Reserved
Court No. - 48
Case :- CRIMINAL APPEAL No. - 7847 of 2006 Appellant :- Ramveer Respondent :- State of U.P.
Counsel for Appellant :- S.D. Kautilya,Bhavya Sahai,Brijesh Sahai,K.K. Singh,S.M.Upadhyay Counsel for Respondent :- Govt. Advocate
Hon'ble Anjani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
Heard Shri Bhavya Sahai, learned counsel for the appellant and learned AGA for the State.
This appeal is directed against the judgement and sentence of life imprisonment awarded to the appellant in Sessions Trial No.316 of 2005 under Sections 302 IPC.
An FIR was lodged on 08.05.2005 at 06.30 p.m. at police station Samsabad, District Farrukhabad regarding an incident that took place at 1 p.m. on that day.
The first information report was lodged by Maharaj Singh s/o of Late Sumer Lodhi alleging that his elder daughter Long Shree was married to one Ram Veer Singh. Ram Veer Singh wanted the younger daughter of the first informant, Sharmila, to be married to his younger brother but she had been married to one Kaushal Kishore s/o of Gopal Lodhi. For the last few days. Sharmila was residing in the house of Ram Veer Singh and despite requests by the first informant, was not prepared to let her go back. Even, 10 years old Ashutosh, son of the first informants' co-brother was residing there for the past several days. The son of the first informant, Nanhey Lal had gone to get his sister back. Ram Veer Singh wanted Sharmila to live with his younger brother. In this regard, an argument ensued between Ram Veer Singh and Nanhey Lal, during which Ram Veer Singh shot Nanhey Lal who fell down and died a little while later.
The first information report was registered under Section 302 IPC and after trial, the trial court convicted and sentenced the appellant as noticed above.
The prosecution has examined as many as 8 witnesses during the trial.
PW-1, Maharaj Singh, the first informant and father of deceased, Nanhey Lal, in his oral testimony stated that he had sent Nanhey Lal to the house of his son in law, Ram Veer Singh, to get his daughter Sharmila 3 or 4 days later, he was informed that somebody had shot and killed Nanhey Lal. When he went to the village Azizabad, he was informed by the villagers that his son had been shot by his son in law, Ram Veer Singh with a country made pistol and on their suggestion, the tehrir was transcribed by Jagunath. After the contents were read to him, he put his thumb impression thereon. This tehrir was submitted by him to the police station. He also stated that his co-brother Jadunath had not accompanied his son to the house of the accused appellant, Jadunath never told him that Nanhey Lal had been shot by Ram Veer Singh. This witness was declared hostile and was cross-examined.
During his cross-examination by the prosecution, he has admitted that accused Ram Veer Singh wanted Sharmila to be married to his younger brother Suwa Lal but this was opposed by him and his son, the deceased, resulting in a dispute between them. He has denied that his statement was ever recorded by the Investigating Officer. He has also denied the suggestion that he is deposing falsely to protect his son in law, Ram Veer Singh and that there has been a compromise between him and the accused.
In his cross-examination by the defence, he has stated that the report was lodged by him on the insistence of others and that he knows nothing of the incident as he was not present there.
PW-2, Long Shree, the wife of the accused Ram Veer Singh and the sister of the deceased Nanhey Lal, in her examination-in- chief stated that Nanhey Lal has come to collect Sharmila. At about 1 p.m. She and her sister hav gone out into the fields to ease themselves and on return they saw Nanhey Lal lying dead outside her house. He had been shot and was bleeding. A large number of villagers have collected on the spot. Ram Veer Singh had not shot Nanhey Lal.
Even this witnesses was declared hostile and was cross- examined. In her cross-examination by the prosecution, she had denied that Nanhey Lal had come to her place accompanied by his uncle Jadunath. She denied having informed her father about the death of her brother. She also denied that her father had lodged the first information report on the basis of the information given to him by her and her uncle Jadunath. She denied her statement recorded under Section 161 Cr.P.C. as also the suggestion that she was deposing to save her husband, the accused.
During cross-examination by the defence, she stated that she was not present at the spot at the time of incident and was not aware as to who shot Nanhey Lal.
PW-3, Sharmila wife of Kaushal Kishore is also sister of the deceased and according to the prosecution case, the main reason behind the incident. She has also stated that she, along with her sister Long Shree, had gone to the fields to ease themselves and on returning found Nanhey Lal lying dead by the villagers on their house. She denied any knowledge of as to who shot Nanhey Lal and she did not seen the shooting, even this witness could be declared hostile.
