Sonu Saxena And Others vs State Of Madhya Pradesh

The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1974 arising out of judgment of conviction and sentence dated 28.06.2013 passed by 5th Additional Sessions Judge, Bhopal in Sessions Trial No.721/2012, whereby the appellants have been found guilty for committing offences punishable under Sections 302 in alternate read with Section 302/34 and 201 of the I.P.C. and sentenced to Life Imprisonment with fine of Rs.1,000/- each and R.I. for 7 years with fine of Rs.500/- each respectively, with default stipulations.

In short, the case of the prosecution is that the incident occurred in the early hours of 04.08.2012. Initially, FIR (Exhibit P-15) was lodged at 2.40 am on 04.08.2012 by the present appellant No.2 – Banarsi Bai and it was alleged in the FIR that the deceased Dharamveer who was husband of appellant No.2 has gone at around 12.30 am in the night to recover some amounts, which were outstanding against some persons. He came back after around one hour and 15 minutes and was lying on the bed and was watching Television. After about 10 minutes, 4 unidentified assailants entered the house and assaulted the deceased. Two of the assailants were carrying some iron rod type object, which was used to hit the deceased in the head and body. The other two assailants are stated to have strangulated the deceased by a rope used as a clothesline. These assailants were also alleged to have taken away some ornaments from the appellant No.2 Banarsi Bai. Her 12 years old son Ravi (PW-1) was stated to be awake at that time and had witnessed the incident.

Upon investigation, it was found that the appellant No.2 was having some extra-marital relation with the appellant No.1 and the appellant No.1 and appellant No.2 have caused homicidal death of the deceased Dharamveer.

The postmortem of the dead body was conducted on 04.08.2012 (Exhibit P-12). Merg intimation (Exhibit P-14) was recorded on 04.08.2012 at 2.45 am at the instance of appellant No.2 – Banarsi Bai containing the story on similar lines as contained in First Information Report (Exhibit P-15).

5 . T he statements under Section 161 Cr.P.C. of Ravi (PW-1) were recorded on 05.08.2012, who revealed that his mother, i.e. appellant No.2 was having extra marital affair with appellant No.1 and that appellant No.2 and appellant No.1 have assaulted and murdered the deceased. His statements under Section 164 Cr.P.C. were recorded, which are also on similar lines. After such statements of Ravi (PW-1) during the course of investigation, on 05.08.2012 and his statement under Section 164 of Cr.P.C. on 07.08.2012, the present appellants were arraigned as accused persons.

6 . The spot map (Exhibit P-2) was prepared by Kishore Singh Dangi (PW-2), the memorandum of appellant No.2 (Exhibit P-3) and memorandum of appellant No.1 (Exhibit P-4) were taken under Section 27 of the Evidence Act. Vide seizure memo (Exhibit P-5) iron Hasiya, gold Mangalsutra with locket, silver Payal and blood stained green colour sari was recovered from the appellant No.2 on 05.08.2012, by seizure memo (Exhibit P-7) one iron “Topline rod” of tractor, one nylon rope, one blood stained shirt and one blood stained full pant was recovered from appellant No.1. Vide seizure memo (Exhibit P-8) one mobile and two letters said to be love letters written by appellant No.1 to appellant No.2 (Article - F) were also recovered.

In postmortem examination, it was found that the death of the deceased has been caused due to massive head injuries with skull fracture and multiple incised wounds and strangulation by rope around neck, which all jointly caused homicidal death. The autopsy examination found three lacerated wounds and incised injuries on occipital region of the skull, one incised injury behind left ear, one incised injury on left forehead, another incised injury on right thigh and ligature mark on the neck. The ligature mark was in two circles, the upper mark was found to be caused by a rope while the lower mark indicated to have been caused by a wire. The rope was opined to be a three ply blue colour rope while the wire causing lower mark was still in the neck, which was a black colour wire used for disk television. After investigation, challan was filed against the present appellants. The matter was committed by the Magistrate to the Sessions Court. The appellants pleaded innocence and claimed to be tried.

8 . T he trial Court recorded evidence of as many as six prosecution witnesses. After recording the evidence and hearing the parties, the Court below passed the impugned judgment dated 28.06.2013 and held the appellants guilty for offences under Sections 302/34 and 201 of the I.P.C. and sentenced them to Life Imprisonment.

Shri Hakim Khan, learned counsel for the appellant No.1 and Shri Rustam Khan, learned counsel for the appellant No.2 have vehemently argued the case of the respective appellants and submitted that there is no evidence in the case against the appellants and the appellants have been falsely implicated in the present case.

