Virendra @ Buddhu
& ANR Vs. State of U.P. [2008] INSC 1775 (17 October 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL No. 509 OF 2006 Virendra @ Buddhu & Anr. ....
Appellants versus State of U.P. .... Respondent
Dr. Mukundakam
Sharma, J.
1.
This
appeal is filed by the two accused who have been convicted by the Division
Bench of the Allahabad High Court under Section 302 read with Section 34 of the
Indian Penal Code (for short `IPC') and sentenced to undergo imprisonment for
life.
2.
Originally,
there were three accused persons, namely, Virendra @ Buddhu, Ram Asrey @ Tami
and Girish Chandra @ Gappu and they were charged under Section 302 read with
Section 34 IPC and Girish Chandra was also charged under Section 307 IPC. The
Trial Court after recording evidence and hearing arguments acquitted all the
accused persons of the charges leveled against them under Section 302 read with
Section 34 IPC and Girish Chandra from the charges leveled against him under
Section 307 IPC.
Being aggrieved by
the order of acquittal passed by the Trial Court an appeal was filed by the
State of U.P. before the Allahabad High Court. The said appeal was allowed in
part to the extent that acquittal of the accused - appellant in the present
appeal was set aside and they were sentenced to undergo imprisonment for life
under Section 302 read with Section 34 IPC, while the acquittal of third
accused, namely, Girish Chandra was affirmed by the same judgment and order of
the High Court of Allahabad. Being aggrieved by the said order of the High
Court the present appeal was filed by the accused persons, in which notice was
issued and an order was also passed rejecting the prayer for bail but with
direction for expeditious disposal of the appeal. Pursuant to the said order,
the present appeal was listed before us for hearing and disposal and we heard
the learned counsel appearing for the parties. In this appeal, learned counsel
appearing for the parties have taken us through the entire evidence on record
in support of their contentions before us.
3.
Before
analyzing the submissions made before us by the counsel appearing for the
parties, it will be necessary to set out the factual position leading to the
filing of the present appeal by both these accused persons.
2 On 05.10.1979 at
about 4.45 p.m. Smt. Sarla Devi, wife of Rameshwar Dayal (hereinafter referred
to as `deceased') lodged a First Information Report at police station
Shamshabad, District Farrukhabad alleging that Pyarey Lal who happened to be
her grand father in relation had executed a sale deed of his landed property in
favour of her son Pradeep Kumar but subsequently Het Ram and Sahdev got a deed
of will regarding the same property allegedly executed by their maternal uncle
Pyarey Lal in their favour. Therefore, in respect of the same piece of land,
litigation was going on between her deceased husband on one hand and Het Ram
and Sahdev on the other hand. Three months prior to the occurrence Sahdev was
murdered and in connection with the said murder her son Pradeep Kumar, brothers
Jaidev and Rakesh were falsely roped in as accused and Pradeep was still in
jail at the time of murder of his deceased father. It was also alleged that
proceedings under Section 107 and 117 of the Code of Criminal Procedure, 1973
(for short `Cr.P.C) were also going on between the deceased on one hand and Het
Ram on the other hand. It was further alleged that Het Ram and his son Virendra
@ Buddhu were nursing grudge against the deceased. On the fateful day i.e. on
05.10.1979, early morning the deceased, the complainant Sarla Devi, P.W. 1 and
their daughter Km. Guddi, P.W. 2 had gone for taking a holy dip into the river
Ganges on the pious occasion of "Poornamashi". Thereafter, at about
10.00 a.m. while they 3
were returning back after seeing Patavar in their field through the field of
Raghubar Dayal and reached near mango tree standing in that field, Virendra
alias Buddhu along with his cousins Ram Asrey alias Tami and Girish Chandra
alias Gappu armed with country made pistols emerged from Patavar standing at
the medh of Chhavinath and rushed towards the deceased. Ram Asrey was shouting
that the deceased should be caught hold of as they had to take revenge of the
murder of their maternal uncle. Upon hearing the said shouting the deceased tried
to run for his life but he could not escape and Virendra and Girish caught hold
of him under the mango tree and Virendra and Ram Asrey fired at him with
country made pistols causing fatal injuries on him. On hue and cry raised by
Smt. Sarla Devi and Guddi, Girish fired commanding them not to come forward and
all the three accused ran away towards left.
Sustaining fatal
injuries at his head and eye the deceased died on the spot instantaneously.
Thereafter on
reaching of some of the co-villagers near the dead body Sarla Devi went to the
village and got the report scribed by Deep Chand and then went to the police
station Shamshabad situated at a distance of about 7 miles from the village.
