Sone Lal and Others vs State

R.K. Shukla, J.—Sone Lal, his brother Ram Prakash and their mother, Smt. Sukhrani Appellants have preferred this appeal against the judgment and order dated 20-7-1976, passed by the 7th Additional Sessions Judge, Kanpur, whereby he has convicted all the Appellants u/s 302/34 IPC and sentenced each of them to imprisonment for life.

Sone Lal and Ram Prakash are real brothers and Smt. Sukhrani is their mother. Smt. Rani deceased is the wife of Ram Prakash and daugther of Ram Swarup (PW 1) of village Ranipur. Pramod (PW 4) is the son of the deceased, Smt. Rani from Ram Prakash Appellant. Satish Chandra (PW 2) is the brother of deceased, Smt. Rani.

Brief facts of the case are that 15 or 20 days before the incident there was a quarrel between Smt. Rani (deceased) and her mother-in-law, Smt. Sukhrani Appellant with regard to some domestic matter. This news was carried by the husband of Smt. Rani to Ram Swarup, father of the deceased. Upon this Ram Swarup (PW 1) accompanied by Mahadeo went to village Amaoli to his daughter and tried to patch up the matter by compromise. He wanted to bring his daughter to his house in village Ranipur; but they did not agree to that offer. Smt. Sukhrani Appellant complained Ram Swamp that his daughter was very quarrelsome and frequently quarrelled with her and that she would kill her. Ram Prakash Appellant told Ram Swarup that he would send Smt. Rani to her Maika after 10-15 days. After 10-15 days Ram Swarup sent his son, Satish Chandra to fetch his daughter to his house, but they did not allow Smt. Rani to go with her brother. Smt. Rani insisted on going to her father''s house along with her brother. Thereupon a quarrel started between Smt. Rani and her husband, Ram Prakash as well as Smt. Sukhrani and Sone Lal. Satish Chandra (PW 2) stayed at his sister''s house over-night. Next day he again requested them to allow him to take his sister to his house. His request was again turned down by them. When Smt. Rani insisted to go along with her brother, her husband, Ram Prakash was infuriated and started beating her with Dandah. When Satish Chandra intervened, he was also given some blows. Any how he managed to pacify them and returned to Ranipur and informed about all the happenings to his father, Ram Swarup.

It is said that on 11-10-1974 at about 9 P.M. Smt. Rani was burnt in her father-in-law''s house by her husband, Ram Prakash, his younger brother, Sone Lal and their mother, Smt. Sukhrani by sprinkling kerosene oil on her body. Sri Ram (PW 3) had also gone to that village for fetching Geography book from one Lala Ram (DW 2). In the night at about 9 p.m. on 11-10-1974 he heard from certain people of the village that Smt. Rani had been burnt inside her house in village Amauli by her husband, husband''s younger brother, Sone Lal and Smt. Sukhrani. Therefore, be rushed to the house of the Appellants and went inside the house and found that Smt. Rani had been severely and badly burnt and was lying in precarious condition. At that time Smt. Rani told him that a quarrel had taken place between her husband, her mother-in-law and her Dewar in connection with her going to her Maika. She was insisting to go there while they were bent upon for not sending her. Hence just before the occurrence they started beating her with Dandha and when in order to save herself from their clutches she ran upon the steps towards Atari, her husband Ram Prakash caught hold of her hair and dragged her down due to which she fell down and became semi-unconscious. Thereafter the three Appellants sprinkled kerosene oil on her body and burnt her. When she regained consciousness and started moving, her monther-in-law told them that the fire should be extinguished and her treatment should be done. Before this, they had thought that she had already died. Raj Kumar and Sri Ram (PW 3) went in the village and brought Burnol and rubbed the same on the burnt part of her body. Smt. Rani died at about 11 p.m. in the night.

Thereafter Sri Ram (PW 3) went to his village and informed the father of Smt. Rani about the gruesome murder.