Learned counsel for both the appellants have argued that looking to the deposition of Achchhe Miyan (PW-5) the seizure stated to have been made from appellant No.1 is doubtful. It is argued that from perusal of para 4 of deposition of PW-5, it is apparent that this witness is the landlord of the deceased in the house where the deceased was residing along with appellant No.2 and children. It is further stated that looking to para 4 of deposition of PW-5, it is clear that the appellant No.2 had first rushed to this witness, when she found her husband dead. This witness rushed to the spot and saw that one Hasiya and “topline rod” was lying near the body. Thus, it is argued that the topline and Hasiya was lying near the dead body at about 2.00 am in the early hours of 04.08.2012. Thus, it is contended that the story of seizure of topline from appellant No.1 and Hasiya from appellant No.2 in the morning of 05.08.2020 is unbelievable and makes the entire prosecution story suspicious.

It is further argued that the story of the accused being under influence of Alcohol and the appellants having assaulted the deceased while he was fast asleep under influence of Alcohol cannot be believed because there is no finding in the postmortem examination that any liquor was found in the stomach of the deceased.

It is further argued by learned counsel for the appellant No.1 that presence of the appellant No.1 on the spot is doubtful. It is stated that the appellant No.1 has taken a clear defence in accused statements under Section 313 Cr.P.C. that he does not know the appellant No.2 and that he is totally innocent in the case. It is further argued that apart from the statements of Ravi (PW-1), who is a child witness, there is nothing on record to connect the appellant with the incident.

Learned counsel for both the appellants have also argued that the conduct of Ravi (PW-1) is doubtful in the matter. This witness is a child witness and his testimony should not be accepted at its face value because child witnesses are prone to tutoring. It is further argued that on 04.08.2012, this witness did not tell anyone about the appellants having assaulted the deceased. It was only on 05.08.2012 that this child witness came out with a version that it was the appellants, who have actually assaulted and killed the deceased. It is argued that this witness was under influence of his grandfather and uncles and under their pressure this child witness PW-1 has falsely implicated the appellants. Learned counsel for the appellants has relied on the judgment of the Hon’ble Supreme Court in the case of Pradeep vs. State of Haryana (Civil Appeal No.553/2012 decided on 05.07.2023). Learned counsel for the appellants have further argued that the Court should be very cautious in believing the testimony of single witness and conviction based on testimony of single witness should be as an exception and not the rule.

14 . P e r contra, learned Government Advocate for the State has submitted that the child witness PW-1 is fully reliable and he has duly proved the guilt of the present appellants. It is further argued that PW-1 is the son of deceased and appellant No.2. There is no reason why a child having lost his father in the same incident would implicate his mother falsely, even if he is tutored to say so. The Government Advocate further refers to deposition of PW-1, wherein in para 14 this witness has deposed that he was threatened by the present appellants that he should support the theory of unidentified assailants entering the house and assaulting the deceased, otherwise, he would be killed by them or all these three persons would be convicted of murder. Learned Government Advocate for the State also submits that there is a recovery of clothes from the appellants and they have failed to explain the presence of human blood on the clothes of the appellants. The recovery of weapons of murder from the appellants is duly established from the deposition of PW-5 and other witnesses. Thus, it is prayed that the judgment under appeal be confirmed and the appeal be dismissed.

We have heard learned counsel for the rival parties and perused the record.

We have considered the arguments advanced by learned counsel for the appellant that looking to the deposition of PW-5, that the seizure of weapons of murder from the present appellants on 05.08.2012 seems doubtful.

We have perused the deposition of PW-5. In para 4 of his deposition, Achchhe Miyan (PW-5) has deposed that in the late night/early morning hours when he reached the spot after being called by appellant No. 2, he saw iron “topline” and Hasiya lying near the dead body. Thus it has been argued that these two objects were lying near the dead body in the early hours of 04.08.2012 and these could not have been seized by the police in the morning of 05.08.2012. Upon perusal of the statement of PW-4 and the story as per the appellants and the prosecution, one thread is common that initially PW-5 was called by the appellant No. 2 on the spot and thereafter, the appellant No.2 along with her son (PW/1) and this witness PW-5 went to police. As the place of occurrence of incident was inside the house of the appellant No.2, the appellant No. 2 was having ample time to conceal the objects even if these objects were lying near the dead body when PW/5 was initially called by the appellant No. 2 on the spot. The trial court has held so in para 22 of the impugned judgment and this reasoning of the trial court does not seem to be perverse or unplausible.

The version put forth by appellant No. 2 in the FIR as well as in the merg intimation was that the unidentified assailants, apart from assaulting the deceased, had also taken away gold Mangalsutra and Silver Payal from the appellant No. 2. However, the Gold Mangalsutra and Silver Payal has been recovered from the possession of appellant No. 2 herself vide seizure memo Ex. P/5. Thus, the theory of unidentified assailants entering the house seems to be incorrect theory put forth by the appellant No.2 to mislead the investigation.