During her cross-examination by the prosecution, she had admitted that she was present in the house of her sister Long Shree at the time of incident and that deceased, Nanhey Lal, her brother had come to fetch her. She however denied that her uncle Jadunath or her brother (cousin) Ashutosh were present at the time of the incident. She also denied that Ram Veer Singh, her brother in law wanted to get her married to his younger brother. She denied having made any statement before the Investigating Officer as also the suggestion that she was deposing falsely to protect her brother in law, Ram Veer Singh.
During cross-examination by the defence, she denied her presence on the site of occurrence and also denied any knowledge of how the death occurred.
PW-4, Peru Singh, Head Muharir, Police Station Samsabad has proved his signature on the chik FIR as also the GD entries. In his cross-examination, he has stated that the first informant had come to the Police Station alone and had submitted a written application. He is unaware as to who is describe of the written information. The FIR was lodged in the presence of V.K. Yadav, the Investigating Officer. The Police proceeded to site of occurrence immediately after the FIR was lodged.
PW-5, Ashutosh s/o Jadunath aged about 11 years, according to the prosecution, one of the eye witness of the occurrence. He is student of class 5. He has stated that he has come to the Court to depose about the murder of Nanhey Lal, who was shot by Ram Veer by a tamancha. The incident took place about an year earlier. He and his father was both present in the house of the accused at that time. The incident took place at about 12 noon at 1 p.m. during that day. He has stated that the police never made any inquiries from him about the incident. His sister, Sharmila was also present and had seen the occurrence. Before the incident, there was a fight between Nanhey Lal deceased and Ram Veer Singh, accused.
During his cross-examination, he has expressed his ignorance about the report that was filed. He has stated that he went to Azizabad with his father. He knows Mahraj Singh, who is his Mausa. The dead body was taken away the same day for postmortem. He returned home the same day.
He has again stated that the police never met him or made any inquiry regarding the incident. Sharmila is his sister. His Mausa Maharaj Singh and his wife on receiving information reached the scene of occurrence that night. He does not remember the date of occurrence. He has been brought to the Court by his father, who told him that he needs to get his statement recorded. He has not received any summons from the Court. At the time of incident, he was studying in Class 3. Later, he stated that he was studying in Class 4. He has admitted that he is deposing on the asking of her father. He and his father returned home before Mahraj Singh and his wife and that he has never again gone to Azizabad. This was his first visit and he does not know any of residents of Azizabad. He has denied the suggestion that he has not seen the occurrence or is deposing on the tutoring of his father.
PW-6, Jadunath, the other eye witness as per the prosecution has denied having seen the occurrence. He has stated that he heard Ram Veer Singh had shot Nanhey Lal. He went to the house of Ram Veer Singh, on receiving information of the incident. He had gone to the house of Ram Veer Singh along with his son Ashutosh. This witness was declared hostile and during his cross-examination by the prosecution, he has denied the suggestion that he and his son Ashutosh were not present at the time of occurrence and had not seen it.
He also denied any inquiry having been made from him by the Sub Inspector as also the suggestion that he is deposing falsely as he is a relative of the first informant and the accused.
In his cross-examination by the defence, he has stated that on receiving information of the incident at about 2 p.m., he had gone to Azizabad with his son Ashutosh, where he saw the dead body of Nanhey Lal. He has also stated that he tutored his son Ashutosh and he must have deposed as tutored. On the date of occurrence, the age of his son Ashutosh was about 5-6 years and that now he is aged about 7-8 years old.
PW-7, Dr. M.P. Singh conducted the postmortem of the deceased on 09.05.2005 at about 2.15 p.m. The deceased was aged about 17 years. Both eyes were closed but mouth was partly open. Food material coming out from the mouth. Spots of dried was found / clotted blood were at places all over body.
A firearm wound of entry in size 3.50 x 3 cm over right side cheek. 7 cm Rt nipple turned at 5 O'clock position.The margins were inverted and lacerated. Its communicating exit wound was 2.5 cm x 2 cm on the right side of the back on the bottom angle of the scapula.
Abrasion 3x0.5 cm on the bone behind the left ear. The stomach contains 200 gms of food. Death occurred due to shock and excessive haemorrhage as a result of anti mortem injuries.
Upon internal examination, the right lung and its membranes were found torn and 400 milliliter of blood was present in the cavity. One wadding were also recovered from the right chest cavity.
He has opined that it was possible that the injury was caused at about 1 p.m. on 08.05.2005.
