Full Text
CRL.A. 939/2012
JUDGMENT
Through: Mr. Arjun Singh Bhati, Advocate
Through: Ms. Aashaa Tiwari, APP for State with SI Niranjan Kumar, PS – Bhajan Pura.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. The present appeal has been filed by the real brother of the deceased Tasleem under Section 372 of the Code of Criminal Procedure against the judgment dated 30.03.2012 passed by the Additional Sessions Judge by which the respondent No. 2 to 5 stand acquitted of the charge under Section 120-B and Section 302 read with Section 120-B of the Indian Penal Code.
2. The brief facts of the case, as noticed by the Trial Court are as under: “On 03.08.2008 at about 4.20 AM, an information was received from Wireless Operator by the Duty Officer at the Police Station Bhajanpura regarding the quarrel taken place at Gali No. 7, near water tank, Ghonda. On receipt of the said information, ASI Baldev Raj alongwith Ct. Hawa Singh reached at the spot i.e. B-13/16, Gali No. 7, Subhash Mohalla Delhi, and found that dead body of one Taslim S/o Rahmat Khan was lying on the first floor in a pool of blood, who was having stab injuries on his hands, chest, stomach, face and thighs. They also found that one blood stained 2016:DHC:4794-DB dagger was lying on the stair of first floor and another blood stained dagger was lying in the room of deceased at second floor. The stairs from first floor to second floor were also having the blood spots. The room of the deceased at 2nd floor was also having the blood spots on the floor. The Sahista (accused) wife of the deceased met IO there and got recorded her statement which is as under:- “I am residing alongwith my family on the above-said address at 2nd floor and on the 1st floor of the said house, maternal uncle of my husband is residing alongwith his family. My husband runs a factory of stitching clothes at Subhash Mohalla. Today dated 03.08.2008, I and my husband were talking with each other till 2 AM (night) and thereafter, he started doing the work of accounts (hisab- kitab) of the factory and watching T.V., in the room. I have four children, two sons and two daughters. Due to summer season, I usually sleep on the roof of my house. My three children were also sleeping with me but my elder son Suhel, aged about 9 years, was sleeping with his father on the second floor and at 3.45 AM, I heard some noise and my husband was raising alarm “Maar dia Maar dia”. On this, I came downstairs and saw that my husband was lying in a pool of blood, in front of room of 'mama' at first floor near stairs and mama Masooq and his wife Tahira were also standing there. I tried to talk to my husband but he did not respond and was lying unconscious. Body of my husband was having stab injuries caused by sharp-edged weapon and blood was oozing out from the said injuries. Mohalla people had gathered there and some one called the police over 100 number. My husband has been murdered by some-one. Legal action be taken.” On the basis of the above- statement of accused Sahista, ASI Baldev Raj got the FIR registered under Section 302 IPC from the PS. The Crime Team and Senior Police Officers were called at the spot. The photographs of the spot were taken by the Crime Team, Senior Officers inspected the spot and site plan was prepared. The sketches of both the daggers were prepared and they were seized by the IO. He also lifted and seized the Blood sample, Earth Control and other exhibits from the spot. The dead body was sent to Mortuary of GTB Hospital. The statements of PWs were recorded. The postmortem on the dead body was got conducted and thereafter, the dead body was handed over to his relatives and statement of the relatives of the deceased were recorded. The call details in respect of mobile phone No. 9312907116 of deceased Tasleem and mobile phone No. 9319480172 of accused Naseem of 03.08.2008 were collected. It was disclosed on the information given by children of the deceased that phone of the deceased used to remain with accused Sahista who used to contact accused Naseem on his phone through the phone of deceased Tasleem with whom she had entered into a criminal conspiracy to kill the deceased Tasleem. Accused Sahista had made the disclosure statement and also disclosed the details of the criminal conspiracy and in furtherance of that criminal conspiracy, the accused persons caused the death of Tasleem. She also disclosed the names of coaccused persons who were subsequently arrested. Their disclosure statements were recorded and personal search were conducted and co-accused Amzad and Abdul Wasim had also joined the criminal conspiracy with accused Sahista and Naseem and in furtherance of their common intention, they caused the death of Tasleem. The weapons of offence i.e. daggers were seized. After completion of the investigation, the charge-sheet was filed against the accused persons. "
3. The prosecution examined 26 witnesses in all. The statements of the respondent no. 2 to 5 were recorded under Section 313 of the Code of Criminal Procedure wherein they pleaded innocence and claimed to be tried.
