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Murder Case – Suppression of genesis of the case – entitled for benefit of doubt – Father killed his two children by silting their throat with a blade – No eye witness – alleged incident said to be happen in the house – no one heard the crys of children – accused not escaped – Prosecution failed to establish any link and the story of police not believable as they suppressed the genesis of the case – Accused is entitled for the benefit of doubt – Apex court set aside the conviction and acquitted the accused = RADHEY SHYAM … APPELLANT Versus STATE OF RAJASTHAN … RESPONDENT = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41249

Murder Case – Suppression of genesis of the case – entitled for benefit of doubt – Father killed his two children by silting their throat with a blade – No eye witness – alleged incident said to be happen in the house – no one heard the crys of children – accused not escaped – Prosecution failed to establish any link and the story of police not believable as they suppressed the genesis of the case – Accused  is entitled for the benefit of doubt – Apex court set aside the conviction and acquitted the accused =

On 24/2/1997,  the

appellant cut the throats of his children Rakesh and Rajkanta with  a  blade

in the house of his in-laws where he was staying for his treatment.  He  was

suffering from tuberculosis.  According to the  prosecution,  this  incident

was witnessed by Banwari, the  brother-in-law  of  the  appellant.   Banwari

informed about it to his brother  Kajod,  who  had  come  from  the  market.

Kajod found Rakesh dead.  Rajkanta was alive and was  in  pain.  Kajod  took

her to the doctor and the doctor  declared  her  dead.   Kajod  lodged  FIR.=

Apex court conclusion 

if  the  appellant  had  committed  such  a

heinous crime he would continue to sit in  the  room.   His  first  reaction

would have been to run away.  It is also difficult to appreciate as  to  how

those who had gathered at the scene of offence kept quiet after seeing  such

a gruesome crime.  The reaction of the people would have been  to  take  him

to the police station.  The prosecution is heavily relying on the fact  that

the appellant was alone in the room along with the children and no one  else

could have gone inside the  room  to  kill  the  children.   Normally,  this

argument would have impressed us if  the  prosecution  had  established  the

other circumstances to the hilt.  But in this case the prosecution  has  not

established even a single circumstance beyond doubt.  We are of the  opinion

that the prosecution has suppressed the genesis of the case.   The  incident

does not appear to have happened in the  manner  in  which  the  prosecution

wants the court to believe it had happened.  The police came  to  the  scene

after about one hour. As to what happened in  between  is  anybody’s  guess.

The story of alleged dying declaration of Rajkanta is not established.   The

discovery of blade from the almirah is not established and has rightly  been

rejected  by  the  trial  court.   The   panch   witness   turned   hostile.

Resultantly, the recoveries are not established.  PW-13 Vimala, the wife  of

the appellant, categorically stated that the appellant  loved  his  children

and he was a normal person.  His conduct prior  to  the  incident  does  not

suggest guilty mind.  He fed his children Jalebi and  Kachodi.   He  ordered

tablets for Rakesh because he had high fever.  The injuries suffered by  the

children are so grave that the children would  have  raised  cries.   Nobody

has stated that they heard any cries.  The story that the child witness  saw

the incident through  the  hole  is  difficult  to  digest.  No  independent

witness has been examined and the evidence of all the witnesses  is  replete

with inconsistencies. All these circumstances  make  the  prosecution  story

doubtful.  The appellant, therefore, must be given benefit of doubt. In  the

circumstances we set aside the impugned order.  The  appellant  is  directed

to be released forthwith unless required in any other case.

 

19.   The criminal appeal is disposed of in the afore-stated terms.

 

2014(Feb.Part) judis.nic.in/supremecourt/filename=41249

RANJANA PRAKASH DESAI, MADAN B. LOKUR

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 593 OF 2005
RADHEY SHYAM … APPELLANT

Versus

STATE OF RAJASTHAN … RESPONDENT
JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellant was convicted by Additional Sessions Judge Kota,
Rajasthan for offence punishable under Section 302 of the IPC. He was
sentenced to life imprisonment.