During cross-examination, he has stated that there can be a difference of six hours, as regards the time of death on either side. The symptoms present in a dead body after a day of death were present in the body. Shot was fired from a distance of 6 fit. No pellets were recovered from the body. The injuries were caused by a single shot. No tattooing was seen.
PW-8, SHO, Virendra Kumar Yadav, the Investigating Officer prepared the site plant, collected blood stained and plain soil, recovered the spent 12 bore cartridge and prepared the relevant memos. He recorded satement os Mahraj Singh, Jadunath, Ashutosh, Longshree and Sharmila, who had narrated the prosecution case. He also prepared the inquest and recovery memos and filed charge sheet against the accused. He arrested the accused during investigation.
During cross-examination, he has stated that no villagers were made witness in the inquest as none was present there. The inquest report was prepared by him at about 08.30 p.m. Smt. Gangawati was present on the spot being the Pradhan in the village.
No resident of village Azizabad was a witness in the inqeust as none was found present at home. The wife of the accused Longshree, Smt. Sharmila, Ashutosh s/o Jadunath and Jadunath himself were present on the spot. No other person was present.
He has not made any of the female family members, witness in the inquest. The 12 bore cartridge recovered from the spot was sent for forensic examination by his successor D.P.S. Tomar. He prepared the site plan on the pointing out of Long Shree and Sharmila. He denied the suggestion that he had not recorded the statements of PW1, Mahraj Singh, PW2 Longshree and PW3 Sharmila. On that their statements were prepared sitting in the police station.
He also denied that the statements of Ashutosh and Jadunath were not recorded in Azizabad on 09.05.2005. He has not recovered any pellets from the site of the occurrence nor any pellet marks were found on the walls of the room during inspection.
The statement of the accused was recorded under Section 313 Cr.P.C. on two separate occasions, namely, on 09.10.2006 and 21.11.2006. He has denied the allegation against him and has not stated anything in his defence.
The contention of counsel for the appellant is that the conviction of the appellant is based on the sole testimony of a child witness as all other prosecution witness of fact have turned hostile. Only this child witness has supported to depose the prosecution case. He was never deposed by the Court. This witness is also unaware of the date of the incident and has clearly stated that he is deposing on the asking of his father.
He has also vehemently argued that for a conviction to be based on the sole testimony of a child witness, it is mandatory for the Court concerned to form an opinion regarding the competence of the witness to depose. A child witness can be easily tutored and it is settled law that such testimony should be very closely scrutinized. In case, any evidence of tutoring is found the testimony of a child witness cannot be accepted. In any case, this testimony requires to be corroborated. Such is not the position in the case at hand. The other witnesses have turned hostile and therefore, testimony of a child witness without any corroboration, cannot be accepted.
The child witness is also unaware of the contents of the first information report. Even his father, PW-6, Jadunath has stated that he had tutored the child witness.
In support of his contention, reliance has been placed upon the following judgements -
1. Radhey Shyam Vs. State of Rajasthan (2014) 5 Supreme Court Cases 389.
2. P. Ramesh Vs. State Represented by Inspector of Police (2019) 20 Supreme Court Cases 593 in paragraph 13 and 16.
3. Hariom Alias Hero Vs. State of Uttar Pradesh (Full Bench) (2021) 4 Supreme Court Cases 345.
The alternative argument of counsel for the appellant is that the facts of the prosecution case reveal that the incident was a sudden quarrel and the offence would fall within the 4th exception of Section 300 IPC.
Under the circumstances, the offence would not travel beyond Section 304 IPC. The appellant has already undergone 6 years of incarceration as on date, though he is currently on bail.
In rebuttal , learned AGA has submitted that the incident took place at 1 p.m. and the FIR was lodged at 06.30 p.m. The distance of the site of occurrence from the police station is 10 kms.
As regards, the submission of counsel for the appellant is that the incident was a sudden quarrel, he has stated that from the allegations made in the first information report, it is clear that Sharmila was already married and yet the accused wanted her to live with his younger brother. He has also not permitting Sharmila to return home and it is this, which lead to the dispute between the accused and the deceased. Sharmila had been residing at the resident of the accused for the past 15 days and that even the child witness had been living there for the past four days prior to the incident.
He has next submitted that the site plan has been prepared by the Investigating Officer on the pointing out of Longshree, wife of the accused and Sharmila his sister in law. It is also clear from the site plan that the deceased was shot inside the house of the accused at close range and firearm injury was found on the body. This clearly shows that the shot was fired at the distance of 6 feet. This is also corroborated by the medical evidence. In these circumstances and since the accused had not been permitting Sharmila to go back home and the deceased had come to collect her, the same cannot be said to be an incident of a sudden quarrel.