4. Mr. Arjun Singh Bhati, learned counsel appearing on behalf of the appellant contended that the Trial Court had committed grave error in holding the respondents not guilty of the offence under Section 302 of the Indian Penal Code. He further contended that the impugned judgment is erroneous and unsustainable and the same is liable to be set aside.
5. Counsel further submitted that the findings recorded by the learned Trial Court are not based on proper appreciation of the evidence on record and, in fact, they are perverse and totally untenable.
6. Learned counsel for the appellant while placing reliance on the testimony of PW-13 Shama contended that the Additional Sessions Judge did not appreciate the settled position of law and has overlooked the fact that conviction can be made on the sole testimony of a witness. He further contended that the present case is based on the testimony of PW-13 who is an eyewitness to the incident which is sufficient in itself to convict the respondents no. 2 to 5.
7. To substantiate his arguments learned counsel for the appellant has relied upon Sunil Kumar Vs. The State Govt. of NCT of Delhi reported in 2003 (11) SCC 367 wherein the Hon'ble Supreme Court in para 8 held as under:
8. With regard to the reliability of a child witness, learned counsel for the appellant has relied upon Nivrutti Pandurang Kokate and ors. Vs. State of Maharashtra reported in (2008) 12 SCC 565 wherein the Hon'ble Supreme Court in para 7 and 8 made the following observation:
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 these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States 159 US 523. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
8. In Dattu Ramrao Sakhare vs. State of Maharashtra (1997) 5 SCC 341 it was held as follows: (SCC p. 343, para 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."
9. Miss. Aashaa Tiwari, learned Additional Public Prosecutor for the State adopted the same submissions as made by Mr. Arjun Singh Bhati, learned counsel appearing on behalf of the appellant.
10. We have heard the learned counsel for the parties and perused the material on record.
11. The learned Trial Court while acquitting the respondents made the following observations: "41. Now, as deposed by PW13 Shama, if co-accused Sahista (mother of PW-13 Shama) was seeing the incident from the window grill and she came down-stairs and witnessed the occurrence as claimed by PW-13 Shama, her natural reaction would have been that she would have screamed or cried (as res gestae) but there is no assertion by PW-13. It cannot be believed that she had actually tried to scream when her mother Sahista (co-accused) had kept her hand on her mouth and did not allow her to scream. In case, statement of PW-13 is believed that co-accused Sahista mother of the witness was seeing the incident from window grill, then the witness (PW-13) would have not been seen by co-accused Sahista as she was allegedly peeping from the window grill and obviously PW-13 could have seen the occurrence from the back side of coaccused Sahista and the moment, she saw alleged occurrence, she would have instantaneously screamed or cried, which has not been claimed by PW-13.
42. In her cross-examination, PW-13 Shama claims that she was living with PW-4 Saleem (her tau) prior to last three months from the date when she deposed in the court. She admits that she does not know as to when the assailants had come to room of her father and when they left. If she had witnessed the occurrence, she would have certainly known the time when the assailants ran away. As per the record, telephone operator of PS Bhajanpura had given an information about a quarrel on 03.08.2008 at 4.20 AM, on which, ASI Baldev Raj reached at the spot and found injured Tasleem lying in a pool of blood who was dead. He recorded the statement of Sahista, the co-accused and wife of deceased Tasleem as Ex.PW22/A. He made his endorsement on the same Ex.PW22/B and sent rukka through Ct. Hawa Singh for registration of the case. The time of occurrence was mentioned as 3.45 AM. The rukka was sent at about 6.30 AM, on which, the FIR was got registered. PW-1 Tahira has stated the time of occurrence as 3.30 AM to 3.45 AM. PW-2 Mashooq has given the time of occurrence as 4.00 AM. Whereas, PW-4 Saleem has stated the time of occurrence at about 3.45 AM to 4.00 AM and admittedly, he got the information only through PW-2 Mashooq which indicates that the time of alleged occurrence was before 4.00 AM. However, PW-13 Shama deposed that it was one hour before sun-rise. The normal time of sun-rise in the month of August is around 6 to 7 AM and therefore, according to PW-13 Shama, the time of occurrence will be around 5.00 AM, which also suggest that she had not witnessed the occurrence. Moreover, none of the PWs i.e. PW-1 Tahira, PW-2 Mashooq and PW-4 Saleem in their testimonies have corroborated about the presence of PW-
13 Shama in the room of the deceased Tasleem, at the time when they went to the room of deceased. PW-13 Shama admits that she disclosed the entire incident to PW-4 Saleem (her tau) within 4-5 days of the occurrence, although, she did not disclose the facts to him on the same day but she also admitted that she had gone to her village at Ghasoli, District Muzaffar Nagar, U.P. on 04.08.2008 and lived there for next six months. The date of alleged incident is the night intervening 2/3.08.2008 but she also claims that she had gone to her native on 04.08.2008, where, she had been living for subsequent six months and therefore, the 4/5th day subsequent to the occurrence would have fallen on 6/7th August 2008 and therefore, if she was continuously living at the native place from 04.08.2008 till next six months, there was no occasion for her to disclose these facts to her 'tau' on or around 6/7th August
