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Sections 366, 368/34 , Section 376(2)(g) , Section 307/34, Section 302/34 of the Indian Penal Code- Child Witness -Trial court convicted all accused under all counts – High court as regards appellant No.2 –Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan s/o Gobriya Bhil is partly allowed. their conviction u/s 376(2)(g) only is set aside.- objections – all the accused were not named in the FIR by Mohan (PW 1) and prosecutrix (PW 3) did not know the accused and learnt about their names only from their conversation. PW 6 was child witness and his testimony could not be accepted. – Apex court held that Though in the FIR only Gul Singh was named, in the statement of Sunder Lal (PW 6) to the police all other accused were immediately named . It is well settled that evidence of child witness cannot be rejected unless the same is tutored or unless the same is unreliable. In the present case not only the evidence of the child witness is reliable and not tutored, it is corroborated by other testimony. The complainant and prosecutrix have no axe to grind against the accused persons. The accused had the motive to kidnap Parubai and they trespassed into her house armed with various weapons and caused death of one family member and caused injuries to other family members and abducted the prosecutrix who was recovered after 4-5 days. All the accused have thus been rightly convicted and sentenced and as such dismissed the appeals = CRIMINAL APPEAL NO.667 of 2011 GUL SINGH @ GULIYA & ORS. ….. APPELLANTS VERSUS STATE OF M.P. & ANR. ….. RESPONDENTS = 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41927

Sections 366, 368/34 , Section 376(2)(g) , Section 307/34, Section 302/34 of the Indian Penal Code– Child Witness -Trial court convicted all accused under all counts – High court  as  regards  appellant  No.2  –Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan  s/o Gobriya Bhil is partly allowed. their conviction u/s 376(2)(g) only is set aside.- objections – all  the  accused were not named in the FIR by Mohan (PW 1) and prosecutrix  (PW  3)  did  not know the accused and learnt about their names only from their  conversation.  PW 6 was child witness and his testimony could not be accepted. – Apex court held that Though in the FIR only Gul  Singh  was named, in the statement of Sunder  Lal  (PW  6)  to  the  police  all  other accused were immediately named . It is well settled that evidence of child witness cannot be rejected  unless the same is tutored or unless the same is unreliable. In the present case not only the evidence of the child witness  is  reliable and not tutored, it is corroborated by  other  testimony.   The  complainant and prosecutrix have no axe to  grind  against  the  accused  persons.   The accused had the motive to kidnap Parubai and they trespassed into her  house armed with various weapons and caused death of one family member and  caused injuries to other family  members  and  abducted  the  prosecutrix  who  was recovered after 4-5 days.  All the accused have thus been rightly  convicted and sentenced and as such dismissed the appeals =

 “The appellants have preferred this appeal against the judgment  dated

07/10/1999 of the Vth Additional Sessions Judge, Indore, passed  in  Session

Trial  No.331/1998  by  which  the  appellants  have  been  convicted  under

Sections 366, 368 read with Section 34 of the Indian Penal Code to  rigorous

imprisonment for ten yeas and fine of Rs.1,000/-, in default of  payment  of

fine to rigorous imprisonment of six months, under Section 376(2)(g) of  the

IPC to rigorous imprisonment for ten years and fine of Rs.1000/- in  default

of payment of fine to further rigorous imprisonment  for  six  months  under

Section 302/34 to imprisonment for life and fine of Rs.1,000/-,  in  default

of payment of fine to further rigorous imprisonment  for  six  months;  and,

under Section 307/34 to rigorous imprisonment for five  years  and  fine  of

Rs.500/-, in default of payment of fine to rigorous imprisonment  for  three

months.   All  the  substantive  sentences  have  been   directed   to   run

concurrently.

The operative portion of the High Court judgment is as follows:

      ……The Appeal of Gul Singh @ Guliya is  dismissed  and  his  conviction

and  the  sentence  passed  against  him  are  maintained  except  that  his

conviction u/s 376 (2)(g) is altered  to  Sec.  376(1)  and  the  punishment

awarded thereunder is maintained; the appeal as  regards  appellant  No.2  –

Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan  s/o

Gobriya Bhil is partly allowed.  While their  conviction  u/s  366,  368/34,

302/34 and 307/34 and the sentence awarded thereunder are maintained,  their

conviction u/s 376(2)(g) is set aside.”=

Though in the FIR only Gul  Singh  was

named, in the statement of Sunder  Lal  (PW  6)  to  the  police  all  other

accused were immediately named.=

Learned counsel for the appellants  submitted  that  all  the  accused

were not named in the FIR by Mohan (PW 1) and prosecutrix  (PW  3)  did  not

know the accused and learnt about their names only from their  conversation.