She lodged the First Information Report, upon which a criminal case was
registered and investigations of the crime was taken up.
4 During the course
of investigation all the three accused persons were arrested. Autopsy was
conducted on the dead body and post-mortem report was obtained. After
completion of the investigation, the police submitted charge sheet against the
three accused persons. The trial court framed charges against all the three
accused persons under Section 302 read with Section 34 IPC and against accused
Girish also under Section 307 IPC. The charges were read over to the accused
and were explained to them in Hindi language. They pleaded not guilty and
expressed their desire to be tried. Since the learned counsel for the accused
admitted under Section 294 of the Cr.P.C. the prosecution records from Ext. Ka-2
to Ext. Ka-18, the prosecution examined no other person as prosecution witness
other than Smt. Sarla Devi the complainant as PW-1 and Km. Guddi as PW-2, who
are stated to be eye-witnesses of the said occurrence. The learned trial court
thereafter critically examined the depositions and the evidence on record and
on appreciation thereof acquitted all the three accused persons of all the
charges leveled against them.
On appeal being
filed, the High Court on re-appreciation of the evidence and records found that
the grounds of acquittal as given by the learned trial court were unjustified
and for the reasons recorded in the judgment set aside the order of acquittal
passed against Virendra and Ram Asrey. The High Court, however, maintained the
order of acquittal passed in favour of Girish Chandra. Consequently, the
present appeal is filed by the two accused persons who were held to be guilty
of the charge under Section 302 read with Section 34 IPC.
4.
Mr.
Salman Khurshid, the learned senior counsel appearing for the appellants
submitted that the High Court was not justified in setting aside the order of
acquittal inasmuch as the reasons given by the High Court for reversing the
order of acquittal are unsustainable. He submitted that the discrepancies
between the ocular evidence and the medical evidence are so vital that no Court
could convict the two accused persons and they were required to be treated
similarly as the third accused, namely, Girish Chandra who was acquitted of all
the charges. Relying on the post-mortem examination report of the deceased, he
submitted that the said report clearly proves and establishes that there was 4
oz of semi digested food in the stomach of the deceased at the time when
autopsy was conducted, which clearly belies the prosecution case that the
deceased died at about 10.00 a.m. in the morning inasmuch as PW-1 - Smt. Sarla
Devi, wife of the deceased, had herself stated that the deceased did not take
any food in the morning on the fateful day and he had taken his meal at about 6-7
p.m. on 04.10.1979.
He further submitted
that presence of 4 oz of semi-digested food in the stomach of the deceased at
the time when autopsy was done, clearly 6 pinpoints to the fact that the
deceased was murdered at about 10.00 p.m. on 04.10.1979 by some unknown person
and in order to make out a got up story it is now shown that the deceased was
murdered in the morning in presence of his wife and daughter while returning
after taking bath on the occasion of Poornamashi in river Ganges. He also
pointed our attention to the discrepancy in the statement made by PW-1 - Smt.
Sarla Devi and PW-2 Km. Guddi for PW-1 has stated that near the place of
occurrence in the field there was bajra and jawar crop standing whereas PW-2
Km. Guddi has stated that at that time there was no crop in her field except
pataur standing.
According to the
senior counsel, the said discrepancy is very vital and clearly belies the
prosecution case and therefore both the accused persons should be acquitted of
all the charges.
5.
Learned
counsel for the State on the other hand while supporting the judgment of the
high court stated that the findings recorded by the Trial Court were clearly
erroneous in law and the High Court has rightly appreciated the evidence on
record while coming to its conclusion.
6.
In
order to appreciate the contentions raised, we have read the entire evidence on
record. The two witnesses, PW-1 and PW-2, are the eye- witnesses. The incident
had taken place in their presence when they were coming back after taking a
holy dip in the river Ganges. PW-1 had also stated in her deposition about the
motive for the murder of the deceased as according to her there was a long
animosity between the deceased and the accused persons. About the incident she
has stated that on the day of Poornamashi at about 10.00 a.m. when she along
with her deceased husband and daughter Km. Guddi was returning after having a
holy-dip in the river Ganges, the deceased expressed his desire that they
should have a look of their crop and then go home and when these persons
reached near the field of Chhabinath, the accused persons emerged from behind
the crops. She had also stated that all the three persons were armed with
country made pistols and at that time Ram Asrey exhorted others to catch hold
of the deceased in order to take revenge of murder of their maternal uncle. She
also stated that thereupon Ram Asrey, Virendra and Girish Chandra caught hold
of the deceased. She further stated that first of all Ram Asrey caught hold of
the deceased and then Virendra caught hold of him and then Ram Asrey and Girish
Chandra fired shots with their country made pistols which hit at the skull of
the deceased upon which deceased fell down on the field and died on the spot.
