Ram Saran vs State of U.P.

G.K. Gupta, J.—Through this appeal, which has been preferred from jail, Ram Saran has challenged the judgment and order dated 21.1.1997, passed by Sessions Judge, Unnao in Session Trial No. 458 of 1993 whereby he has been convicted and sentenced to imprisonment for life for the offence punishable u/s 302, I.P.C.

Briefly stated the prosecution case runs as under:

The deceased Shatrughan was resident of village Gosha Kutub within the limits of Police Station, Bangarmau, district Unnao. The Appellant Ram Saran is the elder brother of the deceased and he was also residing in the same house along with the deceased. The deceased as well as accused were maternal uncles of Km. Malti (P.W. 1).

In the intervening night of 27/28.5.1993 the deceased Shatrughan was sleeping in the courtyard beneath a chhappar on a cot along with his Bhanji (sister''s daughter), Malti aged about 7 or 8 years. The Appellant Ram Saran was sleeping on the roof of his house. At the last phase of night, some times before 4 a.m. the Appellant started assaulting the deceased with a gandasa. Km. Malti, however, woke up on hearing the sound of assault and groaning of the deceased. She asked the Appellant (her maternal uncle) not to assault. Whereupon the Appellant warned her to keep mum otherwise she would be killed. Km. Malti then remained silent and Appellant continued assaulting Shatrughan. After killing Shatrughan the Appellant ran away. She then raised alarm and as a result thereof several persons of the village, including Ram Singh came. She told them as to how Ram Saran had assaulted Shatrughan.

One Hori Lal was sent to the place of Chheda, village Chaukidar, where he narrated the incident to Angad (son of Chaukidar) who was virtually looking after the entire work of his father. Angad (P.W. 2) thereupon came to the house of deceased where several persons of the village were already present. Angad found that the deceased Shatrughan was lying dead on a cot in the courtyard. On enquiry, Km. Malti told him how Ram Saran had assaulted Shatrughan with a gandasa and how she was threatened if she did not keep mum.

On the request of village people, Angad prepared the written report (Ext. Ka-1) which he had lodged at the Police Station Bangarmau on 28.5.1993 at 8 a.m.

The evidence of P.W. 6 Khanjan Lal Verma shows that on 28 5.1993, he was posted as Head Constable at Police Station Bangarmau. He stated that on the basis of the written report he prepared the chick F.I.R. (Ext. Ka-4) and made necessary entries in the G.D. vide Ext. Ka-5. On the same day he also made entries in the G.D. regarding the deposit of recovered articles in the malkhana vide Ext. Ka-6.

The evidence of S.I. D. D. Mishra (P.W. 10) shows that he took up the investigation of the case and proceeded to the spot where he performed the inquest (Ext. Ka-2) on the dead body. He also prepared photolash, challan lash, letter to C.M.O., the letter to R.I. which are Ext. Ka-8 to Ext. Ka-11. He also collected blood stained and plain earth from the place of occurrence and sealed them under a recovery memo (Ext. Ka-12). He also collected blood stained pillow, tahmad and badh of cot having blood stains under a recovery memo (Ext. Ka-13). He also took into possession blood stained frock which Km. Malti was wearing at that time of incident and prepared a fard (Ext. Ka 12).

He also recorded the statements of Angad, Man Singh, Ram Singh and also statement of the witnesses of panchayatnama and witnesses of inquest. He also visited the spot and prepared site-plan (Ext. Ka-17). Thereafter the investigation was taken up by Inspector P. M. Rai.

On 13.6.1993, the Appellant surrendered in the Court. S.I. Nanak Chand interrogated him and submitted charge-sheet Ext. Ka-18.

Now reverting back, the dead body of the deceased was brought to the mortuary by Constable Suresh Kumar. The post-mortem of the dead body was conducted on 29.5.1993 at 2.15 p.m. by Dr. R. C. Dwivedi (P.W. 8), who found on it the following ante mortem injuries:

(1) Incised wound 5 cm. x 2 cm. x muscle deep from right nostril, 2 cm. apart of right ear on cheek, clotted blood present:

(2) Incised wound 3 cm. x 1.5 cm. x muscle deep from right angle of mouth on right cheek, 2 cm. below injury No. 1 clotted blood present.

