2001 Supreme(SC) 1534

2001(8) Supreme 309
SUPREME COURT OF INDIA
(From Bombay High Court)
K.T. Thomas and S.N. Variava, JJ.
State of Maharashtra -Appellant
versus
Bharat Fakira Dhiwar -Respondent
Criminal Appeal No. 1246 of 1997
Decided on 2-11-2001
Counsel for the Parties :
For the Appellant : H.W. Dhabe, Sr. Advocate, S.S. Shinde and S.V. Deshpande, Advocates.
For the Respondent : S. Muralidhar, Advocate (A.C.).

IMPORTANT POINT
The reasons for setting aside conviction of respondent for offences under Sections 302, 376 and 201 IPC given by High Court are not supportable on facts & in law. The judgment of trial court convicting the accused is restored. But the extreme penalty of death, though imposable, is altered to life imprisonment as accused was once acquitted by High Court which is now reversed.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 376 and 201-Respondent convicted of raping a young girl, murdering and destroying evidence-Conviction based on evidence of two child witnesses, recoveries and medical evidence-High Court acquitting, disbelieving evidence of child witnesses-Appeal to Supreme Court-Whether High Court was correct? (No)-Case law on evidence of child witnesses and recoveries analysed.

       Held : We have heard the parties and have read the evidence. We have also perused the material on record. In this case apart from a number of circumstances, as enumerated hereafter there is the evidence of two child witnesses. The trial Court put several questions to ascertain whether the two child witnesses were aware of the sanctity of oath and whether they were able to understand the questions put them. The trial Court found that the two child witnesses had answered all the questions properly. The trial Court was satisfied that they could understand the questions put to them. (Para 11)

       The High Court disbelieved the evidence of these two child witnesses on the following grounds:

        (a) that the locality was full of houses and that there would have been a lot of people who would also have otherwise seen the Respondent;

        (b) that it has not been shown that the two children stayed in that locality;

        (c) that it was highly improbable that there will be no other child lighting fire crackers;

        (d) that it was impossible to believe that the children did not inform their parents of what they had seen;

        (e) that there were contradictions between the deposition given by the children in Court and the statement given by them to the police;

        (f) that even if the children had seen the accused carrying a bag they could not have known that he was carrying the body of dead child. The High Court felt that the Respondent could have been carrying anything else in the bag;

        (g) that the shirt which the Respondent was supposed to have removed was not recovered by the police and that this showed that the child witnesses were not trustworthy. (Para 17)

       In our view, none of the aforesaid reasons, given by the High Court, is sufficient for purposes of discarding the evidence of these two child witnesses. To be remembered that the trial Court which had the opportunity of watching the demeanour and conduct of these two child witnesses found them to be truthful. In our view it is entirely irrelevant that the locality was full of houses. The High Court has erred in coming to the conclusion that it was not shown that the two children stayed in the locality. During cross-examination of both these child witnesses, it has been put to them that they would have been lighting crackers near their house and that they could not have seen the Respondent from near their house. This showed that even the defence accepted that they stayed in the locality. It is also in evidence that their house was merely 4/5 houses away from the house of P.W. 10 i.e. Shantabai. There is nothing strange in there being no other children bursting fire crackers at that time. On the contrary, it is highly unlikely that all the children in the locality would be lighting firecrackers at the same time and place. The High Court has also disbelieved them on the ground that it is impossible that they would not have divulged such information to their parents. But there is nothing on record to show that they did not divulge this incident to their parents. No questions have been put to them in this regard. Therefore the High Court was wrong in concluding that their conduct in not divulging the incident to their parents was difficult to believe. We also do not find any material contradictions between the deposition given in court and the statement given by them to the police. There may be some minor contradictions but those are not of a material nature. The further reason given by the High Court that the shirt had not been recovered could hardly be a reason for disbelieving these two child witnesses. It is quite possible that the Respondent may have destroyed or hidden the shirt. Undoubtedly on 23rd October, 1995, the children would not know what was being carried in the jute bag. But on the next day when they heard about the little girl Nisha being missing, they would have put two and two together and known that blood was dripping from the bag because of the girl being carried in the bag. As stated above, the trial Court has found the evidence of the child witnesses to be reliable and truthful. We also find the evidence to be reliable and truthful. There has been searching cross-examination and both the child witnesses have stood the test of cross-examination. The cross-examiner has not been able to make any dent in the testimony of these two child witnesses. We, therefore, see no reason to disbelieve the child witnesses. (Paras 18 & 19)

       Held also : Even otherwise their evidence is supported by a number of other circumstances which have been proved by the prosecution. These two child witnesses had seen the Respondent going beyond the canal. The dead body was found beyond the canal. They had seen the Respondent carrying a jute bag. Next to the dead body a jute bag had been found. It was stained with human blood of group "B". In the house of Respondent the ground had been found to be freshly covered with cow-dung. On the wall of the house, on a newspaper and a quilt found in the house, there were blood stains. The blood stains on the newspaper were of group "B". At the instance of the Respondent the grinding stone was recovered from tall grass. That grinding stone also contained blood of group "B". At the instance of the Respondent his full pant and underwear were recovered from the sugarcane field where he had buried them. They also contained the blood of group B . All these circumstances clearly and unerringly pointed to the guilt of the Respondent. These circumstances strongly lend support to the evidence of the two child witnesses. The High Court has wrongly ignored and/or brushed aside these circumstances. (Para 20)

       In the present case the grinding stone was found in tall grass. The pant and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at instance of Respondent, their hidden state had remained unhampered. The Respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also. Under these circumstances, in our view, the impugned Judgment cannot be sustained and is hereby set aside. The Judgment of the trial Court convicting the accused is restored. (Paras 22 & 23)

       (ii) Indian Penal Code, 1860-Sections 302, 376 and 201-Respondent convicted of raping a minor child of 3 years age brutally murdering her and concealing evidence-High Court acquitted-Supreme Court restoring conviction-Question of sentence-Trial Court had imposed death penalty for murder and different sentences for other offences-Whether death penalty be confirmed? (No, as it is a case of reversion of acquittal).

       Held : Regarding sentence we would have concurred with the Sessions Court s view that the extreme penalty of death can be chosen for such a crime. However, as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of rarest of the rare cases", as envisaged by the Constitution Bench in Bachan Singh v. State of Punjab [reported in (1980) 2 SCC 684]. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life. The sentences imposed by the trial court on all other counts would remain unaltered. We direct the Sessions Court, Ahmadnagar to take immediate and necessary steps to put the accused in jail if he is not already in jail, for undergoing the sentence imposed on him. (Para 23)