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2018 Supreme(Del) 561
IN THE HIGH COURT OF DELHI AT NEW DELHI
S.MURALIDHAR, I.S. MEHTA, JJ.
SANTOSH MALIK - Appellant
Versus
STATE (GOVT. OF NCT) & ORS. - Respondents
CRL.A.1008 of 2017
Decided on : 27-02-2018
For the Appellant :Mr. Rakesh Kumar, Advocate.
For the Respondent:Ms. Kusum Dhalla, along with SI Karan Singh, P.S. Crime Branch, Mr. Vishal Raj Sehjipal, Mr. Anwar A. Khan, Mr. Sunil Sagar, Mr. Ghufran Ahmad, Advocates
The testimony of a child witness can be the basis of a conviction if the witness is found to be competent and reliable.
Headnote:
CRIMINAL APPEAL - ACQUITTAL - SECTION 302/34 IPC - MURDER - CHILD WITNESS - CIRCUMSTANTIAL EVIDENCE - APPRECIATION OF EVIDENCE - CORROBORATION - MOTIVE - ALIBI - CHAIN OF CIRCUMSTANCES - CONVICTION - SENTENCE.
Fact of the Case:
The deceased was shot dead outside her factory. Her son, PW-1, witnessed the incident and saw the accused fleeing the scene with firearms. The prosecution also relied on the deceased's handwritten complaints to the police, which detailed previous attacks on her by the accused. The trial court acquitted the accused, holding that PW-1's testimony was unreliable and that the prosecution had failed to prove the motive for the crime.
Finding of the Court:
The High Court held that the trial court erred in disbelieving PW-1's testimony. The Court found that PW-1 was a natural and truthful witness who had withstood rigorous cross-examination. The Court also found that the deceased's handwritten complaints to the police corroborated PW-1's testimony and provided a motive for the crime. The Court further held that the accused had failed to prove their alibi. Accordingly, the Court set aside the trial court's judgment and convicted the accused of murder.
Issues: 1. Whether the trial court erred in disbelieving the testimony of PW-1? 2. Whether the prosecution had proved the motive for the crime? 3. Whether the accused had proved their alibi?
Ratio Decidendi: 1. The testimony of a child witness should be approached with caution, but it can be the basis of a conviction if the witness is found to be competent and reliable. 2. The deceased's handwritten complaints to the police, which detailed previous attacks on her by the accused, provided a motive for the crime. 3. The accused failed to prove their alibi by merely showing that their mobile phones were at their respective houses at the time of the crime.
Final Decision: The High Court set aside the trial court's judgment and convicted the accused of murder. The accused were sentenced to imprisonment for life with a fine of Rs.20,000/- each.
Dr. S. Muralidhar, J.
1. The Appellant, who is the mother of the deceased, has filed the present appeal being aggrieved by the judgment dated 22nd March, 2016 of the learned Additional Sessions Judge (ASJ) 04 (North), Rohini Courts, Delhi in Sessions Case No.30/15 arising out of FIR No.78/10 registered at Police Station (“PS”) Crime Branch (Bawana), acquitting Respondent Nos. 2 to 5 of the offences under Section 302/34 Indian Penal Code (“IPC”).
2. Respondent Nos. 2 to 5 were charged with committing the murder of the Appellant's daughter Rashmi (the deceased) by shooting her with firearms outside her factory at No. N-12, Sector-8, DSIDC, Bawana on 6th April 2010 at around 6.30 pm. In the trial that ensued, Amandeep, the husband of the deceased was arrayed as Accused No.2 (A-2) and his elder brother Navdeep was arrayed as A-1. Pradeep, the brother-in-law of A-1 was arrayed as A-3. Kulbir, an associate of A-2, was arrayed as A-4. In the present appeal the accused A1 to A4 are the Respondent Nos. 2 to 5 respectively. The Appellant, who is the mother of the deceased appeared as Prosecution Witness (PW) No.2 in the trial.
3. While the State did not appeal against the acquittal of the accused, PW-2 filed Crl. L. P. No. 458 of 2016 in which, by an order dated 2nd November 2017, this Court granted her leave to appeal. Pursuant to the above order, A-1 to A-3 furnished their respective personal bonds and surety bonds before the Joint Registrar (Judicial) of this Court on 23rd November 2017. A-4 furnished his personal bond and surety bond on 12th February 2018.
Background
4. The background facts are that the deceased married A-2 on 13th April, 1996. Their two children are Master Kunal (PW-1) and Master Harsh. The case of the prosecution, as narrated by PW-2, is that A-2 the husband of the deceased, was having an illicit relationship with his sister-in-law, i.e. the wife of A-1. A-2 used to give the earnings from his factory at Peeragarhi to the said sister-in-law. He suffered losses of Rs.10 lakhs in his factory. A-2 was an alcoholic and there were frequent altercations between him and the deceased. In 2004, the mother of A-1 and A-2 expired. Prior thereto, A-2 and the deceased and their children were residing at Peeragarhi. After 2004, A-2 began residing with A-1 and his wife. Although the family property stood divided between A-1 and A-2 equally, A-2 was constantly seeking to transfer the property that made up his share to A-1 and there were quarrels between A-2 and the deceased over this.
5. PW-2 stated that at the request of the deceased, she had given the deceased money in order to discharge the liabilities incurred by A-2 in the running of the factory. The deceased thereafter established the factory at No.N-12, Sector-8, DSIDC, Bawana and was running its affairs. According to the prosecution, from April, 2009 itself A-2 began calling A-1, A-1’s father-in-law and A-3 in order to threaten to kill the deceased if she did not hand over the charge of the finances to him.
6. Around 15th July, 2009, A-1, A-2, A-3 and the wife of A-1 gave beatings to the deceased on the issue of money. The deceased then called her mother (PW-2) who, with her husband Jagbir Singh (PW-3), came to the house of A-1 and tried to counsel them. A-1 to A-3 tried to manhandle PW-2 and PW-3. At that time, A-3 also beat the deceased outside the house and threatened to shoot her as she was alleging that his sister was having illicit relations with A-2. In August, 2009 a similar incident took place and the deceased had again called her parents. They visited the matrimonial house of the deceased and counselled the in-laws of the deceased that since “they have already been separated and have separate shares of property", they should look after their respective families separately. At this, A-1 threatened that he could get the deceased killed on the road when she travelled any time thereafter.
7. On 23rd October 2009, A-3 and his accomplices attacked the deceased, while
