RADHEY SHYAM Vs STATE OF RAJASTHAN
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-000593-000593 / 2005
Diary number: 25297 / 2004
Advocates: ALOK KUMAR Vs
MILIND KUMAR
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 593 OF 2005
RADHEY SHYAM … APPELLANT
Versus
STATE OF RAJASTHAN … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellant was convicted by Additional Sessions
Judge Kota, Rajasthan for offence punishable under Section
302 of the IPC. He was sentenced to life imprisonment.
2. In short, the case of the prosecution is that on
24/2/1997, the appellant cut the throats of his children
Rakesh and Rajkanta with a blade in the house of his in-laws
where he was staying for his treatment. He was suffering
from tuberculosis. According to the prosecution, this
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incident was witnessed by Banwari, the brother-in-law of the
appellant. Banwari informed about it to his brother Kajod,
who had come from the market. Kajod found Rakesh dead.
Rajkanta was alive and was in pain. Kajod took her to the
doctor and the doctor declared her dead. Kajod lodged FIR.
Investigation was started. The appellant was arrested. After
completion of the investigation, the appellant came to be
charged under Section 302 of the IPC. In support of its case,
prosecution examined 14 witnesses. PW-2 Banwari is the
eye-witness. He is a child witness. His evidence is material
to the prosecution. The appellant pleaded not guilty to the
charge. He stated that he was falsely implicated in the case,
because his relations with his wife’s family were strained.
3. Shri Santosh Mishra, learned counsel appearing for the
appellant submitted that the entire case rests on the
testimony of a child witness. The child witness’s evidence
has to be carefully scrutinized and, only if it is found reliable,
it can be accepted. He submitted that PW-2 Banwari’s
evidence does not answer the test laid down by this Court in
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numerous judgments and, hence, no reliance can be placed
on him. In support of this submission, counsel relied on
Rameshwar s/o. Kalyan Singh v. The State of
Rajasthan1, Panchhi & Ors. v. State of U.P.2,
Ratansinh Dalsukhbhai Nayak v. State of Gujarat3
and Raj Kumar v. State of Maharashtra4. He
submitted that the entire incident appears to be inherently
improbable. If throats of two children were cut with a blade,
they would have raised loud cries and that would have
brought the neighbours to the room. Counsel submitted that
there are inconsistencies in the evidence of the witnesses.
The story that PW-2 Banwari saw the incident through the
hole of the door is difficult to digest. Counsel submitted that
recovery of blade from the possession of the appellant is
also not proved. Motive is also not established. In the
circumstances benefit of doubt must be given to the
appellant, who is in jail for about 19 years.
1 AIR (39) 1952 SC 54 2 (1998) 7 SCC 177 3 (2004) 1 SCC 64 4 (2009) 15 SCC 292
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4. Shri Milind Kumar, learned counsel for the State, on the
other hand, submitted that child witness PW-2 Banwari
inspires confidence. It is established that the appellant was
alone in the room with his children and, hence, none else but
he can be held responsible for their murder. Counsel
pointed out that pertinently on the clothes of the appellant,
blood was found. The blood group of those stains matched
with that of the blood found on the clothes of deceased
Rajkanta. This indicates that the appellant killed his
children. Counsel submitted that, therefore, the conviction
and sentence of the appellant be confirmed.
5. The post-mortem notes make it clear that the throats of
the children were cut. We have gone through the evidence
rather minutely because we felt that the approach of the
trial court and the High Court was not right. We shall
therefore briefly refer to the evidence.
6. There is no challenge to the prosecution case that at
the material time, the appellant was staying in his in-law’s
house with his children. PW-1 Kajod stated that on the date
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of incident at about 2.00 p.m., the appellant sent him to
bring Kachodi and Jalebi. Within half an hour, he came back.
Since deceased Rakesh had high fever, the appellant told
him to bring a tablet from the shop. When he came back
with a tablet, he saw a crowd gathered in front of his house.
The appellant was holding a blade in his hand and throats of
Rakesh and Rajkanta had been cut. Rajkanta was in pain.
