REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1289 of 2005

State of M.P.              …Appellant

Versus

Ramesh & Anr.                     …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred by the State of Madhya Pradesh  

against the judgment and order dated 31.3.2004 passed by the High  

Court of Madhya Pradesh at Jabalpur (Gwalior Bench) in Criminal  

Appeal  No.  262  of  1997,  reversing  the  judgment  and  order  dated  

16.8.1996 passed by the Sessions Court, Guna in Sessions Trial No.  

155/1995, convicting the respondent No.1 under Section 302 of Indian  

Penal Code, 1860 (hereinafter called as `IPC’) and respondent No.2

under Section 302 read with Section 120-B IPC, and sentencing them  

to life imprisonment.

2. FACTUAL MATRIX:  

(A) Respondent No.2 Bhaggo Bai filed an FIR dated 31.1.1995 in  

Police Station,  Ashok Nagar,  mentioning her name as Madhav Bai  

stating that  her  husband Chatra  died after  falling during a  spell  of  

giddiness at about 11.00 p.m. In respect of the same incident, another  

complaint was lodged by Munna Lal (PW.2) along with Rannu Bai  

(PW.1), daughter of deceased Chatra and Bhaggo Bai, aged about 8  

years stating that both the respondents-accused had murdered Chatra.  

After  having  a  preliminary  investigation,  the  Investigating  Officer  

arrested respondent No.2 Bhaggo Bai and lodged the FIR formally on  

4.2.1995.  

(B) After  completing  the  investigation,  a  charge-sheet  was  filed  

against both the accused for committing the murder of Chatra. A large  

number  of  witnesses  were  examined  by  the  prosecution.  Both  the  

respondents-accused  examined  themselves  as  defence  witnesses  

alongwith some other witnesses.  After concluding the trial, both the  

respondents-accused  were  convicted  and  sentenced,  as  mentioned  

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hereinabove,  by the  Sessions Judge vide judgment  and order  dated  

16.8.1996.  

(C) Being aggrieved, both the respondents –accused filed Criminal  

Appeal  No.262/1997  which  has  been  allowed  by  the  impugned  

judgment  and order  and both of  them stood acquitted.  Hence,  this  

appeal.    

3. Ms.  Vibha  Datta  Makhija,  learned  counsel  appearing  for  the  

appellant-State, has submitted that the judgment and order of the High  

Court  is  not  sustainable  in  the  eyes  of  law.  The  High  Court  has  

gravely erred in showing unwarranted sympathy towards the accused  

and dis-believed the prosecution case brushing aside the statement of  

Rannu Bai (PW.1), merely being a child witness and pointing out that  

there was contradiction in the medical  and ocular evidence regarding  

the injuries found on the person of Chatra, deceased. The High Court  

further erred in holding that there was enmity between the accused  

Bhaggo Bai  and Ramesh. At the time of death of Chatra, Ramesh  

accused was facing trial  for committing  rape on Bhagoo Bai;  thus,  

question of conspiracy between the said two accused could not arise;  

several cases were also pending in different courts between Munna  

Lal (PW.2) and his wife Kusum Bai on one hand, and Chatra and  

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Bhaggo Bai on the other hand. Thus, there was a possibility of false  

implication of Ramesh accused. Chatra died because of a fall when he  

went  to  urinate,  as  he  was  suffering  from  giddiness  all  the  time  

because he used to take ‘dhatura’ and had become a Lunatic. Chatra  

used to eat soil etc. Rannu Bai (PW.1) though a child, was able to  

understand the questions put to her and her duty to speak the truth.  

She could not have any enmity with either of the accused. The rape  

case  filed  by  deceased  Chatra  and  Bhaggo  Bai  against  accused  

Ramesh remained pending for a long time and Ramesh got acquitted  

after the death of Chatra, deceased. The Trial Court  after appreciating  

the  documentary  evidence  on  record  came  to  the  conclusion  that  

accused Ramesh committed rape upon Bhaggo Bai during  the period  

between  24.6.1991  to  17.9.1994.   In  fact,  they  were  having  illicit  

relationship  for  a  period  of  more  than  3  years.   The  High  Court  

brushed aside the said finding without giving any cogent reason. The  

allegation  that  Rannu  Bai  (PW.1)  had been tutored by  Munna Lal  

(PW.2) could not be spelled out from her statement. The neighbours  

had come at the place of occurrence after being called by Rannu Bai  

(PW.1) and Munna Lal (PW.2).  In spite of the fact that some of them  

had declared hostile, part of their evidence still could be relied upon in  

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support of the prosecution case.  Therefore, the judgment and order of  

the High Court, impugned is liable to be set aside, and appeal deserves  

to be allowed.   