In the meantime Ram Prakash Appellant had written a false report, Ex. Ka-2 and lodged it at the police station Darapur at about 6.30 p.m. on 12-10-1974. In this report it was said that Smt. Rani had died of burns by accident in the night of 11-10-1974 at 9.30 p.m. It was further alleged therein that she was cooking her food and a kerosene Dhibri was burning there. She had to take something from the Kothla. When she picked up the kerosene Dhibri and went towards the Kothla, she collided and fell down with the Dhibri with the result that she caught fire and was burnt. It is further stated therein that Ram Prakash and others were out side the house and when they heard her groaning voice, they rushed inside and found that she had caught fire and was burning. They tried to extinguish the fire and save her with the help of gunnybag but could not succeed. The people from the village also brought Burnol and used on her body as a balm; but she died at about 11.30 p.m. in the night.

This report, Ex. Ka-2 was received by Seva Ram, Constable on 12-10-1974 at 6.30 p.m. A case was registered in G.D. at No. 5, copy of which is Ex. Ka-3. The matter was entrusted to Devi Dayal Dixit, SI (PW 8) to inquire. He reached the spot on that very day, inspected the place, saw the body and kerosene Dhibri lying near it. He appointed patches, prepared the inquest report, Ex. Ka-7 sealed the body and sent it for post mortem examination. While panchayatnama was being prepared Ram Swarup (PW 1) father of the deceased reached the spot and expressed his suspicion that the death of Smt. Rani was not accidental but she had been murdered by the three Appellants. The Section. 1. Devi Dayal Dixit (PW 8) recorded his statement and stopped further proceedings. In the inquest report itself he specifically wrote that he was in disagreement with the opinion of the panchs that Smt. Rani died due to accidental burn.

Devi Dayal Dixit, S.I. overstayed in the village Amauli on 12-10-1974 and reached the police station on 13-10-1974 at about 6.30 p.m. He made an entry in the GD at No. 29 on the basis of the statement of Ram Swarup (PW 1) and converted the case into that of Section 302 IPC. He wrote in detail the cause of death of Smt. Rani and how she was murdered.

Dr. S.P. Bhatnagar (PW 5) performed the post mortem examination on the body of the deceased on 13-10-1974 at about 2 p.m. and found four superficial burns. About 90% of the body was burnt. The area of abdomen between umblicus and pubis and upper part of both the thighs was clear of burns. In the opinion of the doctor, the cause of death was shock due to burns of chest and face.

This case was entrusted for investigation to Sri Mahendra Bahadur Singh (PW 7), who recorded the statements of Pramod (PW 4) on 14-10-74 and other witnesses as well After completing the investigation he submitted charge sheet against all the Appellants in court.

The Appellants denied the charge and stated that they had been falsely implicated due to enmity. They have produced two witnesses Maiku Lal (DW 1) and Lala Ram (DW 2) in their defence.

The prosecution has examined eight witnesses in support of its case, out of whom Ram Swarup (PW 1), Satish Chandra (PW 2), Sri Ram (PW 3) and Pramod (PW 4) are said to be the witnessess of this incident. Rest of the witnessess are the aforesaid doctor and two I Os.

The case of the prosecution rests on the statements of the aforesaid four withesses. So far as the evidence of Ram Swarup (PW 1) and his son Satish Chand (PW 2) is concerned, they are not the eye witnesses of the occurrence. They have spoken about the previous occurrence, which had taken place when Ram Swarup and Satish Chandra had gone to the house of the Appellants Their statements are unnatural and do not inspire confidence. Ram Prakash Appellant and the deceased were married 13-14 years before the occurrence. They had three childern and there is no evidence on record to show that the relations between the husband and the wife were strained before the period stated by these two witnesses. There is contradiction in the statement of Ram Swarup (PW 1) on material point, which has been brought on the record as Ex. Kha-1 in which he is said to have stated before the IO that, " Gaon Ranipur apne ghar wapis aya to batlaya ki tumhari ladki jalkar mar gayee hai. " In the session court he has stated that Sri Ram informed that Smt. Rani was murdered by burn. Satish Chandra (PW 2) has also made material improvement in his statement. He has admitted in his cross-examination that he has not stated to the 10 that Pramod had told him that Appellants killed his sister by burning. Ram Swarup (PW 1) has said that mother-in-law of his daughter, Smt. Rani told him that she would kill his daughter. This does not appear to be natural. Satish Chandra (PW 2) has stated that he was beaten by his brother-in-law, Ram Prakash Appellant. It also seems to be unnatural. They do not stand the test of cross-examination. From the statement of Pramod (PW 4) himself, it is clear that Ram Swarup (PW 1) had demanded Rs. 2000/- from- the Appellant, Ram Prakash for returning Pramod, which he refused to pay. This conduct of Ram Swarup (PW 1) creates grave doubt about the correctness of his statement. None of these two witnesses have explained how Pramod (PW 4) came in their custody from the house of barber where he was sent according to the prosecution. After going through the evidence of Ram Swarup (PW 1) and Satish Chandra (PW 2) we feel that because Smt. Rani died due to burn, so they were annoyed with the Appellants and have come forward to take vengeance from them. In our opinion their evidence does not inspire confidence.