2. In short, the case of the prosecution is that on 24/2/1997, the
appellant cut the throats of his children Rakesh and Rajkanta with a blade
in the house of his in-laws where he was staying for his treatment. He was
suffering from tuberculosis. According to the prosecution, this incident
was witnessed by Banwari, the brother-in-law of the appellant. Banwari
informed about it to his brother Kajod, who had come from the market.
Kajod found Rakesh dead. Rajkanta was alive and was in pain. Kajod took
her to the doctor and the doctor declared her dead. Kajod lodged FIR.
Investigation was started. The appellant was arrested. After completion
of the investigation, the appellant came to be charged under Section 302 of
the IPC. In support of its case, prosecution examined 14 witnesses. PW-2
Banwari is the eye-witness. He is a child witness. His evidence is
material to the prosecution. The appellant pleaded not guilty to the
charge. He stated that he was falsely implicated in the case, because his
relations with his wife’s family were strained.

3. Shri Santosh Mishra, learned counsel appearing for the appellant
submitted that the entire case rests on the testimony of a child witness.
The child witness’s evidence has to be carefully scrutinized and, only if
it is found reliable, it can be accepted. He submitted that PW-2 Banwari’s
evidence does not answer the test laid down by this Court in numerous
judgments and, hence, no reliance can be placed on him. In support of this
submission, counsel relied on Rameshwar s/o. Kalyan Singh v. The State of
Rajasthan[1], Panchhi & Ors. v. State of U.P.[2], Ratansinh Dalsukhbhai
Nayak v. State of Gujarat[3] and Raj Kumar v. State of Maharashtra[4].
He submitted that the entire incident appears to be inherently improbable.
If throats of two children were cut with a blade, they would have raised
loud cries and that would have brought the neighbours to the room. Counsel
submitted that there are inconsistencies in the evidence of the witnesses.
The story that PW-2 Banwari saw the incident through the hole of the door
is difficult to digest. Counsel submitted that recovery of blade from the
possession of the appellant is also not proved. Motive is also not
established. In the circumstances benefit of doubt must be given to the
appellant, who is in jail for about 19 years.

4. Shri Milind Kumar, learned counsel for the State, on the other hand,
submitted that child witness PW-2 Banwari inspires confidence. It is
established that the appellant was alone in the room with his children and,
hence, none else but he can be held responsible for their murder. Counsel
pointed out that pertinently on the clothes of the appellant, blood was
found. The blood group of those stains matched with that of the blood
found on the clothes of deceased Rajkanta. This indicates that the
appellant killed his children. Counsel submitted that, therefore, the
conviction and sentence of the appellant be confirmed.

5. The post-mortem notes make it clear that the throats of the children
were cut. We have gone through the evidence rather minutely because we
felt that the approach of the trial court and the High Court was not right.
We shall therefore briefly refer to the evidence.

6. There is no challenge to the prosecution case that at the material
time, the appellant was staying in his in-law’s house with his
children. PW-1 Kajod stated that on the date of incident at about 2.00
p.m., the appellant sent him to bring Kachodi and Jalebi. Within half an
hour, he came back. Since deceased Rakesh had high fever, the appellant
told him to bring a tablet from the shop. When he came back with a tablet,
he saw a crowd gathered in front of his house. The appellant was holding a
blade in his hand and throats of Rakesh and Rajkanta had been cut.
Rajkanta was in pain. He lifted her and took her to Dr. R.N. Khan, where
she was declared dead. He brought her home. He then gave his statement to
the police. In his cross-examination he stated that his sister and mother
had gone to the market. He added that his sisters PW-3 Suganya and PW-10
Nati had gone to the market and when he went to purchase the tablet there
was no one present at home except the appellant and his children Rakesh and
Rajkanta. When his police statement was shown to him, he stated that he
could not say why the fact that he had seen a blade in the appellant’s hand
was not recorded by the police. He then stated that he did not see the
blade in the appellant’s hand. He denied that the police recovered the
blade from the almirah. He added that the blade was in possession of the
police. He stated that when he came back, the appellant was sleeping and
there was blood on his clothes. He stated that blood stained clothes of the
appellant were seized and he signed on the panchnama. He changed his
version and stated that the police did not seize and seal the blood stained
clothes of the appellant before him. He clearly admitted that he had not
actually seen the appellant cutting the throats of the deceased but he got
to know about it from the people. Therefore, this witness is not an eye
witness. While in examination-in-chief, he states that he had seen the
appellant holding a blade in his hand, in the cross-examination, he denies
having seen a blade in the appellant’s hand. His case that his sisters had
gone to the market is not consistent with the evidence of PW-2 Banwari, the
eye-witness as we shall soon see. He stated that he had conversation with
deceased Rajkanta when he was carrying her to the doctor and she named the
appellant as her assailant, but this fact is not noted in his police
statement. He has denied that blood stained clothes of the appellant were
seized in his presence, thus making the panchnama on which he is stated to
have signed a fabricated document.