His next submission is that although PW-1 has turned hostile, he has admitted the Tehrir and its contents. He has further submitted that the witness of the facts have turned hostile as they are related to one or other. PW-1 is father in law of the accused. PW-2 is his wife and PW-3 is sister in law. Therefore, they had an adequate reason to resile from the prosecution case do not support it.
He has also submitted that the medical evidence corroborates and supports the time of the incident mentioned in the FIR. He has also refuted the submission of counsel for the appellant that PW-5, Ashutosh, the child witness was tutored by his father.
Moreover, the death occurred in the house of the accused and the onus of explaining the circumstances, which led to the death were required to be explained by him. This is not being done and no explanation or counter case or a different version of the death has been set up by the accused in his statement under section 313 Cr.P.C. The judgement of the conviction and sentence awarded to the appellant is therefore, liable to be affirmed.
The main argument of the learned counsel for the appellant is that since nothing have been recorded as regards, the competence of the child witness to depose, his testimony, which is manifestly tutored by his father is not enough to record an order of conviction. It is in this context that the judgement has been cited by him.
The crux of the judgements cited best emerges from paragraph 22 of the decision in Hari Om @ Hero (supra). The said paragraph is reproduced below -
"22. At the outset, we must note the perspective from which the evidence of a child witness is to be considered. The caution expressed by this Court in Suryanarayana9 that "corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence" is a well-accepted AIR (1956) SC 441 (1973) 1 SCC 202 (2001) 9 SCC 129 (2010) 12 SCC 324 (2015) 7 SCC 167 principle. While applying said principle to the facts of that case, this Court in Suryanarayana9 observed:-
"5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross- examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. "
Thus, the authorities on the point are consistent that for a conviction to be based on the sole testimony of a child witness, the testimony should be scrutinized closely with care and caution to determine its quality and reliability.
It has also been observed in the portion extracted above that minor discrepancies in the statement vis-a-vis, the prosecution case would lead to an inference that the evidence is genuine and reliable. The Court is also required to rule out the possibility of any tutoring.
It would also be relevant to reproduce the paragraph 16 of the judgement rendered in P. Ramesh (supra), which reads as follows -
" 16. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the 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. 9 A child becomes incompetent only in case the court considers that the child was unable to understand the 8 (2004) 1 SCC 64. Subsequently, relied upon in Nivrutti Pandurang Kokate v State of Maharashtra (2008) 12 SCC 565 Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64 questions and answer them in a coherent and comprehensible manner. 10 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 last sentence of this judgement in our considered opinion is very material and necessarily implies that even if the Court has not recorded specifically in so many words that the child witness was found competent and capable of deposing, this capability and competence can be inferred from the deposition itself. if the child witness understands the questions put to him and gives rational replies thereto, it can be taken that he or she is competent to depose.
Such being the legal position, we are now proceed to examine the statement of child witness PW-5, Ashutosh.
This witness, in his examination in chief has stated that he is studying in Class 5 and that he has seen the occurrence. Nanhey Lal as shot by Ram Veer Singh with a tamancha and that the incident took place about a year back. He has also stated that at that time his sister (cousin) Sharmila was also present had also seen the occurrence and that prior to the shooting, there was a fight between Ram Veer Singh and Nanhey Lal.
As regards the time of occurrence, the statement of this witness is corroborated by the statement of Doctor, who conducted the autopsy report. It is also corroborated by the evidence, even the hostile witnesses, namely, PW-2 Long Shree and PW-3 Sharmila. Both of these witnesses in their examination-in-chief have stated that they had gone to the fields at 12 noon to ease themselves and on returning they found that their brother lying dead on the door of the house of PW-2 and the accused.
The statement of the child witness that PW-3 Sharmila was present at the time of occurrence is corroborated by the statement of PW-3, herself. In her cross-examination, she has admitted that it is right to say that at the time of the incident, she and her sister Long Shree were at home and that her brother Nanhey Lal, the deceased, had come to call her. The child witness has also stated that his father was present at the site of occurrence when the incident took place.
In his cross-examination, this witness has denied knowledge of the first information report or its contents. He has also stated that the dead body was taken for autopsy, the same day, which again is borne out by the documentary evidence available on record. Merely because this witness is not able to state the actual date of the incident or because he has stated that he has come to get his statement recorded as he was asked by his father to do so, without the Court having summoned him, cannot be a ground for discarding or holding this witness, unreliable or incapable of deposing.