He lifted her and took her to Dr. R.N. Khan, where she was
declared dead. He brought her home. He then gave his
statement to the police. In his cross-examination he stated
that his sister and mother had gone to the market. He
added that his sisters PW-3 Suganya and PW-10 Nati had
gone to the market and when he went to purchase the tablet
there was no one present at home except the appellant and
his children Rakesh and Rajkanta. When his police statement
was shown to him, he stated that he could not say why the
fact that he had seen a blade in the appellant’s hand was not
recorded by the police. He then stated that he did not see
the blade in the appellant’s hand. He denied that the police
recovered the blade from the almirah. He added that the
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blade was in possession of the police. He stated that when
he came back, the appellant was sleeping and there was
blood on his clothes. He stated that blood stained clothes of
the appellant were seized and he signed on the panchnama.
He changed his version and stated that the police did not
seize and seal the blood stained clothes of the appellant
before him. He clearly admitted that he had not actually
seen the appellant cutting the throats of the deceased but
he got to know about it from the people. Therefore, this
witness is not an eye witness. While in examination-in-chief,
he states that he had seen the appellant holding a blade in
his hand, in the cross-examination, he denies having seen a
blade in the appellant’s hand. His case that his sisters had
gone to the market is not consistent with the evidence of
PW-2 Banwari, the eye-witness as we shall soon see. He
stated that he had conversation with deceased Rajkanta
when he was carrying her to the doctor and she named the
appellant as her assailant, but this fact is not noted in his
police statement. He has denied that blood stained clothes
of the appellant were seized in his presence, thus making
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the panchnama on which he is stated to have signed a
fabricated document.
7. PW-2 Banwari is a child witness. He was ten years old
when he gave evidence. Before we proceed to his evidence,
we must refer to the judgments of this Court on which
reliance is placed by the counsel to show how child witness’s
evidence is to be appreciated.
8. In Ratansinh Dalsukhbhai Nayak, this Court
considered the evidentiary value of the testimony of a child
witness and observed as under:
“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous
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witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”
9. In Panchhi, after reiterating the same principles, this
Court observed that the evidence of a child witness must be
evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others
tell him and, thus, a child witness is an easy pray to tutoring.
This Court further observed that the courts have held that
the evidence of a child witness must find adequate
corroboration before it is relied upon. But, it is more a rule
of practical wisdom than of law. It is not necessary to refer
to other judgments cited by learned counsel because they
reiterate the same principles. The conclusion which can be
deduced from the relevant pronouncements of this Court is
that the evidence of a child witness must be subjected to
close scrutiny to rule out the possibility of tutoring. It can be
relied upon if the court finds that the child witness has
sufficient intelligence and understanding of the obligation of
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an oath. As a matter of caution, the court must find
adequate corroboration to the child witness’s evidence. If
found, reliable and truthful and corroborated by other
evidence on record, it can be accepted without hesitation.
We will scrutinize PW-2 Banwari’s evidence in light of the
above principles.