7. PW-2 Banwari is a child witness. He was ten years old when he gave
evidence. Before we proceed to his evidence, we must refer to the
judgments of this Court on which reliance is placed by the counsel to show
how child witness’s evidence is to be appreciated.

8. In Ratansinh Dalsukhbhai Nayak, this Court considered the evidentiary
value of the testimony of a child witness and observed as under:

“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, 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.”

9. In Panchhi, after reiterating the same principles, this Court
observed that the evidence of a child witness must be evaluated more
carefully and with greater circumspection because a child is susceptible to
be swayed by what others tell him and, thus, a child witness is an easy
pray to tutoring. This Court further observed that the courts have held
that the evidence of a child witness must find adequate corroboration
before it is relied upon. But, it is more a rule of practical wisdom than
of law. It is not necessary to refer to other judgments cited by learned
counsel because they reiterate the same principles. The conclusion which
can be deduced from the relevant pronouncements of this Court is that the
evidence of a child witness must be subjected to close scrutiny to rule out
the possibility of tutoring. It can be relied upon if the court finds that
the child witness has sufficient intelligence and understanding of the
obligation of an oath. As a matter of caution, the court must find
adequate corroboration to the child witness’s evidence. If found, reliable
and truthful and corroborated by other evidence on record, it can be
accepted without hesitation. We will scrutinize PW-2 Banwari’s evidence in
light of the above principles.

10. PW-2 Banwari stated that on the date of incident his sisters PW-3
Suganya and PW-10 Nati were at home. PW-1 Kajod was also there. The
appellant and his children were in the house. At about 1.00 p.m., Kajod
was sent to bring Jalebi. He was sitting outside the house. According to
him PW-3 Suganya was also sitting outside the house. At that time, his
cousin came there and asked for a matchbox. He went to the house to bring
the matchbox. From the hole of the door he saw the appellant cutting the
necks of Rakesh and Rajkanta with a blade. He then opened the door by
inserting his fingers through the hole. He saw the appellant cutting the
neck of deceased Rakesh. He went to call his sister PW-3 Suganya.
According to him, the appellant cut the neck of Rajkanta while he had gone
to call his sister PW-3 Suganya. Both his sisters rushed to the room. PW-1
Kajod also came there. Upon arrival of PW-1 Kajod, he told him the entire
story. In the cross-examination, he again reiterated that PW-3 Suganya and
PW-10 Nati were present near the scene of offence. They were sitting with
him outside the house. Thus, there is a glaring discrepancy in the
evidence of PW-1 Kajod and this witness as regards presence of PW-3 Suganya
and PW-10 Nati near the scene of offence at the time of incident. His
version that he saw the incident through the hole of the door does not
inspire confidence. He has changed his version frequently. At one stage,
he says that when he went to bring the matchbox, he peeped through the hole
of the door and saw necks of Rakesh and Rajkanta being cut. Then he says
that he opened the door by inserting his fingers through the hole and saw
the appellant cutting the throat of Rakesh and when he went to call his
sister, the appellant cut the throat of Rajkanta. A doubt is, therefore,
created as to whether he really saw the incident. Moreover, if the throats
of two children were cut, it is inconceivable that he would not have heard
cries of the children. It is also difficult to accept that at that time,
his cousin came there to ask for a matchbox and he went to the house to
bring the matchbox. This story appears to have been created to establish
that PW-2 Banwari went to the house and saw the incident through the hole
of the door. In such a situation, when it is difficult to place reliance
on the testimony of a child witness, it is necessary to look for
corroboration to his evidence from other witnesses. We find that the other
prosecution witnesses do not corroborate the evidence of PW-2 Banwari, at
all, as we shall soon see. It is, therefore, very difficult to rely on PW-
2 Banwari’s evidence.

