh Shukla, is the witness of seizure. He deposed that appellant told the police that he had killed deceased by knife. On his
memorandum (Ex-P-8), a knife was seized vide seizure memo Ex.P-10. Police also seized black jeans paint, blue T Shirt and mobile vide seizure
memo Ex.P-9. There was blood stains on the cloths.
(PW-7) Dr. Geeta Rani Gupta, performed the post-mortem of the deceased. She deposed that I noticed following injuries on the person of the
body of the deceased.
“1& dVk gqvk ?kko cka;h vxz Hkqtk ds QysDlj ¼vkxs dh rjQ½ Hkkx ij Fkk bldk vkdkj 3-5 xqf.kr 0-8 ls-eh- FkkA
2& dVk gqvk ?kko cka;h vxzHkqtk ds ,DVsalj ¼ihNs dh rjQ½ ftldk vkdkj 3-5 xq.k 0-5 ls-eh- FkkA blds ckn yhfu;j bulkbt ds ;i esa Fkk ftldh
yEckbZ 4 ls-eh- FkhA
3& ?kksik gqvk ?kko cka;h rjQ psgjs ij FkkA bldk vkdkj 3 xq.kk 0-5 ls- eh- FkkA blds Vsª dh yackbZ 7 ls-eh- Fkha bl pksV ds varxZr psgjs dh
eka’k isf’k;ka vksj eafMcy dVk FkkA
4& ?kksik gqvk ?kko cka;h rjQ psgjs ij Fkk ftldk vkdkj 2-5 xq.kk 0-5 ls-eh- FkkA ;g vka[k ds 'kkWfdV esa x;k FkkA Vsd dh yackbZ 3-5 ls-eh- FkhA
5& ?kksik gqvk ?kko ck;h rjQ xnZu ij Fkk bldk vkdkj 3-5 xq.kk 0-8 ls- eh- Fkk ;g xnZu dh eka’k isf’k;ksa dks dkVrk gqvk 'okl uyh rd x;k Fkk
blds Vªsd dh yEckbZ 6 ls-eh- FkhaA
6& ?kksik gqvk ?kko cka;h rjQ psgjs dks dkVrk gqvk lcesfMxqyj XySaM esa x;k FkkA Vsªd dh yEckbZ 8 ls-eh- FkhaA
7& ?kksik gqvk ?kko cka;h da/ks ij Fkk ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g lhus dh eka’k isf’k;ksa rd x;k FkkA
8& ?kksik gqvk ?kko cka;h rjQ lhus ij FkkA ftldk vkdkj 3-5 xq.kk 0-8 lseh- FkkAÂ Â
9& ?kksik gqvk ?kko ck;h rjQ lhus ij FkkA bldk vkdkj 3-5 xq.kk 0-8 lseh- FkkA ;g Nvos baVjiksLVj Lis’k esa Nvyh iksLVy dkVZy ,t dks dkVrs
gq, isV esa x;k FkkA Vsªd dh yEckbZ 8 ls-eh- FkhA
10& ?kksik gqvk ?kko nkfguh rjQ xnZu ij FkhA ftldk vkdkj 3-5 xq.kk 0- 8 lseh- FkkA ;g ?kko lhus ds vanj x;k Fkk vkSj v;ksVk ds vkp dks dkVk FkkA
Vsªd dh yEckbZ 7 ls-eh- FkhA
11& ?kksik gqvk ?kko ihB ij baVjLisdqyj Hkkx ij rhljs FkkWfjfld cfVZdjk ds yscy ij nkfguh rjQ FkkA ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g nkfgus
QsQM+s ds fefMy yksc esa x;k Fkk Vsªd dh yEckbZ 7 ls-eh- FkhA
12& ?kksik gqvk ?kko ihB ij nk;h rjQ FkkA tks fd pksV ua- 11 ls 8 ls-eh-uhps FkkA ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g nkfgus QsQMs ds fupys
yksc rd ikapos bVjdksLVy Lisl ls gksrk gqvk x;k FkkA Vsªd dh yEckbZ 7 ls-eh- FkhA
13& ?kksik gqvk ?kko nkfguh rjQ ihB ij FkkA tks fd pksV uacj 12 ls 1-5 ls-eh- uhps FkkA bldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g lkros o vkBos
FkkWfjfld cfVZcjk ds chp esa x;k FkkA Vsªd dh yEckbZ 3-5 ls-eh- FkhA
14& pkj ?kksis gq, ?kko ihB ij 'kjhj ds e/; js[kk ds nksuks rjQ Fks tks fd pksV uacj 13 ls 2-5 ls-eh- uhps Fks budk {ks=Qy 12 xq.kk 8 ls-eh- vkM+s esa
FkkA ;g lHkh ;d`r esa x;s Fks vkSj Vsªd dh yEckbZ 3-5 xq.kk 5 ls-eh- FkhA 15& ?kksik gqvk ?kko pksV uacj 14 ls 1-5 ls-eh- uhps FkkA ;g 'kjhj dh
e/; js[kk ds nksuksa rjQ Fkk ijUrq nkfguh rjQ T;knk FkkA bldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g isu fdz;k esa x;k FkkA Vsªd dh yEckbZ 7 ls-eh-
FkhA 16& ?kksik gqvk ?kko pksV uacj 15 ds 3 ls-eh- uhps vkSj 'kjhj dh e/; js[kk ds nkfguh rjQ FkkA ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g nlos
baVjdksLVy Lisl ls gksrk gqvk ck;h xqnsZ rd x;k FkkA Vsªd dh yEckbZ 7 ls- eh- FkhAÂ
17& ?kksik gqvk ?kko cka;h rjQ ihB ij Fkk tks fd pksV ua- 16 ds ,d ls- eh- Ã…ij Fkk bldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g nlos baVjdksLVy Lisl ls
gksrk gqvk ck;h xqnsZ rd x;k FkkA Vsªd dh yEckbZ 7 ls-eh- FkhA
18& ?kksik gqvk ?kko cka;h rjQ yacj Hkkx ij Fkk tks fd pksV uEcj 17 ds 7 ls-eh- uhps Fkk ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g nlos baVjdksLVy
Lisl ls gksrk gqvk ck;h xqnsZ rd x;k FkkA Vsªd dh yEckbZ 7 ls-eh- FkhA
19& ?kksik gqvk ?kko nkfguh rjQ yacj Hkkx ij Fkk ftldk vkdkj 3-5 xq.kk 0-8 ls-eh- FkkA ;g yxHkx [kM+s esa FkkA ;g 'okal elYl rd x;k FkkA Vsªd
dh yEckbZ 7 ls-eh- FkhA^^