The next witness is Sri Ram (PW 3) who has given the evidence regarding the dying declaration made to him by the deceased, Smt. Rani just after the incident. His presence in the village Amauli at the time of the occurrence has been controverted by Lala Ram (DW 2). who has stated that Sri Ram had never gone to him for fetching any Geography book. There is no adequate reason to disbelieve him. Moreover, if the Appellants had actually committed the murder of Smt. Rani, they would not have allowed a person from the village of her Maika to go near her inside their house. After careful scrutiny of the evidence on the record, we come to the conclusion that Sri Ram (PW 3) is not a reliable witness and no reliance can be placed on the alleged dying declaration made to him.

Now we are left with Pramod (PW 4), who can be described as an eye witness. Pramod (PW 4) was a child aged about 7-8 years at the time of his evidence, which was recorded two years after the occurrence. At the time of the occurrence he might have been 5-6 years of age. The position of law relating to a child witness is very well settled by now in India. In the case of Mohamed Esa Mamasan Re Alalah v. The King AIR 1946 PC 3 it has been held as under;--

In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particularly implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.

In the case of Rameshwar Vs. The State of Rajasthan, , it has been held as under:

The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge.

In the case of S.G. Mohate 1973 SCC 214 the Supreme Court emphasised where the witness was not only a teen ager but the only witness claimed to be an eye witness, his or her evidence had to be scrutinised with care and caution. In the case of Suresh Vs. State of U.P., his Lordship the Chief Justice Chandrachud has observed clearly, "We must confess that if the case were to rest solely on Sunit''s uncorroborated testimony, we might have found it difficult to sustain the Appellant''s conviction." He has further observed as under:

A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale....Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray.

Thus the rule of corroboration of the statement of a child witness is not a rule of law but it is rather a rule of prudence. That rule has been crystallized with the experience of Judges, who very often found such witnesses under influence and their testimony tainted by extraneous circumstances. If the statement of a child witness inspires confidence and there is unlikelihood of tutoring and his demeanour is found straight forward, no corroboration would be required of his statement. In the light of these observations, we have to consider as to whether the statement of Pramod (PW 4) alone would form the basis of conviction without any reliable corroboration. The learned trial Judge has found this witness truthful.

The main question in this case for determination is whether Pramod (PW 4) was present at the time of occurrence and saw the occurrence. The learned Additional Government Advocate vehemently urged that Pramod (PW 4) is the only son of his father, therefore, it will be presumed that he was living with his father. There is no difficulty in drawing such presumption; but this presumption is certainly rebuttable. In the instant case the child, Pramod (PW 4) himself has admitted in his cross-examination that he was living with his maternal grand-father from his childhood (Bachpana). He has also admitted that his maternal grand-father demanded Rs. 2000/- from his father for returning him back to his father after the death of his mother, which he (father) did not pay to his maternal grand-father (Nana). From these two admissions by Pramod (PW 4) it can reasonably be inferred that at the time of the occurrence he was not living with his father in village Amauli.