(3) Incised wound 4 cm. x 2 cm. x muscle deep on upper part of right side of neck adjacent to chin, 2 cm. below injury No. 2 clotted blood present.

(4) Incised wound 6 cm. x 3 cm. on left cheek x cavity deep with fracture of left maxilla from left nostril injury obliquely upward adjacent left of eye. Clotted blood present.

(5) Incised wound 3 cm. x 1.5 cm. x muscle deep from left canthus of left eye and joining to injury No. 4.

(6) Incised wound 6 cm. x 3 cm. x brain cavity deep part of left ear and left parietal bone middle part and joining to injury No. 5 and fracture of left parietal bone with brain tissues coming out from the wound with laceration of membranes.

On internal examination 300 grams of clotted blood in brain cavity, gases and semi-digested food were found in small intestine and large intestine was found filled with gases and faecal matter.

The cause of death was reported by the Doctor as shock and haemorrhage as a result of ante-mortem head injury.

It is pertinent to mention that Doctor R. C. Dwivedi (P.W. 8) reiterated the same cause of death in his statement on oath. He proved the post-mortem report Ext. Ka-7 and stated that death could have been caused at about 4.30 or 5 a.m. on 27/28.5.1993. He also stated that these injuries of the deceased may be caused by some sharp edged weapon such as gandasa.

Blood stained articles such as blood stained earth, plain earth, blood stained frock, tahmad etc. were brought for chemical examination by P.W. 7 Constable Mahabir Prasad on 9.7.1993.

The report of the Chemical Examiner Ext. Ka-19 is on the record.

The case was committed to the Court of Sessions in usual manner where the Appellant was charged for offence punishable u/s 302, I.P.C. The accused pleaded not guilty to the charge and claimed to be tried.

During trial the prosecution examined in all ten witnesses. P.W.1 Malti is the only eye-witness of the incident and P.W. 2 Angad is the informant. The testimony of both these witnesses has been discussed above in para 2 of the judgment. P.W. 3 Man Singh, P.W. 4 Ram Singh, P.W. 5 Ram Swarup are witnesses of inquest and fard. The evidence of P.W. 6 S. C. Khanjan Lal Verma, P.W. 7 Constable Mahabir Prasad, P.W. 8 Dr. R. C. Dwivedi, P.W. 9 Suresh Kumar and P.W. 10 S.I. D. D. Mishra has already been discussed above. It is needles to burden our judgment by reiterating the same.

After the closure of the prosecution evidence the statement of the accused u/s 313, Cr. P.C. was recorded. He denied the prosecution version and stated to have been falsely implicated. No evidence in defence was adduced.

The learned trial court accepted the evidence of the witnesses and primarily that of Km. Malti Devi (child witness) against the Appellant and recorded a finding of conviction and sentenced the Appellant to imprisonment for life as stated in earlier part of the judgment.

We have heard Mr. Yogendra Singh (amicus curiae) and Sri Umesh Verma, Additional Public Prosecutor for the State of U. P. We have also perused the depositions of the prosecution witnesses, material exhibits tendered and proved by the prosecution, the statement of the Appellant recorded u/s 313, Cr. P.C. and the impugned judgment. After the utmost circumspection we are of the opinion that this appeal deserves to be allowed.

In this case the occurrence undisputedly took place in the dark hours of the night and the only eye-witness of the incident is Km. Malti Devi. The entire prosecution case hinges around the testimony of P.W. 1 Km. Malti Devi. The learned trial court believed her testimony and recorded a finding of conviction, as stated above.

Learned Counsel for the Appellant however very vehemently assailed the said finding and contended that Km. Malti Devi is aged about 7 or 8 years and she is a child witness whose tutored testimony has been believed by the trial court, without any independent corroboration. His further contention was that in this case genuineness of the F.I.R. is doubtful and the entire prosecution case is full of improbabilities.

So far as the contention regarding witness Km. Malti Devi (P.W. 1) as being a child witness is concerned, it looks expedient to have a glance over the evidentiary value of a child witness before embarking upon her statement, as made on oath.

So far as the testimony of child witness is concerned, it is undisputed in law that the child is not an incompetent witness whose evidence must be discarded always. Though no precise criteria for appraising the evidence of a child witness can be laid down but the test generally prevalent is that whether there was possibility of any tutoring. There is always a fear that the children are innocent and they can easily fall prey to tutoring.