The accused persons fled away from there towards west direction to the village.
8 She also stated
that after the co-villagers arrived at the place of occurrence she went home
and met the brother-in-law of her deceased husband, namely, Deep Chandra and
got the Report of the occurrence written by him.
She thereafter
accompanied by her son-in-law Prem Chand went to the police station Shamshabad
where she submitted the said written report Ext. Ka-1 and lodged the First
Information Report Ext. Ka-2 at about 4.30 p.m. She had of course stated in her
statement that her deceased husband took his last meal at about 6.00 - 7.00
p.m. on the previous evening and did not take anything in the morning.
7.
The
prosecution also examined Km. Guddi, PW-2 daughter of deceased.
The Trial Court, of
course disbelieved the evidence of PW-2, namely, Km. Guddi, who stated her age
to be about 14 or 15 years on the date of incident.
According to the
Trial Court, she was not a dependable and reliable witness as she does not
understand the meaning of the expression "oath" and also as she has
no idea about the direction and boundaries of her field. The High Court in the
appeal however considered her deposition and held that the Trial Court was not
justified in rejecting her testimony totally. The Trial Court did not
administer oath to her observing that she appeared to be aged about 12 years
and also opined that she did not understand sanctity of oath.
The High Court held
that PW-2 might not be in a position to understand the 9 significance of
Shapath (oath) but the Trial Court should have satisfied himself if she
understood the significance of desirability of speaking the truth.
8.
The
Indian Evidence Act, 1872 does not prescribe any particular age as a
determinative factor to treat a witness to be a competent one. On the contrary,
Section 118 of the Evidence Act envisages that all persons shall be competent
to testify, unless the court considers that they are prevented from
understanding the questions put to them or from giving rational answers to
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 or she has intellectual capacity to understand questions and
give rational answers thereto. 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. In Dattu Ramrao Sakhare v.
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 10 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."
Subsequently, in the
case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat, [(2004) 1 SCC 64]
wherein one of us (Dr. Arijit Pasayat) was a member the bench held that though
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 but 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. The
bench further held as under: (SCC p. 67, para 7) "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
the present case, a perusal of the statement of PW 2 goes to show that she had
no idea of directions, distance, area etc. She remained silent to some
questions put to her such as what was the area of her father's field or whose
fields were situate around the field of her father. The High Court observed that
it is not expected from a girl of 14 years to answer these questions put to
her. Besides it, a rustic girl of tender age of 14 years is likely to be
overawed by the Court atmosphere and the piercing cross-examination made by the
defense counsel and out of nervousness she may get confused and may not be able
to answer some questions. PW2 could not tell the actual name of Buddu saying
that it was slipping from her mind. The Trial Court while disbelieving her
testimony stated that she could not tell the real name of Buddhu. The High
Court held that on that ground that PW-2 could not answer few questions, her
evidence could not be rejected if otherwise it was reliable and trustworthy. We
have been taken through her evidence by the learned counsel and on perusal of
the same we find that the testimony of PW-1 Sarla Devi stands corroborated by
the testimony of PW 2 Guddi on all material points. We are of the considered
opinion that the prompt answers from her, to the questions put to her during
cross-examination, can be accepted even though she was aged about 14 years when
the occurrence had taken place.
12 Even otherwise it
is not the case of the prosecution that the conviction has to be based on the
sole testimony of PW 2. In the FIR itself there was a reference to the fact
that PW 2 was also an eye witness to the incident in addition to PW 1, as PW 2
was also accompanying the deceased and PW 1 on the fateful day. The testimony
of PW 2 is used by the prosecution only to the extent that the same
corroborates the evidence led by the prosecution through PW 1 and was also in
conformity with the medical evidence. It appears to us from a reading of her
deposition that she had deposed whatever she had seen and the same corroborates
the testimony of PW 1 on all material points. She was a rustic village girl
aged about 14 years and such a girl cannot always be expected to have an alert
mind so as to be able to answer all questions such as directions, area, and
distance with precision.
10.
This
brings us to the main contention of the counsel appearing for the appellants
regarding the presence of 4 oz of semi-digested food in the stomach of the
deceased. Similar contention was also raised before the High Court and the High
Court in its judgment had mentioned that the Trial Court observed that the
deceased was murdered on 04.10.1979 at about 10.00 p.m. because the doctor who
conducted autopsy on the dead body of the deceased mentioned in the post mortem
report that stomach contained 4 13 oz of semi-digested food and PW 1 Sarla Devi
stated in her cross- examination that her husband had not taken food after last
evening.