2008. It is not the case of prosecution that either PW-13 Shama visited PW-4 Saleem or viseversa.
43. PW-13 Shama also admits that the place where the dead body of his father was lying is not visible from the roof of the house. She claims that when she saw her father for the first time at the time of incident, he was conscious and he was in his own room but this fact has not been corroborated by any other PW i..e PW-1 Tahira, PW-2 Mashooq and PW-4 Saleem. If Tasleem was conscious, any of the PW would have inquired from him about the assailants and those facts would have been deposed by other PWs in the Court.
44. PW-13 Shama is unable to state as to how the deceased Tasleem went from his room to the place in front of room of Mashooq. If she had actually witnessed the occurrence, she would have also noticed the manner how the deceased went to the place in front of room of Mashooq from the room where, the deceased was sleeping. If PW-13 Shama had actually witnessed the occurrence and involvement of accused Sahista (who is her mother and wife of deceased Tasleem), she would have definitely disclosed the facts to PW-4 Saleem (her tau) immediately, when PW-4 came at the spot, because at that time none of the assailant was present at the spot and it cannot be believed that this witness could not disclose the facts to PW-4 due to any fear of accused Sahista or other co-accused and in case, these facts were disclosed by her to PW-4 Saleem subsequently after fourfive days of the incident, then PW-4 would have insisted before SHO/IO to record her supplementary statement and in case of denial or refusal, PW-4 could have approached the senior police officers such as ACP, DCP etc. or could have sent a written complaint or telegram but no such steps were taken."
12. The case of the prosecution rests on the testimonies of PW-1 Ms. Tahira, PW-2 Masooq and PW-13 Shama.
13. It is pertinent to mention that PW-1 Ms. Tahira and PW-2 Masooq who were the alleged eyewitnesses turned hostile.
14. PW-13 Shama in her testimony deposed as under: “ I have studied upto 7th Class. I left school after the death of my father on 2nd August 2008. I alongwith my sister Sana, 11 years and brother Uvejh, 8 years used to sleep with my mother on the roof. My mother is present in court today. My brother Suhail, 9 years used to sleep with my father in the room on the 2nd floor. My mother used to keep the mobile phone of my father with her in the night for using the same as alarm for getting up early in the morning to get us ready for the school. On 2.8.2008, in the night, I heard the voice of my father “mar diya- mar diya”, I went downstairs and saw accused Naseem, Amzad and Wasim were stabbing my father with knife, the accused persons are present in the court today (The witness is correctly identified the accused persons by name) The light of the room was on and I saw from the stairs. My mother was seeing the incident from the window grill. When, I tried to scream my mother kept her hand on my mouth and told me that in case I scream they will kill you. Thereafter, she took me to the roof and got deleted the number of Nasim from the mobile phone of my father, which my mother was having on that night. I tried to go near my father but my mother did not allow me to go near him. After about one hour, she received the telephonic call of accused Nasim and she replied that you may go “ye to thanda ho gaya” When police came, my mother make all of us (brothers and sisters) sit in the room of Mashooq. Thereafter, when we went to the village for burial of my father, my mother and Nasim both threatened us that in case we disclosed to anyone, they will kill us. The mobile phone connection number of my father was