In the oft quoted case of Ram Hazoor v. State 1959 ALJ 239, it was observed that child witnesses can easily be made to believe in things which they themselves have not seen and this belief, when once it gets hold of a child witness, is difficult to shake. It is also well-known that a child witness can be tutored much better than the adults and further that when once a child witness has been properly tutored, then such a child witness can not easily be shaken in cross-examination.

In Lalu Chaudhury Vs. State, , it was observed that child witnesses are easily susceptible to tutoring and telling imaginative stories and their evidence must, therefore, be scrutinized with extreme care and caution before being acted upon as true and dependable. For appraising the evidence of a child witness, the first test is whether there is any evidence of tutoring. If this test is found to be positive, the Court should not convict an accused on a serious charge like murder, relying solely upon the evidence of a child witness, unless it is corroborated in material particulars connecting the accused with the crime. This precaution should be taken even if there is no infirmity in the evidence of a child witness.

In the backdrop of the above principles, it is clear that there can be no more dangerous witnesses than young children and, therefore, before putting reliance on their testimony, Courts have to be very cautious and alert.

While switching over to the testimony of sole eye-witness Km. Malti, it is crystal clear that she has claimed herself to be the eye-witness of the incident. She has stated that on 28.5.1993 sometimes before 4 a.m. the Appellant assaulted deceased Shatrughan with gandasa. At that time she stated to have been sleeping on the same cot by the side of the deceased. On hearing some sound of assault and groaning of the deceased she woke up. She further stated to have forbidden the Appellant but the Appellant in turn warned her to keep mum otherwise she would be killed.

Malti Devi (P.W. 1) continued repeating the same story throughout but a perusal of her deposition in cross-examination makes it manifest that she is thoroughly a tutored witness.

P.W. 1 Km. Malti has deposed in her cross-examination that she had been brought to the Court by one Constable and Darogaji and the statement which she has given, had been told to her by them. At the next stroke in the same sequence she took shifting stand. She stated that she stated only that much which she had seen. Then she went to say that whatever she has stated before the Court, she has also told the same to Darogaji in the Court premises on the same day, and she had about one hour long conversation with Darogaji about the present murder. From her deposition it appears that she was very much conscious and under the influence of the police. The learned trial court has however dealt with this aspect of the matter but we do not find ourselves in agreement with the approach the trial court has adopted. When such a deposition of this witness P.W. 1 is seen in the back drop of her statement made at the very start of the cross-examination where she stated that she does not know as to how many months are in a year ; as to how many days are in a month ; how many seasons are there in a year and she simply stated to be knowing numerical numbers up to 20, it is difficult to believe that she stood to the test of cross-examination in such a way as if she was well matured and well acquainted with the incident, which apparently looks to us to be a clear cut reflection of tutoring by the police.

Mr. Yogendra Singh, learned amicus curiae contended that the depositions made by this witness P.W. 1 on oath in this regard are not believable and credible. He contended that the incident took place in the dark hours of the night and since the place of occurrence was surrounded by walls as deposed to by P.W. 1 herself and there was no light available from any corner so the question as to how this witness was in a position to identify the Appellant while assaulting the deceased is relevant. It is urged that even if she woke up on hearing the sound created by assault or by groaning of the deceased but how could she identify the Appellant, in the absence of light.

It may be argued that this witness identified the assailant by voice when Appellant warned her with dire consequences if she does not keep mum but strange enough no such case has been set up by the prosecution. Instead it is manifest that this witness P.W. 1 forbade the Appellant by name, not to assault, straightaway on hearing the sound of assault and groaning of the deceased prior to any conversation or warning.

In the above context the learned Counsel for the Appellant drew our attention to one of the most glaring improbabilities occurring in the prosecution case. It was argued that even if prosecution version that she woke up and forbade the Appellant from assaulting the deceased upon which the Appellant threatened her with dire consequences, if she did not keep mum, is taken to be true, it is unbelievable that the Appellant would ever like to leave such a witness untouched, who may prove at subsequent stage fatal for him. He urged and we are also of the view that if this witness P.W. 1 would have seen the Appellant committing murder the Appellant would have been last person to spare this witness. Instead the Appellant would have chosen to first finish her.

