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1995 Supreme(Del) 206
High Court Of Delhi
CHANDER PRAKASH @ CHANDER - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 56 of 1991
Decided On : 03/01/1995
A.R.KHAN, AKHTAR HUSSAIN, D.C.MATHUR, IRSHAD AHMAD, P.S.SHARMA, R.M.JOHN, Satish Tamta
The court held that the statement of a child witness must be scrutinized carefully and that the conduct of the accused and the investigation carried out by the police must be taken into account while appreciating the evidence.
Headnote:
CRIMINAL APPEAL - [SECTION 302/34, 120-B, 460] - Murder - Conspiracy - Conviction - Challenge - Facts and circumstances of the case - Evidence - Appreciation - Reliability of child witness - Conduct of accused - Investigation - Scrutiny - Held, conviction not sustainable - Appeals allowed.
Fact of the Case:
The appellants were convicted for the murder of Sia Ram, husband of appellant Chameli Devi. The prosecution case was that Chameli Devi had given a false statement to the police and that the occurrence had not taken place in the manner stated by her. The real eye witness, Kumari Geeta, daughter of the deceased, stated that the appellants and one Rajesh (absconding accused) had conspired to kill Sia Ram and that on the night of the occurrence, all the appellants and Rajesh had caused the death of Sia Ram who was shot dead by Azmuddin from point blank range with a gun. The appellants challenged their conviction.
Finding of the Court:
The court found that the statement of the child witness, Kumari Geeta, was not reliable as it was not recorded promptly by the Investigating Officer and there was a possibility of her being tutored to give any statement against her mother by Mahipal, her uncle. The court also found that the conduct of Chameli Devi was not suspicious and that she had not tried to mislead the police by giving a statement that her husband was stabbed with a knife. The court further found that the investigation carried out by the police was not fair and that efforts were made to introduce a false child witness.
Issues: 1. Whether the statement of the child witness, Kumari Geeta, was reliable? 2. Whether the conduct of Chameli Devi was suspicious? 3. Whether the investigation carried out by the police was fair?
Ratio Decidendi: 1. The court held that the statement of the child witness, Kumari Geeta, was not reliable as it was not recorded promptly by the Investigating Officer and there was a possibility of her being tutored to give any statement against her mother by Mahipal, her uncle. 2. The court held that the conduct of Chameli Devi was not suspicious and that she had not tried to mislead the police by giving a statement that her husband was stabbed with a knife. 3. The court held that the investigation carried out by the police was not fair and that efforts were made to introduce a false child witness.
Final Decision: The court allowed the appeals, set aside the judgment and order of the Additional Sessions Judge convicting and sentencing the appellants, and acquitted the appellants of all the charges.
( 1 ) THESE three appellants-S/shri Chander Prakash @ Chander, Smt-Charneli Devi and Azmuddin have challenged their conviction andsentences awarded to them by an Additional Sessions Judge, Shahdara, videjudgment and order dated 30/03/1991, by which they were convicted of anoffence punishable under Section 302 read with Section 34 of the Indian Penal Codeand also convicted under Section 120-B of the Indian Penal Code which was termedas forming part of the main offence under Section 302 of the Indian Penal Code. Theappellants-Chander Prakash and Azmuddin were also convicted for an offencepunishable under Section 460 of the Indian Penal Code. All the appellants wereawarded imprisonment for life for the offence punishable under Section 302/34read with Section 120-B of the Indian Penal Code. The appellants-Chander Prakashand Azmuddin were further sentenced to undergo rigorous imprisonment for twoyears each for offence punishable under Section 460 of the Indian Penal Code.
( 2 ) FACTS of the case, in brief, are that Sia Ram, husband of Chameli Devi-appellant was having a crockery shop at Sanjay Market. At the time of theoccurrence, there were three daughters of the said couple living in house No. 169-170, Block No. 13, Kalyan Puri. The said house comprised of only two rooms anda compound in front of the same. Each room measured about 10 x 8 . Mahipal PW3was real brother of Sia Ram-deceased. He was also living with the family but heused to sleep at the shop of Sia Ram. Sia Ram remained abroad for earning moreincome for about three years prior to the occurrence and he had come to India in1986 and had again gone back abroad and returned in April 1987. Even before goingabroad he had let out one room in his house to Chander Prakash-appellant wholived there with his brother for some time. However, he had got vacated the saidroom from Chander Prakash sometime earlier to the occurrence. Sia Ram wasmurdered in one of the rooms of his house at about 11 p. m. on 25/01/1987. Thedaily Diary Report was recorded at serial No. 15a at about 12. 10 a. m. during theintervening night of 25th and 26/01/1987, copy of which is Ex. PW24/amentioning that Head Constable Mahavir Singh, Wireless Reporter, had gotrecorded that wireless information had been received that ASI Noor Mohd. ,incharge of the Police Control Room Van, who informed that a person resident ofhouse No. 12/170, Kalyan Puri, had been stabbed with a knife and he had broughthim to Swami Dayanand Hospital where the doctor had declared him as broughtdead . Copy of this report was given to SI Dayanand PW24 who proceededalongwith SI Ram Chander PW6, Constables Randhir Singh and Davinder Singh tothe place of occurrence. MLC Ex. PW16/a was prepared by Dr. Tej Singh Vimalpw16 wherein he recorded that Sia Ram s/o Bhoj Raj, aged about 35 years r/o 12/169-170, Kalyan Puri, Delhi, had been brought by ASI Noor Mohd. at 12. 45 a. m. andon examination he found him dead having the following injuries:1. Incised wound about 1. 5 cm long over leftside of neck depth uptocorotial artery and vein about 5 cms. 2. C. L. W. over right temporal region size 3 X 2 cms.
( 3 ) IN the Medico Legal Certificate he did not record as to with what weaponthe injuries had been caused. He did not record that the injuries were caused by firearm. PW18 ASI Noor Mohd. had disclosed that he was incharge of the PCR Van onthat night and had reached Sanjay Marketwhen Head Constable Khajan Singh gaveinformation that some miscreant had injured a person with knife at premises No. 12/170, Kalyan Puri and on reaching the spot he found Sia Ram bleeding profuselyfrom his injuries and he removed him to the hospital and Mahipal PW3, brother ofsia Ram, accompanied him and Sia Ram was declared brought dead at thehospital and he gave this information to the Control Room. In cross-examination hedisclosed that at the time he reached the said house he found one constable presentat the spot. Head Constable Khajan Singh has not been examined