9312907116. I know the mobile telephone number of Nasim ie
9319480172. I had told these facts to the police. I do not know whether police recorded my statement.”
15. PW-13 in her cross examination stated as under: “.... I am living with my Tau namely Sh. Salim. He lives in Delhi. I do not know the house number but it is in Gali no. 10, Subhash Mohalla, Bhajanpura, Delhi. xxxx I did not stated to the police that on 3.8.2008, day of Sunday in the night my mother alongwith all brothers and sisters were sleeping at the roof as usual. (Confronted with statement Ex.PW-13/DX[1] where it is so recorded.) I had stated to the police that my younger brother Suhail sometimes used to sleep with my father in the room. I had stated to the police that my mother used to keep the mobile of my father with her because we were going to school. I had stated to the police that I have heard on the night of 2.8.2008, the voice of my father “mar diya- mar diya” (Confronted with statement Ex.PW-13/DX[1] where it is not so recorded.) I had stated to the police that I saw Nasim, Amzad and Wasim stabbing my father with knife. (Confronted with statement Ex.PW-13/DX[1] where it is not so recorded.) I had stated to the police that the light of the room was on and I saw from the stairs. My mother was seeing the incident from the window grill. When, I tried to scream my mother kept her hand on my mouth and told me that in case I scream they will kill you. (Confronted with statement Ex.PW-13/DX[1] where it is not so recorded.) I had stated to the police that she took me to the roof and got deleted the number of Nasim from the mobile phone of my father, which my mother was having on that night. I tried to go near my father but my mother did not allow me to go near him. I had stated to the police that after about one hour, she received the telephonic call of accused Nasim and she replied that you may go “ye to thanda ho gaya”(Confronted with statement I had stated to the police that when police came, my mother make all of us (brothers and sisters) sit in the room of Mashooq. (Confronted with statement Ex.PW-13/DX[1] where it is not so recorded.) I had stated to the police that when we went to the village for burial of my father, my mother and Nasim both threatened us that in case we disclosed to anyone, they will kill us. I had stated to the police that mobile phone connection number of my father was 9312907116. I know the mobile telephone number of Nasim ie 9319480172. (Confronted with statement Since the time I am living with my Tau, I am never left alone. Someone or other always remained with me. My three other brothers and sisters namely Sana, Uvejh, Suhail are living with my Tau who lives at the Ghasoli, Dist. Mujjafarnagar, UP. They keep visiting my Tau Salim with whom I am living with. xxxx I did not inquire from my Tau whether he had made any complaint in writing before any authority to cite me as the eye witness in this case. I had come to the court on five dates of hearing regularly. I did not make any complaint to the court regarding the same during my visit to the court. It is wrong to suggest that I did not make any complaint to the court since I was not the eye witness of the case and I am stating at the instance of my Tau Salim. It is correct that whenever I have come to the court I have come with my Tau Salim. xxxx It is correct that the room where my father was living was not visible from roof. xxxx I did not hear any voice of my brother who was sleeping with my father. After half an hour from hearing the voice of my father, when I entered in the room of my father my brother was awake. I had conversation with my brother Suhail on coming to the room. Vol. He had identified the accused persons. Again said I had not conversation with my brother in the room. My brother Suhail was standing in the staircase in between the room of my father and room of Mashooq. Tahira and Mashooq were standing on the door of their room. They did not hear the conversation between me and my brother Suhail. I came from the roof after hearing the voice of my father after half an hour to the stair which is in between the room of my father and the room of Mashooq. I saw the dead body of my father outside the room of Mashooq. The blood was scattered outside the room of Mashooq."
16. The law with regard to testimony of a child witness is well settled in a catena of cases. The Hon'ble Supreme Court in Ratansingh Dalsukhbhai Nayak Vs. State of Gujarat reported in 2004 SCC (Crl.)7 has observed in paras 6 and 7 as under:
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 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 are liable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
17. Undoubtedly, the answer to 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 it is perverse, it is apparent 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, shaken 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.
18. As far as the charge under Section 120B of the Indian Penal Code is concerned, it is a well settled law that when there is no evidence on record which shows involvement of the accused as a co-conspirator in the commission of offence or that he had entered into a criminal conspiracy with other co-accused and in pursuance of such criminal conspiracy offence is committed, then the accused is not liable to be convicted under Section 120B of the Indian Penal Code.
19. We find that the Trial Court has considered the circumstances as detailed in paragraph 11 of the judgment which has been reproduced above and have discussed each circumstance to hold that the prosecution has failed to prove that the respondent Nos. 2 to 5 had committed the murder of the deceased, Taslim.
20. Keeping in view the above settled position of law and the facts and circumstances of the present case, we are of the considered view that the evidence of PW-13 Shama (child witness) has no credibility and does not reveal a truthful approach and her evidence appears to be tutored by the appellant. PW-13 did not withstand the cross-examination as there were material improvements and exaggerations. Furthermore, she has not stuck to her statement made during Investigation in all material particulars. That being so, the trial court was justified in not relying on her testimony.
21. For the reasons stated above, we find no ground to interfere in the judgment of the Trial Court. The appeal is without any merit and the same is dismissed.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J JULY 8, 2016 msr