11. PW-3 Suganya stated that at about 2.30 p.m. the appellant was
sleeping in her maternal house at Kotdi. Deceased Rakesh and Rajkanta were
playing near him. At that time she, her sister PW-10 Nati and children
were present there. The appellant asked for Jalebi and Kachodi. PW-1
Kajod went and brought Jalebi and Kachodi. The appellant ate them and gave
some to his children Rakesh and Rajkanta. According to her, Rajkanta had
fever and, therefore, the appellant had sent PW-1 Kajod to bring tablets.
When she went inside the room, the appellant sent her away. He told her
younger sister PW-10 Nati that he wanted to ease himself and, therefore, PW-
10 Nati should stay outside. PW-10 Nati then sat in the courtyard along
with the children. After that, the appellant shut the door. Thereafter,
when she went with a tablet to the house, PW-10 Nati told her that as the
appellant wanted to ease himself she should not go inside. She, therefore,
sat outside the house. Thereafter, her cousin Man Singh came there. He
wanted a matchbox. PW-2 Banwari went to the house to bring the matchbox.
PW-2 Banwari saw through the hole of the closed door the appellant cutting
the throat of his daughter with a blade. Thereafter, he unbolted the door
by putting his fingers inside. He then screamed that the appellant had cut
the throats of the children and called her. She rushed to the room. She
saw the appellant sitting inside the room after cutting the throats of his
children. There was blood in the room. Clothes of the appellant were also
blood stained. When she entered the room, she did not see anything in the
hands of the appellant. She saw a blade lying there. According to her, PW-
1 Kajod took the children to the hospital but the children were dead. She
admitted that she went to the room after PW-2 Banwari called her and she
had not seen anything before that. It is clear from PW-3 Suganya’s
evidence that she is not an eye-witness. Her version differs from that of
PW-2 Banwari. PW-2 Banwari stated that he saw Rakesh’s throat being cut.
He went to call PW-3 Suganya. By that time, the appellant had cut the
throat of Rajkanta. PW-3 Suganya stated that PW-2 Banwari saw that the
appellant had cut the throats of the children. He screamed and,
thereafter, she rushed to the house.

12. PW-7 Prithviraj turned hostile. He did not support PW-1 Kajod’s
version that he accompanied PW-1 Kajod to the doctor when PW-1 Kajod
carried Rajkanta to the doctor; that he was present when the incident took
place and that he saw the chopped throats of the deceased children. PW-10
Nati, the sister of PW-1 Kajod also turned hostile. She went to the extent
of saying that she did not know who killed Rakesh and Rajkanta.

