2003(1) Crimes 426 (SC)
Supreme Court of India
(From Himachal Pradesh High Court)
S. Rajendra Babu & P. Venkatarama Reddy, JJ.
State of Himachal Pradesh —Appellant
versus
Prem Chand —Respondent
Criminal Appeal No. 290 of 1995
Decided on 16-12-2002

Important point
High Court was carried away by figments of imagination; by incorrectly and unduly relying upon rough sketch of the scene of the crime to reject reliable testimony of injured child eye witness in recording acquittal of respondent of dual murders and attempt to murder for committing theft. However, facts and circumstances of case do not call for imposition of death sentence as done by trial Court. The conviction of respondent under Sections 302, 307 and 362 IPC is restored with life imprisonment.

Headnote:Indian Penal Code, 1860—Sections 302, 307 and 362—Offence of murdering Dhobi Devi (an old woman), Madhu Devi (a minor girl of 3 years) and attempting to commit murder of Pawan Kumar (a boy of 10 years) and committing theft of ornaments by respondent (uncle of injured boy)—Trial Court convicted and sentenced to death—In appeal and death reference, High Court acquitted respondent—Appeal by State to Supreme Court—Finding of High Court in doubting testimony of Pawan Kumar (injured boy) was found perverse based on surmises—Conviction by trial Court restored—But death sentence was reduced to life imprisonment—Appeal allowed accordingly.

       Held (on evidence as to conviction) : Though PW.4 is a child witness, he has been clear and cogent in giving his evidence. Inspite of being put to severe cross-examination he has come out clean and he has stuck to the statements made by him. Whether he woke up at the call of his grandmother is a matter which can be understood because what he has stated earlier was that when his grandmother was calling him to release the dog and when he was about to run, he was beaten and by that time the accused had already inflicted 'danda' blow to Dhobi Devi. Therefore, the version given by him is a consistent with what he has stated earlier. The attempt of the learned amicus curiae to attach importance to the presence of one Ramesh on 10th February, 1992 cannot assume any significance because PW.4 is categorical in identifying the accused as having committed the offence. When he had clearly seen the accused at least on two occasions whom he had known to be his Chacha there was no need to hold further Test Identification Parade. In what condition he was at the time when PWs. 5, 6 and 7 saw him or whether he could have removed him to hospital and what facilities they had will not militate against the evidence tendered by PW.4 before the court. The contention that PW. 4 having been gagged in the mouth with a muffler was not stated earlier but an improvement made before the court is not very material as it is a detail of minor nature. The visit of the accused on the 10th February, 1992 night appears to us only to survey the situation and after ensuring himself that it was possible for him to commit the crime, he returned the next day. Non-examination of Binda, father of PW.4 and the brother of the accused, will not carry the matter any further because their evidence would not establish any connection with the crime committed by the accused. Fact remains that the accused had been apprehended and produced before the court. In this background, we find no merit in any of the contentions advanced by the learned amicus curiae on behalf of the ­respondent. (Para 7)

       Held further : The High Court, by examining the evidence with reference to the rough sketch prepared by the I.O., drew an inference that there should have been two beds in the room if the evidence of PW.4 is to the effect that he was sleeping with the respondent and that three-year old Madhu Devi was sleeping with her grandmother is to be believed. In Tori Singh & Anr. vs. State of U.P., AIR 1962 SC 399, this Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after getting information from the witnesses where exactly the assailants and the victim stood at the time of commission of the offence, the draftsman put down the places in the map, it was held that such a plan drawn to scale was admissible after the witnesses corroborated the statements of the draftsman that they had shown him the places and would not be hit by Section 162 Cr.P.C. Another sketch also had been prepared in that case by the Sub-Inspector on the basis of what the witness had stated to him but the same was ruled as inadmissible in view of Section 162 Cr.P.C. The sketch/map in the present case has been prepared by the I.O. and particularly when no evidence has been adduced with reference to the sketch by the witnesses such statement even if admissible in evidence and is not hit by Section 162 Cr.P.C., still it cannot be of much use unless some of the witnesses state as to the state of affairs at the scene. No such attempt has been made nor evidence has been adduced through any of the witnesses. Therefore, we think that the caution indicated in that decision should be borne in mind. The High Court held that as the site plan indicated that there were four beds, the testimony of PW.4 has become doubtful. It is difficult to accept the view taken by the High Court that when the clear evidence tendered by PW4 is to the effect that the small child of three years was sleeping with her grandmother and that PW.4, who is nephew of the respondent, was sleeping in the same bed, it would not mean that the existence of other two beds could be doubted. In that view, the High Court has attached undue significance to this aspect of the matter and has misled itself. PW.4 who is a very young boy, was an inmate of the house on the fateful day was seriously injured and Dhobi Devi and Madhu Devi were murdered by the respondent. The fact that PW.4 sustained injuries on that day cannot be seriously disputed. The circumstances in which PW. 4 sustained those injuries have been clearly explained by him and the manner in which the respondent attacked Dhobi Devi and Madhu Devi and later on himself cannot be doubted at all. The presence of the respondent on 10.2.1992 is established by evidence of Geeta Devi. That indicates that the respondent having noticed that there was an old lady with a small child and PW.4, Pawan Kumar was a young boy, took the opportunity to do away with them but he could not execute his plan completely because Pawan Kumar survived, though the respondent had caused him grievous injuries. PW.4 had in the course of his evidence has clearly deposed that his 'Chachu' has committed the murder of his 'Nani' and sister Madhu Devi and he caused injuries to him with the help of iron pipe and sickle. PW.4 has in clear and cogent manner described the incidence that had taken place. When he is related to the respondent there is no reason to suspect that he had given any tutored version or there is no clarity or consistency in his evidence. Even discarding the recoveries that are stated to have been effected, it is clear that there is enough evidence on record to show that the respondent committed the murder of Dhobi Devi and Madhu Devi as held by the Sessions Court. But, the High Court, was carried away by figments of imagination, by incorrectly and unduly relying upon rough sketch of the scene of crime. We do not think that unless with reference to the rough sketch the scene was recreated before the court through the evidence of one or the other witness, the High Court could have placed much reliance upon that aspect. (Paras 9 and 10)

       Held consequently : Therefore, we have no hesitation in setting aside the order made by the High Court acquitting the respondent and restoring the conviction passed by the Sessions Court. (Para 11)

       Held (on sentence) : Though the Sessions Court has imposed death sentence upon the respondent by an order made on 29.9.1992, the High Court by its judgment dated 28.4.1993 acquitted him. In view of the following observations of this Court in Suresh vs. State of U.P. (supra):

       "Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which even if true, is not safe enough to act upon for putting out a life." (p.574)

       and keeping in mind the fact that there is a long time gap between the date of the murder and conviction now by us and particularly when in the intervening period there is an order of acquittal in favour of the respon­dent, we do not think it is expedient to award the capital sentence upon the respondent. Therefore, we reduce the sentence to life ­imprisonment while upholding the conviction given by the Sessions Court. The appeal is allowed accordingly. If the respondent is on bail, the same shall stand cancelled and he shall surrender forthwith to serve out his ­sentence in accordance with law. (Para 2)