The learned Counsel for the State at this juncture contended that the Appellant as well as the deceased both are maternal uncles of this witness and they all are related by blood and so this witness would never like to speak against any one of them unless and until there is some truth and so the testimony of this witness cannot be brushed aside easily. The contention of learned Counsel for the State apparently sounds very attractive but actually it has no legs to stand upon. The child witness, as already stated above, is a most dangerous witness whose testimony should be critically examined before accepting it. It is very material to mention as this witness has herself admitted in her cross-examination that her mother was murdered three months before the present incident and she was told that at the time of murder of her mother, Appellant Ram Saran was present and she was also told that this Appellant Ram Saran had got her murdered, she was nursing a grudge against him. In such circumstances it is difficult to believe that this witness P.W. 1 is impartial and will speak truth and nothing but truth. There is every possibility that this witness in order to ventilate her grudge falsely implicated the accused. Therefore it does not appear to be safe to hurriedly accept her testimony particularly in the absence of independent corroboration.

The learned Counsel for the Appellant also contended that in this case the F.I.R. has not been lodged by this witness P.W. 1 Malti and further the F.I.R. which has been lodged does not appear to be free from doubt. According to him the F.I.R. is based on hearsay evidence. This contention has again substance in it.

The F.I.R. has been lodged by P.W. 2 Angad, who is son of village Chaukidar Chheda. He has stated that at about 4 a.m., one Hori Lal came to him and informed that Ram Saran has assaulted Shatrughan by gandasa. He then came to the place of incident where he found Shatrughan dead and on enquiry Malti (P.W. 1) narrated the incident and told him that Shatrughan was assaulted with a gandasa by the Appellant. On the request of the village people he went to lodge the report. This witness P.W. 2 Angad has never stated that he has scribed and lodged the report either at the dictation or at the instance of Malti. No doubt this witness stated that Malti told the name of the Appellant being the assailant, who had committed murder of Shatrughan by causing gandasa injuries but P.W. 1 Malti never stated that she had told this fact to Angad. She has also not stated that she had asked Angad to scribe the report and lodge it at the police station. She has, however, stated that the next morning she went to the police station along with Angad (P.W. 2). P.W. 2 Angad has also stated that Malti had gone along with him to the police station. Strange enough P.W. 6 Khanjan Lal Verma, Head Constable in whose presence this report was lodged at the police station denied the same. He stated that only informant Angad had come to the police station to lodge the first information report. It means that this witness Malti had not gone to the police station. In any view of the matter, if Malti had accompanied Angad and had gone to the police station we fail to understand the hitch which Malti had in not lodging the report.

The genuineness of the F.I.R. is also marred from the very fact that P.W. 1 Malti deposed in her cross-examination that Darogaji and Police came on the spot even before sunrise. If the police had come before lodging of the F.I.R., the possibility of fabrication cannot be ruled out.

The machinery of law was set in motion by P.W. 2 Angad who lodged the report at the police station. This witness Angad came to know about the incident when Hori Lal came to his house and informed that the Appellant Ram Saran had assaulted the deceased by gandasa. It is a sorry tale that this Hori Lal has not been examined by the prosecution for the reasons best known to it. If at all Hori Lal had seen the incident and passed on the information to this witness. P.W. 2, he was a very material witness to unveil the truth.

Before parting with the case, it may be mentioned that P.W. 3 Man Singh, P.W. 4 Ram Singh and P.W. 5 Ram Swarup are the witnesses of panchayatnama and fard. They have, admittedly, not seen the incident, though they had tried to make some factual depositions in regard to the incident but they are all hearsay and hardly material in proving the case.

It is also crucial to mention that in this case the incident took place on 28.5.1993 and the accused-Appellant could not be arrested. There is no averment that the Investigating Officer ever tried to arrest the accused. The accused surrendered in the Court on 13.6.1993 and even thereafter there is nothing to show that the Investigating Officer ever tried to recover the weapon used in the crime.

Having regard to the entire facts and circumstances of the case we are of the opinion that the finding of conviction as recorded by the trial court cannot be sustained and this appeal deserves to be allowed.

In the result:

The appeal is allowed. The judgment and order dated 21.1.1997 passed by the trial court convicting the Appellant for the offence punishable u/s 302, I.P.C. and sentencing him to undergo imprisonment for life is set aside. The Appellant Ram Saran is hereby acquitted of the charge u/s 302, I.P.C.

Accused-Appellant is in jail. He shall be set at liberty forthwith, if not wanted in any other case.