13. PW-12 Tej Singh, the Investigating Officer gave a new twist to the
prosecution story. He stated that while in custody, the appellant gave
information that he had hidden a blade in the upper section of an almirah
situated in the room. He recorded the said statement and, pursuant to the
said statement, he seized the blade, which was kept in the almirah and
sealed it. This is contrary to the evidence of PW-1 Kajod that the blade
was in the hand of the appellant and the evidence of PW-3 Suganya that the
blade was lying in the room. He also stated that the appellant was
admitted in the hospital because he was unwell. However, he admitted that
no hospital record was produced by him about the admission of the appellant
in the hospital. He stated that he did not know whether there were any cut
marks or abrasions on the fingers of the appellant. PW-13 Vimala is the
wife of the appellant. Her evidence gives a set back to the prosecution
case. She stated that she went to the market leaving her deceased children
with the appellant. According to her, she rushed to the house when the
police told her that the appellant had cut the throats of her children.
Surprisingly, in the cross-examination, she stated that the appellant used
to love her children very much and that he was also not angry with her.
She further stated that the appellant was a normal person and was not
suffering from insanity.

14. Upon a careful perusal of the evidence on record, we feel that there
are too many drawbacks in the prosecution case. Firstly, we find the
prosecution story to be inherently improbable. The post-mortem notes of
the deceased children show that their throats were badly cut. The injury
of Rajkanta is described as under:

“Incised wound 13”x1”xTr.cut Tr.upto cervical vertebral column
in front of neck middle region cutting all structures including
muscles, vessels, nerves, trachea & Oesophagues etc. Bleeding
profusely & soft red clots present.
The cause of death was shock as a result of ante mortem injury
to neck leading to haemorrhage.”
The injury of Rakesh is described as under:

“Incised wound 8”x1”xTr.cut Tr.upto vertebral column (Cervical)
x 1.1/2” cutting all structures including muscles, vessels, trachea,
Oesophagues & nerves etc. Bleeding profusely & soft red blood clots.
The cause of death was shock as a result of ante mortem injury
to neck leading to haemorrhage.”
There is nothing to suggest that the children were drugged. If the
appellant had cut the throats of the children in such a brutal manner
leading to above-mentioned serious injuries, the children would have raised
loud cries drawing attention of PW-2 Banwari and his sisters PW-3 Suganya
and PW-10 Nati to the house. Neighbours would have also rushed there. It
is inconceivable that the appellant would carry out such a sinister
operation within a short span, quietly without drawing attention of people
sitting outside. Moreover, while the appellant was cutting the throat of
one child, the other child would have reacted and tried to stop him. The
children would certainly have resisted the attempt in their own way. The
appellant is stated to have used a shaving blade which had sharp edges on
both sides. In the scuffle which must have ensued, the appellant must have
received injuries on his fingers. As already noted, the appellant was
admitted in a hospital but the Investigating Officer has not produced his
hospital record which could have shown injuries sustained by him on his
fingers. The prosecution story that blade was used by the appellant is
also not established. PW-1 Kajod stated that he saw the appellant holding
a blade in his hand. In the cross-examination, he stated that he did not
see a blade in the appellant’s hand, but it was in possession of the
police. PW-3 Suganya stated that she saw the blade lying in the room. PW-
12 Tej Singh, the Investigating Officer introduced an entirely new story.
He stated that the blade was discovered at the instance of the appellant
from the upper section of an almirah where the appellant had hidden it.
Thus, the prosecution case that the appellant used a blade is shrouded in
suspicion.

15. Another significant lacuna in the prosecution case is the
contradictory statements of PW-1 Kajod and PW-2 Banwari as regards presence
of PW-3 Suganya and PW-10 Nati in the house. While PW-1 Kajod stated that
they were not present, PW-2 Banwari stated that they were present and, in
fact, on seeing the incident, he called PW-3 Suganya to the house. If the
two sisters were present, there was no need for them to wait for a call
from PW-2 Banwari. The children’s cries would have made them run to the
house. It is, therefore, doubtful whether the deaths of Rakesh and
Rajkanta occurred in a manner in which the prosecution wants to project
they had occurred.