Not only this, the name of Pramod (PW 4) is neither mentioned in the report, Ex. Ka-2 of his father nor in the complaint, Ex. Ka-10 made by his maternal grand-father, Ram Swarup (PW 1). According to the prosecution he was interrogated by the I.O. first time on 14th. But Pramod (PW 4) has stated in cross-examination that he had never narrated this fact of beating and burning to any body before that date when his evidence was recorded. This appears improbable if he had seen the occurrence. He has further stated that after the occurrence he was sent to the house of a barber. The barber has not been produced. Neither he has stated nor any other evidence has been produced to show how and when he reached in the hands of his maternal grand-father. No person of village Amauli has been produced who could say that he was living in that village at the time of the occurrence. On the other hand Lala Ram (DW 2) has stated that Ram Swarup (PW 1) came to village Amauli with Pramod on the next day. There is no cross-examination on this point. Thus there is no reason to disbelieve him. We find it difficult to hold that Pramod was present at the time of the occurrence and he is a truthful witness.

Probabilities also indicate that this boy was not present there. He could not name any child of the village or the next door neighbour of his father. No evidence was produced that he was studying in village Amauli in any school. He does not know anybody of village Amauli except the Appellants. He has stated in cross-examination that he was reading in class I in village Amauli when his mother was alive. In the examination-in-chief he has stated that he was reading in class I in village Hariharpur. It looks strange that even after two years he was reading in the same class. How he was at both times in class I is a matter of some curiosity and cannot be easily accepted. He has stated that his mother was severly beaten by two men but no previous injury was found by the doctor vide injury report, Ex. Ka-5. The learned Sessions Judge has lightly brushes aside the aforesaid admissions of Pramod (PW 4) on the ground that he was probably confused. He has rejected all evidence and circumstances favourable to the Appellants on meagre grounds. Under these circumstances we find it difficult to agree with the conclusion of the learned Sessions Judge that he is a truthful witness. It appears that Pramod (PW 4) was under the influence of his maternal grandfather and his family, who made him to believe that his mother was killed by the Appellants. His testimony is tainted with extraneous consideration. In our opinion Pramod (PW 4) was not present at the time of occurrence, he is a tutored witness and no conviction can be based on his evidence.

The case of the prosecution does not find full corroboration from the medical evidence. According to the statement of Pramod (PW 4) Smt. Rani was severly beaten by the Appellants, thereafter, kerosene oil was sprinkled. The doctor has found no injury of previous beating. There is no doubt that 90% of the body was superficially burnt; but according to the evidence of Pramod (PW 4) there was severe beating by two persons, yet no injury was found by the doctor, which could be described as previous injury.

When we come to the defence case, we find the evidence of Maiku (DW 1) Pradhan of the village, who had endorsed on the inquest report itself that the death was accidental. S.I., Devi Dayal Dixit (PW 8) also saw a kerosene Dhibri lying near the corpse when he has gone to inquire the cause of death. Although he had not taken the Dhibri in his custody, but his statement is sufficient to probabilize the case of defence. There is no reason to disbelieve the evidence of Maiku (DW 1), the village Pradhan, who has stated that the death was accidental. If the Appellants had actually killed Smt. Rani, he would not have come to depose falsely in their favour. We do not agree with the adverse comments of the learned Sessions Judge against the village Pradhan and S.I., Devi Dayal Dixt (PW 8). Remarks of the learned Sessions Judge are uncalled for. There is no reason to discard the evidence of Lala Ram (DW 2), who has stated that Ram Swarup (PW 1) came to village Amauli with his grand-son Pramod (PW 4) on the next day. The witness was not cross-examined on that point. We have already accepted his evidence on this point.

After going through the entire evidence on the record, we are satisfied that the prosecution has failed to prove its case against the Appellants beyond any shadow of reasonable doubt. On the other hand the evidence on record probabilized the case of defence. Therefore, the judgment and order of the learned Sessions Judge are not justified and are liable to be set aside.

In the result the appeal succeeds and is allowed. The judgment and order of the learned Sessions Judge are set aside. The Appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are discharged.