During cross examination, he has stated that he does not know or recognize any resident of Azizabad as he has gone there only once is a perfectly logical and coherent statement. The witness does not come across as one of weak intellect or one who lacks intelligence, so as to render his testimony unreliable.
The submission of learned counsel for the appellant is that the child witness is a tutored witness. He has primarily made his submission on the basis of the statement of his father, Jadunath, PW-6, who has in his cross-examination by the defence counsel, stated that he had brought his son after tutoring him and he must have deposed as he had been tutored. This is the statement of a hostile witness and therefore, does not inspire confidence. The statement of PW-6 cannot be accepted also because he has clearly not speaking the truth because he has expressed ignorance, about the injuries on the body of the deceased. It is nobody's case that the injury on the body of the deceased was caused by anything other than a fire arm and feigning innocence and lack of knowledge of this basic fact renders the statement of PW-6 totally unreliable.
Under the circumstances and from perusal of the statement of PW-5 as also his cross-examination, it cannot be said that this witness is unreliable or was not fit to depose and that his statement is not worthy of credence.
There is yet another reason why the argument of learned counsel for the appellant that PW-5 is a tutored witness, cannot be accepted. PW-6 alleges that he has tutored his son, PW-5, Ashutosh. PW-6 himself in his testimony has denied the prosecution case. In case, he has tutored PW-5, the child witness would have also denied the incident. The very fact that he is only witness, who has supported the prosecution case, unlike his cousins, his uncle and his father is enough to show that he is not a tutored witness.
In the aforenoted background and for the reasons given above, we reject the argument of learned counsel for the appellant that the conviction could not have been recorded on the basis of the sole testimony of PW-5, Ashutosh, the child witness and an eye witness of the incident.
For the same reasons, the judgement of the trial Court is not liable to be interfered with on this ground urged by learned counsel for the appellant.
The only other point which survives for consideration is the contention of learned counsel for the appellant that the case against the appellant would fall within exception of Section 300 IPC. The said section reads as follows -
" Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault."
Although, this argument has been refuted by learned AGA with the submission that the Sharmila was not being permitted by the appellant accused from returning to her house. The deceased brother had come to fetch her, which was also resisted by the accused. Sharmila and that she was in the house of the deceased for the past 15 days and therefore, the same would lead to a presumption of premeditation. We are unable to accept the contention of learned AGA. It would be no doubt true that Sharmila was in the house of the appellant accused for a period of 15 days but the prosecution case is that the deceased had come to fetch Sharmila on the day of incident. There is no material on record to indicate that the deceased had come to fetch his sister after any prior intimation of his arrival.
In our considered opinion, in absence of any such prior intimation, it cannot be said that the circumstances of the case indicate any premeditation. It is however, not in dispute that Sharmila was staying in the house of the accused for some length of time contrary to the wishes of her father PW-1 and the deceased. This has been categorically admitted by PW-1 in his statement. Besides, only a single shot was fired, which resulted in the death of the deceased. The same can therefore, said to be action taken in the heat of the moment and does not indicate any cruelty or unusual act We are, therefore, constrained to accept the contention of learned counsel for the appellant that the case against the appellant would fall within the 4th exception to Section 300 IPC.
Under the circumstances, therefore, the offence would be one under Section 304 IPC part-I because the act of shooting the deceased in the chest would necessarily amount to causing injury in a vital part, which is likely to cause death. It is not the case where the injuries has been caused on the non vital part of the body. A person guilty of an offence under Section 304 Part-I can be sentenced to life and or has to be awarded a minimum sentence of 10 years.
Looking in to the facts and circumstances of this case, we consider it fit to award the minimum sentence to the appellant and convert his conviction under Section 302 IPC to one under Section 304 Part-I IPC. Accordingly, the sentence of life imprisonment is reduced to the minimum sentence liable to borne out by the appellant ,namely, imprisonment for 10 years.
Accordingly, the appeal is allowed in part. The judgement, conviction and sentence awarded to the appellant is modified to the extent indicated above.
The appellant, who is stated to have undergone incarceration of about 6 years is on bail. He shall be taken into custody to serve out the remaining sentence awarded by us.
Let a copy of this judgement be sent to the trial Court along with the lower Court record forthwith, for necessary compliance.
Order Date :- 29.10.2021 RKM