The clothes of the appellants have been found to be stained with human blood in the Forensic Science Laboratory (“FSL” for short) report Ex. P-21. Saari of the appellant no. 2 and shirt as well as pant of the appellant No.1 were found to be stained with human blood. The defence has failed to give any explanation of human blood being found on such clothes.

The other ground raised was as to non reliability of deposition of Ravi (PW-1). This witness Ravi is a boy aged around 12-13 years. He was living along with his parents in the rented dwelling. He is son of deceased Dharamveer and appellant No.2 - Banarsi Bai. The said witness has duly deposed that his mother was having extra marital relation with the appellant No.1. He has also deposed that appellant No. 1 was well known to his father and he was also working on tractor with his father. He has deposed that appellant No. 1 has assaulted his father by means of iron “topline” rod while he was sleeping. This iron “topline” is a rod like implement around 2 to 2½ ft. long and 2 to 3 inch in diameter. He also deposed that the appellant No. 1 hit the deceased in the head while appellant No. 2 (who is mother of this witness) hit the deceased twice in the right leg by a “Hasiya”. When they found that the deceased had not died, then they took out the a cable of TV disc antenna and strangulated the deceased. One end of the cable wire was pulled by appellant No. 1 and the other end was pulled by appellant No. 2. Due to extreme pressure and force, the cable broke down. Then the appellant No. 1 got the second rope fetched which was a blue colour plastic rope which was being used in the house for hanging out clothes. This rope was also pulled on one end each by the appellant No. 1 and appellant No. 2. Ultimately, the deceased Dharamveer died who was father of this witness. This witness also deposed that the appellant No. 2 had suggested the appellant No. 1 to dispose off the body somewhere but the appellant No. 1 refused saying that so much blood cannot be removed from the spot and suggested the appellant no. 2 to project the theory of unidentified assailants having entered the house and having committed the crime.

This witness has also explained in para 14 of his deposition that he was given a threat by the appellants to support the false theory of unidentified assailants entering the house. A 12 years old child who has just lost his father in violent attack and if he is threatened by same assailants (one of whom is his mother) then the conduct of the child cannot be said to be unnatural in coming under duress of such person, more so when one of those his own mother. This witness has also deposed that by dawn his grandfather and uncles came. He has also explained in para 10 of his deposition that he did not tell his grandfather and uncles immediately upon their arrival about the actual incident because his grandfather and uncles would have killed the appellants out of anger and they would have also gone to jail. Such type of logic adopted by a 12 years old child cannot be said to be unnatural. This child telling the actual incident after one day i.e. 05.08.2012 seems to be a natural conduct of this witness. After being in company of his grandfather and uncles and other relatives for one day, he would have come out of threat given by the appellants.

Learned counsel for the appellant also raised the ground that this witness seems to be tutored and that the child witness are prone to tutoring, their evidence cannot be lightly believed.

In the present case the child witness PW-1 is a 12 years old child and is not of such tender age who would not understand the happenings of the world. A 12 years old child who has lost his father in a violent incident is unlikely to falsely implicate his mother knowing fully well that his mother can go to jail for a long time, if he deposes against his mother. In his deposition the PW-1 seems to be well aware of the consequences of committing an offence of murder. No motive has been assigned to this boy PW-1 in falsely implicating his mother with the incident. This witness has also explained that in what manner he witnessed the incident. He has been cross examined from every angle by the defence and there is no inconsistency or contradiction in the entire deposition of this witness PW/1. This deposition runs into almost 7 pages.

So far as the acceptability of deposition of child witness is concerned, Section 118 of Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions. The trial court has put some preliminary questions to this witness PW/1 and on the date of deposition he was found to be 13 years of age. After considering such preliminary questions, the trial court has duly recorded satisfaction that this witness is duly competent to understand the questions put to him and giving rational answers to such questions. We have perused the deposition of PW-1 and from perusal of the entire deposition, it does not appear that this witness is unable to understand the question put to him an giving rational answers of such questions. There is nothing in the entire deposition which may render the said witness in competent witness in terms of Section 118 of Evidence Act. The Hon’ble Supreme Court in the case of P. Ramesh Vs. State, reported in 2019 (20) SCC 593 has held as under:-

“ 13. Section 118 of the Evidence Act, 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act, 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v. State of Maharashtra [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri) 685] , where this Court, in relation to child witnesses, held thus : (SCC p. 343, para 5)

“5. … A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.”

A child has to be a competent witness first, only then is her/his statement admissible. The rule was laid down in a decision of the US Supreme Court in Wheeler v. United States [Wheeler v. United States, 1895 SCC OnLine US SC 220 : 40 L Ed 244 : 159 US 523 (1895)] , wherein it was held thus : (SCC OnLine US SC para 5)

“5. … While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial Judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous.”