 PW 6 was child witness and his testimony could not be accepted.=

We have carefully perused the record and find no reason  to  interfere

with  the  findings  recorded  by  the  courts  below  with  regard  to  the

conviction of the appellants for the murder  of  Mishribai  and  also  other

offences and also for the offence of rape committed by Gul Singh.   We  find

the evidence of Mohan (PW 1),  Sunder  Lal  (PW  6),  Setulbai  (PW  5)  and

prosecutrix (PW 3) to be credible.  The evidence of Sunder Lal  (PW  6)  who

is said  to  be  15-16  years  of  age,  also  inspires  confidence  and  is

corroborated by other evidence on record, particularly the evidence  of  the

prosecutrix.

It is well settled that evidence of child witness cannot be rejected  unless

the same is tutored or unless the same is unreliable. =

There is no rule or practice that in every  case  the  evidence  of

such a witness be corroborated before a conviction can be allowed  to  stand

but, however as a rule of prudence the court always finds  it  desirable  to

have the corroboration to such evidence from other  dependable  evidence  on

record.=

In the present case not only the evidence of the child witness  is  reliable

and not tutored, it is corroborated by  other  testimony.   The  complainant

and prosecutrix have no axe to  grind  against  the  accused  persons.   The

accused had the motive to kidnap Parubai and they trespassed into her  house

armed with various weapons and caused death of one family member and  caused

injuries to other family  members  and  abducted  the  prosecutrix  who  was

recovered after 4-5 days.  All the accused have thus been rightly  convicted

and sentenced.

13.   Accordingly, we do not find any ground to interfere.   The  appeal  is

dismissed.

2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41927

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.667 of 2011
GUL SINGH @ GULIYA & ORS. ….. APPELLANTS

VERSUS

STATE OF M.P. & ANR. ….. RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against the conviction and sentence of
the appellants under Section 302/34 of the Indian Penal Code (IPC) for the
murder of Mishribai for which they stand sentenced to life imprisonment
apart from conviction and sentence of appellant Gul Singh @ Gulia under
Section 376 IPC and conviction of appellants for other offences as
appearing from the operative part of the order of the trial Court and the
High Court which is clear from the impugned Judgment of the High Court as
follows :
“The appellants have preferred this appeal against the judgment dated
07/10/1999 of the Vth Additional Sessions Judge, Indore, passed in Session
Trial No.331/1998 by which the appellants have been convicted under
Sections 366, 368 read with Section 34 of the Indian Penal Code to rigorous
imprisonment for ten yeas and fine of Rs.1,000/-, in default of payment of
fine to rigorous imprisonment of six months, under Section 376(2)(g) of the
IPC to rigorous imprisonment for ten years and fine of Rs.1000/- in default
of payment of fine to further rigorous imprisonment for six months under
Section 302/34 to imprisonment for life and fine of Rs.1,000/-, in default
of payment of fine to further rigorous imprisonment for six months; and,
under Section 307/34 to rigorous imprisonment for five years and fine of
Rs.500/-, in default of payment of fine to rigorous imprisonment for three
months. All the substantive sentences have been directed to run
concurrently.

The operative portion of the High Court judgment is as follows:

……The Appeal of Gul Singh @ Guliya is dismissed and his conviction
and the sentence passed against him are maintained except that his
conviction u/s 376 (2)(g) is altered to Sec. 376(1) and the punishment
awarded thereunder is maintained; the appeal as regards appellant No.2 –
Roomal s/o Dalsingh Bhil, No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan s/o
Gobriya Bhil is partly allowed. While their conviction u/s 366, 368/34,
302/34 and 307/34 and the sentence awarded thereunder are maintained, their
conviction u/s 376(2)(g) is set aside.”

2. Case of the prosecution is that on the night intervening 24th
/25th of May, 1998, while Girdhari had gone to the farm of his employer for
driving the Tractor and other family members were asleep in his house, at
02.00 mid-night, the accused persons with a view to kidnap Parubai (PW 3),
arrived, armed with weapons like Dharia, Falia and Lathi and started
assaulting Setulbai, Mishribai, Mohan and Sunderlal. As a result of the
deadly assault, Mishribai succumbed to the injuries on the spot, Sunderlal
(PW 6) sustained a fracture in his hand, Mohan (PW 1) sustained injury on
his head and both shoulders and Setulbai (PW 5) also sustained two incised
wounds and two lacerated wounds,. Thereafter the accused persons dragged
away Parubai (PW 3). Later, she was subjected to rape.
3. Accordingly, First Information Report (FIR) was lodged by Mohan (PW
1) and the accused were apprehended. Though in the FIR only Gul Singh was
named, in the statement of Sunder Lal (PW 6) to the police all other
accused were immediately named. After investigation, the accused was sent
up for trial.
4. A post mortem was conducted on the body of Mishribai and the death
was found to be homicidal with following injuries :
“(1 )Incised wound on the forehead to nose on right side 2” x ½” x muscle
deep;
(2) Incised wound on the face over the upper lip 1” x ½” x cutting of
the lip;
(3) Incised wound on the chin 2” x ½” x bone deep;
(4) Penetrating wound on the right side of neck 1” x ½” x 1” cutting
carotid artery.”

