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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.667 of 2011

GUL SINGH @ GULIYA & ORS.            ..... APPELLANTS

VERSUS

STATE OF M.P. & ANR.                              ..... RESPONDENTS

J U D G M E N T

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against the conviction and  

sentence of the appellants under Section 302/34 of the Indian  

Penal  Code  (IPC)  for  the  murder  of  Mishribai  for  which  they  

stand sentenced to life imprisonment apart from conviction and  

sentence of appellant Gul Singh @ Gulia under Section 376 IPC  

and  conviction  of  appellants  for  other  offences  as  appearing  

from the operative part of the order of the trial Court and the  

High Court which is clear from the impugned Judgment of the  

High Court as follows :

“The appellants have preferred this appeal against   the judgment dated 07/10/1999 of the Vth Additional   Sessions  Judge,  Indore,  passed  in  Session  Trial   No.331/1998  by  which  the  appellants  have  been   convicted under Sections 366, 368 read with Section

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34 of the Indian Penal Code to rigorous imprisonment   for  ten  yeas  and  fine  of  Rs.1,000/-,  in  default  of   payment  of  fine  to  rigorous  imprisonment  of  six   months,  under  Section  376(2)(g)  of  the  IPC  to  rigorous  imprisonment  for  ten  years  and  fine  of   Rs.1000/-  in  default  of  payment  of  fine  to  further   rigorous imprisonment for six months under Section   302/34 to imprisonment for life and fine of Rs.1,000/-,   in  default  of  payment  of  fine  to  further  rigorous   imprisonment  for  six  months;  and,  under  Section   307/34 to rigorous imprisonment for five years and  fine  of  Rs.500/-,  in  default  of  payment  of  fine  to   rigorous  imprisonment  for  three  months.   All  the  substantive  sentences  have  been  directed  to  run   concurrently.

The operative portion of the High Court judgment is as follows:

……The Appeal of Gul Singh @ Guliya is dismissed  and his  conviction  and the sentence passed against   him are maintained except that his conviction u/s 376   (2)(g)  is  altered to  Sec.  376(1)  and the punishment   awarded  thereunder  is  maintained;  the  appeal  as   regards  appellant  No.2  –  Roomal  s/o  Dalsingh  Bhil,   No.3  Gulab s/o  Thavriya  Bhil  and No.4  –  Mohan s/o   Gobriya Bhil is partly allowed.  While their conviction  u/s 366, 368/34, 302/34 and 307/34 and the sentence  awarded thereunder are maintained, their  conviction  u/s 376(2)(g) is set aside.”

2. Case of the prosecution is that on the night intervening  

24th /25th of May, 1998, while Girdhari had gone to the farm of  

his employer for driving the Tractor and other family members  

were  asleep  in  his  house,  at  02.00  mid-night,  the  accused  

persons with a view to kidnap Parubai (PW 3), arrived, armed  

with weapons like Dharia, Falia and Lathi and started assaulting  

Setulbai,  Mishribai,  Mohan and Sunderlal.   As  a  result  of  the  

deadly assault, Mishribai succumbed to the injuries on the spot,  

Sunderlal (PW 6) sustained a fracture in his hand, Mohan (PW 1)

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sustained injury on his head and both shoulders and Setulbai  

(PW 5) also sustained two incised wounds and two lacerated  

wounds,.   Thereafter  the  accused  persons  dragged  away  

Parubai (PW 3).  Later, she was subjected to rape.

3. Accordingly, First Information Report (FIR) was lodged by  

Mohan  (PW 1) and the accused were apprehended.  Though in  

the FIR only Gul Singh was named, in the statement of Sunder  

Lal  (PW 6)  to  the police all  other accused were immediately  

named. After investigation, the accused was sent up for trial.

4. A post mortem was conducted on the body of  Mishribai  

and the death was found to be homicidal with following injuries :

“(1 )Incised wound on the forehead to nose on right   side 2” x ½”  x muscle deep; (2) Incised wound on the face over the upper lip   1” x  ½” x cutting of the lip; (3) Incised wound on the chin 2” x ½” x bone   deep; (4) Penetrating wound on the right side of neck  1” x ½” x 1” cutting carotid artery.”

5. Injured Mohan (PW 1) was found to be having following  

injuries :

“(1)  Incised  wound  extending  from  neck  to  right   shoulder to the left 15 x 1 cm x ?  (2)  Incised wound over right  ear  extending to the  skull 8 cm x 1 cm x ? (3)  Incised wound 2 cm  x  ½ cm x ? anterior to   the left ear; (4)  Incised wound 2 cm x 1 cm x ? on occipital   region; (5)  Incised wound 3 cm x 1 cm x ? over the  occipital region; (6)  Incised wound  4 cm x 1 cm x ? over the  

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occipital region.”

6. Parubai (PW 3) had following injuries :

“(1) Swelling on right temporal, chin margins tender;   size 1” x 1”  (2)  Abrasion with swelling anterior left side of   knee 1” x 1”;

On internal examination there was an older tear of   hymen 10, 6, 1 O’clock margins tender in the region   and  vaginal  slide  was  prepared  for  further  investigation.”