In Ratansinh Dalsukhbhai Nayak v. State of Gujarat [Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7. Subsequently, relied upon in Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454] , this Court held thus : (SCC pp. 67-68, para 7)

“7. … 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 the 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 that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. 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.

In order to determine the competency of a child witness, the Judge has to form her or his opinion. The Judge is at liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. [Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7] A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. [ Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis, p. 2678 citing Director of Public Prosecutions v. M, 1998 QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)] If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.

The deposition of PW-1 when tested on the anvil of the aforesaid legal position duly seems to be reliable and he does not seem to be tutored witness. The reliance by learned counsel for the appellant on the case of Pradeep (supra) seems to be misplaced because in the aforesaid case, the Hon’ble Supreme Court upon perusal of the deposition of child witness came to a conclusion that the Sessions Judge has not recorded satisfaction in terms of Section 118 of Evidence Act properly and also other inconsistencies in the deposition of child witness have been taken into consideration. The child witness was disbelieved in the said case in view of facts of that case. However, in the present case we have gone through deposition of PW/1 and his deposition duly seems to be reliable.

The other argument raised by learned counsel for appellant was that the conviction could not be based on the sole testimony of one eye witness and the court should be slow in facing the conviction on testimony of sole witness. It is settled in law that quality of evidence is of paramount importance and not the quantity of evidence. Conviction can be based on testimony of single eye witness also if the said witness passes the test of reliability and consistency with the information and material collected during the course of investigation. It is not the number of witnesses examined but the quality of evidence which is important, whereupon conviction can be based. In other words, the evidence has to be weighed and not counted. The litmus test of quality is the touch stone that whether it has a ring of truth and is cogent, credible or trustworthy or otherwise. (See:- Anil Phukan Vs. State of Assam 1993 (3) SCC 282 & Gulam Sarbar Vs. State of Bihar 2014 (3) SCC 401). In case of Gulam Sarbar (supra), it has been held as under :-

"19. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness, if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] , Kunju v. State of T.N. [(2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331] , Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150 : AIR 2010 SC 3638] , Mahesh v. State of M.P. [(2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783] , Prithipal Singh v. State of Punjab [(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [(2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807 : JT (2013) 1 SC 222"

Thus, the conviction based on testimony of PW-1 cannot be interfered with only on the ground that it is based on testimony of a single eye witness, if it inspires confidence. In the present case, the testimony of PW-1 does inspire confidence.

Learned counsel for the appellant has also argued that there was no smell of liquor in the stomach of the deceased because there is no such finding in the postmortem report. The said fact would not belittle and belie the prosecution version because if liquor is digested prior to death, its smell would not be evidences on postmortem. Even otherwise as per prosecution version, the deceased was sleeping. Even the FIR got registered by the appellant No.2 mentions that the deceased was under influence of liquor. The non recording of smell of alcohol in stomach of deceased at the time of postmortem does not in our considered opinion in any manner, demolish the prosecution version from any angle.

Learned counsel for the appellants have also argued that looking to the deposition of PW-3 it appears that the postmortem of the body of deceased took place on 05.08.2012 whereas postmortem report mentions the date as 04.08.2012. Thus, it is argued that the entire prosecution version seems to be doubtful. We have perused the deposition of PW-3. He is a rustic villager with ordinary understanding. The incident took place in the intervening night of 03 and 04 August 2012. Such a person getting confused with date as the incident occurred in the intervening night of two dates, does not seem to be a major contradiction in the prosecution version. The Merg intimation (Ex. P-14) duly contained the time 2.45 hours on 04.08.2012. Nearly the same date and time is mentioned in the FIR (Ex. P-15) i.e. 2.40 hours on 04.08.2012. Spot map is also dated 04.08.2012 (Ex.P-19). Postmortem examination is also dated 04.08.2012. The seizure of articles from appellant is of 05.08.2012 and it has duly come on record that seizure took place after one day. Thus the chain of date is very clear and merely one rustic witness getting confused with the dates because the incident occurred in intervening night of two dates, would not demolish the prosecution version. In any case, the appellants have not taken any defence that the deceased did not die, or that his body was not subjected to post-mortem examination.

In view of the aforesaid, even after re-appreciation of evidence and material carried out by this Court from the angles suggested by the defence, we do not find any infirmity in the judgment under appeal. No second view is possible in the matter so as to interfere with the finding of guilt and sentence recorded by the trial court.

Consequently, the appeal being devoid of merits, stands dismissed. The Judgment of conviction and sentence passed by the trial court is confirmed.

Copy of the judgment be sent to the trial court to ensure compliance.