Injuries were caused by sharp edged weapon. Injuries could be caused by knife which was seized from the possession of appellant. Deceased was
died due to aforesaid injuries.
(PW-8) Pawan Mishra, is the Investigating Officer. He deposed that he received information on wireless that one lady was killed. Thereafter, I
reached on the spot. Son of the deceased (PW-3) Janu @ Aayush was there. Other persons were also there. I recorded Dehati Nalishi Ex-P-6 and I
signed the same. I prepared spot map Ex.P.1. I also seized plain earth, red earth, bed sheet and mobile vide seizure memo Ex.P-2. I recorded
statements of the witnesses on 18.09.2007. Appellant was arrested on 18.09.2007 vide arrest memo Ex.P-14, on his memorandum, Black [Jeans] full
paint, Half shirt and mobile phone was seized vide seizure memo Ex.P.7. Blood stains were found on the cloths. Knife was also seized vide seizure
memo Ex.P.10.
(PW-3) is eye witness of the incident. He is the child witness. Apex Court in the case of Shivasharanappa and others vs. State of Karnataka
reported in 2013 (5) SCC 705, has held as under about the testimony of child witness.
“12. At this juncture, we may refer with profit to the dictum in Shivaji Sahebrao Bobade and another v. State of Maharashtra[1], wherein a three-
Judge Bench has opined thus: -
 “5.....there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded
and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence
attributed to the accused having been converted into an acquittal the homage of our jurisprudence owes to individual liberty constrains the higher court
not to upset the finding without very convincing reasons and comprehensive consideration.â€
Similar view has been expressed in Girija Prasad (dead) by LRs. v. State of M. P.[2] and State of Goa v. Sanjay Thakran[3].
From the aforesaid authorities, it is clear as day that while dealing with an appeal against acquittal, the High Court has a duty to scrutinize the
evidence and sometimes it is an obligation on the part of the High Court to do so. The power is not curtailed by any of the provisions of the Code of
Criminal Procedure. It is also worthy to note that while reappreciating and reconsidering the evidence upon which the order of acquittal is based,
certain other principles pertaining to other facets are to be borne in mind. The said aspects have been encapsuled in Chandrappa v. State of
Karnataka[4] as under: -
“42……...(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.†Quite apart from the above, the High Court is
required to see that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. It has
been so stated in State of Rajasthan v. Shera Ram @ Vishnu Dutta[5].
The principle of law is that the testimony of child witness could form basis of conviction, if the same is credible and truthful and is corroborated by
other evidence.
Presence of (PW-3) on the spot is natural. He immediately informed the incident to the neighbors who reached on the spot. This fact has been
proved from the evidence of PW-1 and PW-2. Report of the incident was lodged immediately i.e. within one and half hour from the incident. From the
possession of appellant, a knife was seized. The cloths of the appellants black Jeans and half shirt were also seized. On the aforesaid cloths, human
blood was found, as per FSL report. Appellant did not offer any explanation. As per medical evidence, injuries noticed on the body of the deceased
could be caused by knife. There were number of injuries hence, the intention and motive of the appellant was to kill the deceased.
In view of the aforesaid evidence and taking into consideration the principle of law laid down by the apex Court in the case of Shivasharanappa
and others (supra), in our opinion, the trial Court has rightly held the appellant guilty for commission of offence punishable under Section 302 of IPC
and awarded proper sentence. We do not find any merit in this appeal, it is hereby dismissed.