10. PW-2 Banwari stated that on the date of incident his
sisters PW-3 Suganya and PW-10 Nati were at home. PW-1
Kajod was also there. The appellant and his children were in
the house. At about 1.00 p.m., Kajod was sent to bring
Jalebi. He was sitting outside the house. According to him
PW-3 Suganya was also sitting outside the house. At that
time, his cousin came there and asked for a matchbox. He
went to the house to bring the matchbox. From the hole of
the door he saw the appellant cutting the necks of Rakesh
and Rajkanta with a blade. He then opened the door by
inserting his fingers through the hole. He saw the appellant
cutting the neck of deceased Rakesh. He went to call his
sister PW-3 Suganya. According to him, the appellant cut
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the neck of Rajkanta while he had gone to call his sister PW-
3 Suganya. Both his sisters rushed to the room. PW-1 Kajod
also came there. Upon arrival of PW-1 Kajod, he told him the
entire story. In the cross-examination, he again reiterated
that PW-3 Suganya and PW-10 Nati were present near the
scene of offence. They were sitting with him outside the
house. Thus, there is a glaring discrepancy in the evidence
of PW-1 Kajod and this witness as regards presence of PW-3
Suganya and PW-10 Nati near the scene of offence at the
time of incident. His version that he saw the incident
through the hole of the door does not inspire confidence. He
has changed his version frequently. At one stage, he says
that when he went to bring the matchbox, he peeped
through the hole of the door and saw necks of Rakesh and
Rajkanta being cut. Then he says that he opened the door
by inserting his fingers through the hole and saw the
appellant cutting the throat of Rakesh and when he went to
call his sister, the appellant cut the throat of Rajkanta. A
doubt is, therefore, created as to whether he really saw the
incident. Moreover, if the throats of two children were cut, it
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is inconceivable that he would not have heard cries of the
children. It is also difficult to accept that at that time, his
cousin came there to ask for a matchbox and he went to the
house to bring the matchbox. This story appears to have
been created to establish that PW-2 Banwari went to the
house and saw the incident through the hole of the door. In
such a situation, when it is difficult to place reliance on the
testimony of a child witness, it is necessary to look for
corroboration to his evidence from other witnesses. We find
that the other prosecution witnesses do not corroborate the
evidence of PW-2 Banwari, at all, as we shall soon see. It is,
therefore, very difficult to rely on PW-2 Banwari’s evidence.
11. PW-3 Suganya stated that at about 2.30 p.m. the
appellant was sleeping in her maternal house at Kotdi.
Deceased Rakesh and Rajkanta were playing near him. At
that time she, her sister PW-10 Nati and children were
present there. The appellant asked for Jalebi and Kachodi.
PW-1 Kajod went and brought Jalebi and Kachodi. The
appellant ate them and gave some to his children Rakesh
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and Rajkanta. According to her, Rajkanta had fever and,
therefore, the appellant had sent PW-1 Kajod to bring
tablets. When she went inside the room, the appellant sent
her away. He told her younger sister PW-10 Nati that he
wanted to ease himself and, therefore, PW-10 Nati should
stay outside. PW-10 Nati then sat in the courtyard along
with the children. After that, the appellant shut the door.
Thereafter, when she went with a tablet to the house, PW-10
Nati told her that as the appellant wanted to ease himself
she should not go inside. She, therefore, sat outside the
house. Thereafter, her cousin Man Singh came there. He
wanted a matchbox. PW-2 Banwari went to the house to
bring the matchbox. PW-2 Banwari saw through the hole of
the closed door the appellant cutting the throat of his
daughter with a blade. Thereafter, he unbolted the door by
putting his fingers inside. He then screamed that the
appellant had cut the throats of the children and called her.
She rushed to the room. She saw the appellant sitting
inside the room after cutting the throats of his children.
There was blood in the room. Clothes of the appellant were
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also blood stained. When she entered the room, she did not
see anything in the hands of the appellant. She saw a blade
lying there. According to her, PW-1 Kajod took the children
to the hospital but the children were dead. She admitted
that she went to the room after PW-2 Banwari called her and
she had not seen anything before that. It is clear from PW-3
Suganya’s evidence that she is not an eye-witness. Her
version differs from that of PW-2 Banwari. PW-2 Banwari
stated that he saw Rakesh’s throat being cut. He went to
call PW-3 Suganya. By that time, the appellant had cut the
throat of Rajkanta. PW-3 Suganya stated that PW-2 Banwari
saw that the appellant had cut the throats of the children.
He screamed and, thereafter, she rushed to the house.
12. PW-7 Prithviraj turned hostile. He did not support PW-1
Kajod’s version that he accompanied PW-1 Kajod to the
doctor when PW-1 Kajod carried Rajkanta to the doctor; that
he was present when the incident took place and that he
saw the chopped throats of the deceased children. PW-10
Nati, the sister of PW-1 Kajod also turned hostile. She went
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to the extent of saying that she did not know who killed
Rakesh and Rajkanta.