7. Fracture was also found on the hand of Sunder Lal (PW 6).  

Prosecutrix was recovered by the police after 4-5 days of the  

incident.  She was also medically examined by Dr. Alka Verma  

(PW 18) who found an injury on the right side of her head which  

was a contusion 1” x 1”.  She was complaining of pain.  There  

was also an abrasion on the left side of the knee measuring 1” x  

1” and swelling.  In her internal examination, she found that her  

hymen was torn at 1, 6 and 10 O’clock position and the vulva  

had  signs  of  injuries,  but  there  was  no  tenderness.   She,  

therefore, opined that though there was evidence that sexual  

intercourse had taken place with the prosecutrix, it could not be  

stated with any exactitude whether she was subjected to recent  

intercourse.   

8. Considering the evidence of injured witnesses, Sunder Lal  

(PW 6),  Mohan (PW 1),  Setulbai (PW 5) and Parubai (PW 3) and  

other corroborating evidence, the courts below have convicted

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and sentenced the appellants.

9. We have heard learned counsel for the parties.

10. Learned counsel for the appellants submitted that all the  

accused  were  not  named  in  the  FIR  by  Mohan  (PW  1)  and  

prosecutrix (PW 3) did not know the accused and learnt about  

their  names  only  from  their  conversation.   PW  6  was  child  

witness and his testimony could not be accepted.

11. Learned counsel for the State supported the conviction and  

sentence of all the appellants.   

12. We have carefully perused the record and find no reason  

to interfere with the findings recorded by the courts below with  

regard  to  the  conviction  of  the  appellants  for  the  murder  of  

Mishribai  and also other offences and also for the offence of  

rape committed by Gul Singh.  We find the evidence of Mohan  

(PW 1), Sunder Lal (PW 6), Setulbai (PW 5) and prosecutrix (PW  

3) to be credible.  The evidence of Sunder Lal (PW 6) who is said  

to  be  15-16  years  of  age,  also  inspires  confidence  and  is  

corroborated  by  other  evidence  on  record,  particularly  the  

evidence of the prosecutrix.   

It is well settled that evidence of child witness cannot be  

rejected  unless  the  same  is  tutored  or  unless  the  same  is  

unreliable.  In  Prakash  and  Anr. vs.  State  of  Madhya  

Pradesh  1  , it was observed : 1  (1992) 4 SCC 225

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“11………..We do not  think  that  a  boy of  about  14   years  of  age  cannot  give  a  proper  account  of  the   murder of his brother if he has an occasion to witness   the same and simply because the witness was a boy   of 14 years it will not be proper to assume that he is   likely to be tutored.”

Again, in Dattu Ramrao Sakhare and Ors. vs. State of  

Maharashtra  2  , it was observed :

“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 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.  There  is  no  rule  or   practice that in every case the evidence of such a   witness be corroborated before a conviction can be   allowed to stand but, however as a rule of prudence  the  court  always  finds  it  desirable  to  have  the  corroboration  to  such  evidence  from  other   dependable evidence on record. In the light of this   well-settled  principle  we  may  proceed  to  consider   the evidence of Sarubai (PW 2).”

In  the  present  case  not  only  the  evidence  of  the  child  

witness  is reliable and not tutored, it is corroborated by other  

testimony.   The complainant  and prosecutrix  have no axe to  

grind against the accused persons.  The accused had the motive  

2  (1997) 5 SCC 341

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to  kidnap Parubai  and they trespassed into her house armed  

with various weapons and caused death of one family member  

and caused injuries to other family members and abducted the  

prosecutrix who was recovered after 4-5 days.  All the accused  

have thus been rightly convicted and sentenced.

13. Accordingly, we do not find any ground to interfere.  The  

appeal is dismissed.

…………………………….J. [ V. GOPALA GOWDA ]

………………………………..J. NEW DELHI          [ ADARSH KUMAR GOEL ] September  16 , 2014

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ITEM NO.1D-For Judgment   COURT NO.14               SECTION IIA                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  667/2011 GUL SINGH @ GULIYA & ORS.                          Appellant(s)                                 VERSUS STATE OF M.P. & ANR.                               Respondent(s)

Date : 16/09/2014 This appeal was called on for JUDGMENT today.

For Appellant(s)                      Mr. V. Ramasubramanian,Adv.                      Mr. A. Lakshminarayanan, Adv. For Respondent(s)                      Mr. C. D. Singh,Adv.                      Ms. Sakshi Kakkar, Adv.

Hon'ble  Mr.  Justice  Adarsh  Kumar  Goel  pronounced  the  judgment of the Bench comprising Hon'ble Mr. Justice V.Gopala  Gowda and His Lordship.

The appeal is dismissed in terms of the signed order.       (VINOD KUMAR)    (MALA KUMARI SHARMA)

COURT MASTER COURT MASTER (Signed Non-Reportable judgment is placed on the file)