16. The appellant’s wife has gone on record to say that the appellant was
a normal person; that he was not suffering from insanity; that he loved her
children very much and that he was not angry with her. If the appellant
had killed her two children, she would never have given such a certificate
to him. PW-3 Suganya stated that the appellant sent for Kachodi and Jalebi
and when PW-1 Kajod brought them, he gave them to his children Rakesh and
Rajkanta. This happened just before the incident. PW-1 Kajod stated that
because Rakesh was having fever, the appellant sent him to buy tablets.
These are not signs of a person who would want to kill his children.
Nothing has been brought on record to suggest why the appellant killed his
children. The prosecution has failed to prove motive. It is true that if
there is eye-witness account, absence of motive is immaterial. But as we
have already noted the evidence of lone eye-witness i.e. child witness PW-2
Banwari does not inspire confidence. The other evidence on record is so
infirm that it cannot supply the required corroboration to his evidence.

17 It is the prosecution case that the clothes of the appellant were
blood stained and that blood group of the blood found on the clothes of
deceased Rajkanta was the same as the blood group of the blood found on the
clothes of the appellant. Blood found on the clothes of Rakesh is stated
to be of ‘O’ group. Pertinently, the pancha to the seizure panchnama under
which the clothes of the appellant and deceased children were seized, has
turned hostile. PW-1 Kajod who is signatory to the panchnama of seizure of
clothes denied that the clothes of the appellant were seized before him.
The blood groups of the appellant, deceased Rajkanta and deceased Rakesh
were not ascertained. To establish its case, the prosecution should have
brought on record blood group of the appellant, blood groups of the
deceased children and the medical record of the appellant from the hospital
in which he was admitted. Moreover, the prosecution case that the blood
found on the clothes of the appellant was of the same group as that of the
blood found on the clothes of Rajkanta, was not put to the appellant in his
statement recorded under Section 313 of the Criminal Procedure Code. This
is a most vital circumstance which, if established, would have linked the
appellant to the crime in question. It was obligatory on the part of the
prosecution to put it to the appellant so that he could have offered
explanation for the same. The prosecution failed to do so. This is a
serious lacuna which cannot be condoned.

18. It is also surprising that if the appellant had committed such a
heinous crime he would continue to sit in the room. His first reaction
would have been to run away. It is also difficult to appreciate as to how
those who had gathered at the scene of offence kept quiet after seeing such
a gruesome crime. The reaction of the people would have been to take him
to the police station. The prosecution is heavily relying on the fact that
the appellant was alone in the room along with the children and no one else
could have gone inside the room to kill the children. Normally, this
argument would have impressed us if the prosecution had established the
other circumstances to the hilt. But in this case the prosecution has not
established even a single circumstance beyond doubt. We are of the opinion
that the prosecution has suppressed the genesis of the case. The incident
does not appear to have happened in the manner in which the prosecution
wants the court to believe it had happened. The police came to the scene
after about one hour. As to what happened in between is anybody’s guess.
The story of alleged dying declaration of Rajkanta is not established. The
discovery of blade from the almirah is not established and has rightly been
rejected by the trial court. The panch witness turned hostile.
Resultantly, the recoveries are not established. PW-13 Vimala, the wife of
the appellant, categorically stated that the appellant loved his children
and he was a normal person. His conduct prior to the incident does not
suggest guilty mind. He fed his children Jalebi and Kachodi. He ordered
tablets for Rakesh because he had high fever. The injuries suffered by the
children are so grave that the children would have raised cries. Nobody
has stated that they heard any cries. The story that the child witness saw
the incident through the hole is difficult to digest. No independent
witness has been examined and the evidence of all the witnesses is replete
with inconsistencies. All these circumstances make the prosecution story
doubtful. The appellant, therefore, must be given benefit of doubt. In the
circumstances we set aside the impugned order. The appellant is directed
to be released forthwith unless required in any other case.

19. The criminal appeal is disposed of in the afore-stated terms.

……………………………………………..J.
(RANJANA PRAKASH DESAI)

 

……………………………………………..J.
(MADAN B. LOKUR)
NEW DELHI
FEBARUARY 25, 2014.
———————–
[1] AIR (39) 1952 SC 54
[2] (1998) 7 SCC 177
[3] (2004) 1 SCC 64
[4] (2009) 15 SCC 292

 

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