13. PW-12 Tej Singh, the Investigating Officer gave a new
twist to the prosecution story. He stated that while in
custody, the appellant gave information that he had hidden
a blade in the upper section of an almirah situated in the
room. He recorded the said statement and, pursuant to the
said statement, he seized the blade, which was kept in the
almirah and sealed it. This is contrary to the evidence of
PW-1 Kajod that the blade was in the hand of the appellant
and the evidence of PW-3 Suganya that the blade was lying
in the room. He also stated that the appellant was admitted
in the hospital because he was unwell. However, he
admitted that no hospital record was produced by him about
the admission of the appellant in the hospital. He stated
that he did not know whether there were any cut marks or
abrasions on the fingers of the appellant. PW-13 Vimala is
the wife of the appellant. Her evidence gives a set back to
the prosecution case. She stated that she went to the
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market leaving her deceased children with the appellant.
According to her, she rushed to the house when the police
told her that the appellant had cut the throats of her
children. Surprisingly, in the cross-examination, she stated
that the appellant used to love her children very much and
that he was also not angry with her. She further stated that
the appellant was a normal person and was not suffering
from insanity.
14. Upon a careful perusal of the evidence on record, we
feel that there are too many drawbacks in the prosecution
case. Firstly, we find the prosecution story to be inherently
improbable. The post-mortem notes of the deceased
children show that their throats were badly cut. The injury of
Rajkanta is described as under:
“Incised wound 13”x1”xTr.cut Tr.upto cervical vertebral column in front of neck middle region cutting all structures including muscles, vessels, nerves, trachea & Oesophagues etc. Bleeding profusely & soft red clots present.
The cause of death was shock as a result of ante mortem injury to neck leading to haemorrhage.”
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The injury of Rakesh is described as under:
“Incised wound 8”x1”xTr.cut Tr.upto vertebral column (Cervical) x 1.1/2” cutting all structures including muscles, vessels, trachea, Oesophagues & nerves etc. Bleeding profusely & soft red blood clots.
The cause of death was shock as a result of ante mortem injury to neck leading to haemorrhage.”
There is nothing to suggest that the children were
drugged. If the appellant had cut the throats of the children
in such a brutal manner leading to above-mentioned serious
injuries, the children would have raised loud cries drawing
attention of PW-2 Banwari and his sisters PW-3 Suganya and
PW-10 Nati to the house. Neighbours would have also
rushed there. It is inconceivable that the appellant would
carry out such a sinister operation within a short span,
quietly without drawing attention of people sitting outside.
Moreover, while the appellant was cutting the throat of one
child, the other child would have reacted and tried to stop
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him. The children would certainly have resisted the attempt
in their own way. The appellant is stated to have used a
shaving blade which had sharp edges on both sides. In the
scuffle which must have ensued, the appellant must have
received injuries on his fingers. As already noted, the
appellant was admitted in a hospital but the Investigating
Officer has not produced his hospital record which could
have shown injuries sustained by him on his fingers. The
prosecution story that blade was used by the appellant is
also not established. PW-1 Kajod stated that he saw the
appellant holding a blade in his hand. In the cross-
examination, he stated that he did not see a blade in the
appellant’s hand, but it was in possession of the police. PW-
3 Suganya stated that she saw the blade lying in the room.
PW-12 Tej Singh, the Investigating Officer introduced an
entirely new story. He stated that the blade was discovered
at the instance of the appellant from the upper section of an
almirah where the appellant had hidden it. Thus, the
prosecution case that the appellant used a blade is shrouded
in suspicion.
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15. Another significant lacuna in the prosecution case is the
contradictory statements of PW-1 Kajod and PW-2 Banwari
as regards presence of PW-3 Suganya and PW-10 Nati in the
house. While PW-1 Kajod stated that they were not present,
PW-2 Banwari stated that they were present and, in fact, on
seeing the incident, he called PW-3 Suganya to the house. If
the two sisters were present, there was no need for them to
wait for a call from PW-2 Banwari. The children’s cries would
have made them run to the house. It is, therefore, doubtful
whether the deaths of Rakesh and Rajkanta occurred in a
manner in which the prosecution wants to project they had
occurred.