5. Injured Mohan (PW 1) was found to be having following injuries :
“(1) Incised wound extending from neck to right shoulder to the left 15 x 1
cm x ?
(2) Incised wound over right ear extending to the skull 8 cm x 1 cm x ?
(3) Incised wound 2 cm x ½ cm x ? anterior to the left ear;
(4) Incised wound 2 cm x 1 cm x ? on occipital region;
(5) Incised wound 3 cm x 1 cm x ? over the occipital region;
(6) Incised wound 4 cm x 1 cm x ? over the occipital region.”

6. Parubai (PW 3) had following injuries :
“(1) Swelling on right temporal, chin margins tender; size 1” x 1”
(2) Abrasion with swelling anterior left side of knee 1” x 1”;

On internal examination there was an older tear of hymen 10, 6, 1 O’clock
margins tender in the region and vaginal slide was prepared for further
investigation.”

7. Fracture was also found on the hand of Sunder Lal (PW 6).
Prosecutrix was recovered by the police after 4-5 days of the incident.
She was also medically examined by Dr. Alka Verma
(PW 18) who found an injury on the right side of her head which was a
contusion 1” x 1”. She was complaining of pain. There was also an
abrasion on the left side of the knee measuring 1” x 1” and swelling. In
her internal examination, she found that her hymen was torn at 1, 6 and 10
O’clock position and the vulva had signs of injuries, but there was no
tenderness. She, therefore, opined that though there was evidence that
sexual intercourse had taken place with the prosecutrix, it could not be
stated with any exactitude whether she was subjected to recent intercourse.

8. Considering the evidence of injured witnesses, Sunder Lal (PW 6),
Mohan (PW 1), Setulbai (PW 5) and Parubai (PW 3) and other corroborating
evidence, the courts below have convicted and sentenced the appellants.
9. We have heard learned counsel for the parties.
10. Learned counsel for the appellants submitted that all the accused
were not named in the FIR by Mohan (PW 1) and prosecutrix (PW 3) did not
know the accused and learnt about their names only from their conversation.
PW 6 was child witness and his testimony could not be accepted.
11. Learned counsel for the State supported the conviction and sentence
of all the appellants.
12. We have carefully perused the record and find no reason to interfere
with the findings recorded by the courts below with regard to the
conviction of the appellants for the murder of Mishribai and also other
offences and also for the offence of rape committed by Gul Singh. We find
the evidence of Mohan (PW 1), Sunder Lal (PW 6), Setulbai (PW 5) and
prosecutrix (PW 3) to be credible. The evidence of Sunder Lal (PW 6) who
is said to be 15-16 years of age, also inspires confidence and is
corroborated by other evidence on record, particularly the evidence of the
prosecutrix.
It is well settled that evidence of child witness cannot be rejected unless
the same is tutored or unless the same is unreliable. In Prakash and Anr.
vs. State of Madhya Pradesh[1], it was observed :

“11………..We do not think that a boy of about 14 years of age cannot give a
proper account of the murder of his brother if he has an occasion to
witness the same and simply because the witness was a boy of 14 years it
will not be proper to assume that he is likely to be tutored.”

Again, in Dattu Ramrao Sakhare and Ors. vs. State of Maharashtra[2], it was
observed :

“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. There is no rule or practice that in every case the evidence of
such a witness be corroborated before a conviction can be allowed to stand
but, however as a rule of prudence the court always finds it desirable to
have the corroboration to such evidence from other dependable evidence on
record. In the light of this well-settled principle we may proceed to
consider the evidence of Sarubai (PW 2).”

In the present case not only the evidence of the child witness is reliable
and not tutored, it is corroborated by other testimony. The complainant
and prosecutrix have no axe to grind against the accused persons. The
accused had the motive to kidnap Parubai and they trespassed into her house
armed with various weapons and caused death of one family member and caused
injuries to other family members and abducted the prosecutrix who was
recovered after 4-5 days. All the accused have thus been rightly convicted
and sentenced.
13. Accordingly, we do not find any ground to interfere. The appeal is
dismissed.

…………………………….J.
[ V. GOPALA GOWDA ]

………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 16 , 2014
ITEM NO.1D-For Judgment COURT NO.14 SECTION IIA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 667/2011

GUL SINGH @ GULIYA & ORS. Appellant(s)

VERSUS

STATE OF M.P. & ANR. Respondent(s)
Date : 16/09/2014 This appeal was called on for JUDGMENT today.
For Appellant(s)
Mr. V. Ramasubramanian,Adv.
Mr. A. Lakshminarayanan, Adv.

For Respondent(s)
Mr. C. D. Singh,Adv.
Ms. Sakshi Kakkar, Adv.

Hon’ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising Hon’ble Mr. Justice V.Gopala Gowda and His
Lordship.
The appeal is dismissed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable judgment is placed on the file)
———————–
[1] (1992) 4 SCC 225
[2] (1997) 5 SCC 341

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