Answering the said
contention the High Court observed that such observation made by the Trial
Court is wholly erroneous as both the eye- witnesses stated that the deceased
was murdered while returning to the village after taking bath in the river
Ganges as there was Poornamashi that day. Regarding the statement of PW 1 Sarla
Devi to the fact that deceased had not taken anything on that fateful day since
morning, it was held by the High Court that the possibility cannot be ruled out
that the deceased might have taken something after taking bath in the morning
and that Sarla Devi might not have noticed the same.
Moreover, the doctor
who conducted autopsy on the dead body on 06.10.1979 at 4.30 p.m., in the
report has mentioned that rigor mortis had passed through upper extremities and
was present in lower extremities. It is mentioned at page 125 of Modi's Medical
Jurisprudence and Toxicology, Edition 1977 that in general rigor mortis sets in
1 to 2 hours after death, is well developed from head to foot in about 12
hours, is maintained for about 12 hours and passes off in about 12 hours. In
the instant case rigor mortis was present in lower extremities at the time
autopsy was conducted on the dead body after 30 hours. As according to ocular
testimony deceased was murdered on 05.10.1979 at about 10.00 a.m. and the
doctor conducted autopsy on the dead body on the next day at about 4.30 p.m.
after 30 hours of death but rigor mortis was found present in lower
extremities. Had he died on 04.10.1979 at about 10.00 p.m. or so rigor mortis
would have passed off from the dead body completely at the time of autopsy.
Thus the ocular testimony that he was murdered on 05.10.1979 at about 10.00
a.m. stands corroborated from the medical evidence pin-pointing that rigor
mortis was present in lower extremities at the time when the autopsy was
conducted on the dead body after 30 hours.
11.
11.We
find no reason to discredit the evidence of the two eye witnesses, whose
presence could not have been doubted at the place of occurrence of death of the
deceased on the sole ground that PW 1 in her cross examination has mentioned
that her husband had not taken food after the previous evening.
They were natural
witnesses who were present at the time of occurrence and the possibility that
the deceased might have taken something after taking bath in the morning which
Sarla Devi might not have noticed. Such a situation as held by the High Court
cannot be ruled out. In a similar case of Sarbul Singh and Others v. State of
Punjab, [1993 Supp (3) SCC 678], where some semi-digested food was found in the
stomach of the deceased 15 therein although there was evidence that they had
taken food immediately before the occurrence, this Court held as under:
"6. We see
absolutely no reason to discredit the evidence of the three eyewitnesses whose
presence cannot be doubted. Now coming to the semi-digested food, it cannot be
ruled out that the old lady might not have eaten anything earlier. Merely
because the illiterate witnesses stated that they took their meals immediately
before the occurrence cannot by itself be a circumstance to discredit their
evidence on the basis of medical evidence regarding the presence of semi-digested
food. It is also clear from the textbooks on medical jurisprudence that the
stomach contents cannot be determined with precision at the time of death. As
rightly held by the High Court, the trial court grossly erred in basing its
verdict mainly on the nebulous medical observation."
12.
In
this view of the matter, we are unable to accept the contentions of the learned
senior counsel appearing for the appellants that the appellants should be
acquitted for the reasons stated hereinabove. We reject the contentions because
of the reasons set out hereinabove. Reliance was also placed by the learned
senior counsel for the appellants to the fact that there was discrepancy
between the evidence of PW-1 - Smt. Sarla Devi and PW-2 Km. Guddi to the extent
that PW-1 has stated that near the place of occurrence in the field there was
bajra and jwar crop standing whereas PW- 2 Km. Guddi has stated that at that
time there was no crop in the field except pataur standing. The said
discrepancy is of no significance at all.
Both the witnesses
were found to be natural eye-witnesses, who were 16 present at the place of
occurrence on the fateful day, they were wife and daughter of the deceased and
they would rope in only the culprits to be punished and will not rope in someone
who is not at all involved in the incident. The medical evidence available on
record fully corroborates the ocular evidence and proves and establishes the
guilt of the accused persons.
There could be no
doubt in the prosecution case regarding the manner in which the incident
happened. The case of prosecution by recovery of blood, pellets, tiklis and
empty cartridge from the place of occurrence stands proved and therefore there
could be no doubt with regard to the time and place of occurrence and also regarding
the weapons used in the assault. We, therefore, find no reason to take a
different view than what was taken by the High Court.
13.
The
appeal is devoid of merit and is dismissed.
................................J.
(Dr. Arijit Pasayat)
.................................J
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