16. The appellant’s wife has gone on record to say that the
appellant was a normal person; that he was not suffering
from insanity; that he loved her children very much and that
he was not angry with her. If the appellant had killed her
two children, she would never have given such a certificate
to him. PW-3 Suganya stated that the appellant sent for
Kachodi and Jalebi and when PW-1 Kajod brought them, he
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gave them to his children Rakesh and Rajkanta. This
happened just before the incident. PW-1 Kajod stated that
because Rakesh was having fever, the appellant sent him to
buy tablets. These are not signs of a person who would want
to kill his children. Nothing has been brought on record to
suggest why the appellant killed his children. The
prosecution has failed to prove motive. It is true that if there
is eye-witness account, absence of motive is immaterial. But
as we have already noted the evidence of lone eye-witness
i.e. child witness PW-2 Banwari does not inspire confidence.
The other evidence on record is so infirm that it cannot
supply the required corroboration to his evidence.
17 It is the prosecution case that the clothes of the
appellant were blood stained and that blood group of the
blood found on the clothes of deceased Rajkanta was the
same as the blood group of the blood found on the clothes of
the appellant. Blood found on the clothes of Rakesh is
stated to be of ‘O’ group. Pertinently, the pancha to the
seizure panchnama under which the clothes of the appellant
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and deceased children were seized, has turned hostile. PW-1
Kajod who is signatory to the panchnama of seizure of
clothes denied that the clothes of the appellant were seized
before him. The blood groups of the appellant, deceased
Rajkanta and deceased Rakesh were not ascertained. To
establish its case, the prosecution should have brought on
record blood group of the appellant, blood groups of the
deceased children and the medical record of the appellant
from the hospital in which he was admitted. Moreover, the
prosecution case that the blood found on the clothes of the
appellant was of the same group as that of the blood found
on the clothes of Rajkanta, was not put to the appellant in
his statement recorded under Section 313 of the Criminal
Procedure Code. This is a most vital circumstance which, if
established, would have linked the appellant to the crime in
question. It was obligatory on the part of the prosecution to
put it to the appellant so that he could have offered
explanation for the same. The prosecution failed to do so.
This is a serious lacuna which cannot be condoned.
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18. It is also surprising that if the appellant had committed
such a heinous crime he would continue to sit in the room.
His first reaction would have been to run away. It is also
difficult to appreciate as to how those who had gathered at
the scene of offence kept quiet after seeing such a
gruesome crime. The reaction of the people would have
been to take him to the police station. The prosecution is
heavily relying on the fact that the appellant was alone in
the room along with the children and no one else could have
gone inside the room to kill the children. Normally, this
argument would have impressed us if the prosecution had
established the other circumstances to the hilt. But in this
case the prosecution has not established even a single
circumstance beyond doubt. We are of the opinion that the
prosecution has suppressed the genesis of the case. The
incident does not appear to have happened in the manner in
which the prosecution wants the court to believe it had
happened. The police came to the scene after about one
hour. As to what happened in between is anybody’s guess.
The story of alleged dying declaration of Rajkanta is not
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established. The discovery of blade from the almirah is not
established and has rightly been rejected by the trial court.
The panch witness turned hostile. Resultantly, the
recoveries are not established. PW-13 Vimala, the wife of
the appellant, categorically stated that the appellant loved
his children and he was a normal person. His conduct prior
to the incident does not suggest guilty mind. He fed his
children Jalebi and Kachodi. He ordered tablets for Rakesh
because he had high fever. The injuries suffered by the
children are so grave that the children would have raised
cries. Nobody has stated that they heard any cries. The
story that the child witness saw the incident through the
hole is difficult to digest. No independent witness has been
examined and the evidence of all the witnesses is replete
with inconsistencies. All these circumstances make the
prosecution story doubtful. The appellant, therefore, must
be given benefit of doubt. In the circumstances we set aside
the impugned order. The appellant is directed to be
released forthwith unless required in any other case.
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19. The criminal appeal is disposed of in the afore-stated terms.
……………………………………………..J. (RANJANA PRAKASH DESAI)
……………………………………………..J. (MADAN B. LOKUR)
NEW DELHI FEBARUARY 25, 2014.
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