4. On the contrary, Ms. K. Sarada Devi, learned counsel appearing  

for the respondents, has submitted that the facts and circumstances of  

the  case  do  not  warrant  interference  by  this  Court  against  the  

judgment and order of acquittal by the High Court. The High Court  

being  the  first  appellate  court  and  the  final  court  of  facts  had  

appreciated the entire evidence on record and came to the conclusion  

that  it  was  not  possible  that  Bhaggo  Bai  could  have  hatched  a  

conspiracy with Ramesh accused for committing  the murder of her  

husband Chatra during the pendency of the case filed by her against  

Ramesh under Section 376 IPC.  Munna Lal (PW.2), his wife and son  

had also assaulted the deceased Chatra and Bhaggo Bai, accused and  

wanted to grab their property and so many civil and criminal cases  

were pending between them, his evidence cannot be relied upon.  As  

per the medical evidence, it was possible that the injuries suffered by  

Chatra could have been received by fall caused by giddiness.  More  

so,  Chatra had become a lunatic and could not understand right or  

wrong.  The testimony of Rannu Bai (PW.1),  has been rightly dis-

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believed by the High Court as she had been tutored by Munna Lal  

(PW.2). Admittedly, she had been living with him since the death of  

her father Chatra.  The High Court has rightly believed the defence  

version  and  appreciated  the  depositions  of  defence  witnesses,  

including Radha Bai (D.W.1), elder daughter of Bhaggo Bai accused,  

in the correct perspective. The appeal lacks merit and is liable to be  

dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

CHILD WITNESS :

6.    In  Rameshwar S/o Kalyan Singh v. The State of Rajasthan,  

AIR 1952 SC 54, this Court examined the provisions of Section 5 of  

Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and  

held  that  every  witness  is  competent  to  depose  unless  the  court  

considers that he is prevented from understanding the question put to  

him, or from giving rational answers by reason of tender age, extreme  

old age, disease whether of body or mind or any other cause of the  

same  kind.   There  is  always  competency  in  fact  unless  the  Court  

considers otherwise.  

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The Court further held as under:

“…..It is desirable that Judges and magistrates   should always record their opinion that the child   understands  the  duty  of  speaking  the  truth  and  state why they think that, otherwise the credibility   of the witness may be seriously affected, so much  so, that in some cases it may be necessary to reject   the  evidence  altogether.   But  whether  the   Magistrate  or  Judge  really  was  of  that  opinion  can, I think, be gathered from the circumstances   when there is no formal certificate….”  

7.      In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC  

959, this  Court  while  dealing with the evidence of  a child witness  

observed that there was always scope to tutor the child, however, it  

cannot  alone be a ground to come to the conclusion that  the child  

witness  must  have  been tutored.   The  Court  must  determine as  to  

whether the child has been tutored or not.  It can be ascertained by  

examining the evidence and from the contents thereof as to whether  

there are any traces of tutoring.      

8. In  Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this  

Court  while  placing  reliance  upon  a  large  number  of  its  earlier  

judgments  observed that the testimony of a child witness must find  

adequate corroboration before it is relied on.   However, it is more a  

rule  of  practical  wisdom than  of  law.  It  cannot  be  held  that  “the  

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evidence  of  a  child  witness  would  always  stand  irretrievably  

stigmatized.  It is not the law that if a witness is a child, his evidence  

shall be rejected, even if it is found reliable. The law is that 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 prey to tutoring.”

9. In  Nivrutti  Pandurang  Kokate  &  Ors.  v.  State  of  

Maharashtra,  AIR 2008 SC 1460, this Court dealing with the child  

witness has 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   witnesses  as  they  are  pliable  and  liable  to  be   influenced  easily,  shaped 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  

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obstacle in the way of accepting the evidence of a   child witness.”  

10. The evidence of a child must reveal that he was able to discern  

between right and wrong and the court may find out from the cross-

examination  whether  the  defence  lawyer  could  bring  anything  to  

indicate that the child could not differentiate between right and wrong.  

The  court  may  ascertain  his  suitability  as  a  witness  by  putting  

questions to him and even if no such questions had been put, it may be  

gathered  from his  evidence  as  to  whether  he  fully  understood  the  

implications of what he was saying and whether he stood discredited  

in facing a stiff cross-examination.  A child witness must be able to  

understand the sanctity of giving evidence on a oath and the import of  

the questions that were being put to him. (Vide:  Himmat Sukhadeo  

Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).

11. In  State of  U.P.  v.  Krishna Master & Ors.,  AIR 2010 SC  

3071,  this  Court  held  that  there  is  no  principle  of  law  that  it  is  

inconceivable  that  a  child  of  tender  age  would  not  be  able  to  

recapitulate the facts in his memory.  A child is always receptive to  

abnormal events which take place in his life and would never forget  

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those  events  for  the  rest  of  his  life.   The  child  may  be  able  to  

recapitulate carefully and exactly when asked about the same in the  

future.   In case the child explains the relevant events  of the crime  

without  improvements  or  embellishments,  and  the  same  inspire  

confidence  of  the  Court,  his  deposition  does  not  require  any  

corroboration whatsoever. The child at a tender age is incapable of  

having any malice or ill will against any person. Therefore, there must  

be something on record to satisfy the Court that something had gone  

wrong between the  date  of  incident  and recording  evidence  of  the  

child  witness  due  to  which  the  witness  wanted  to  implicate  the  

accused falsely in a case of a serious nature.  

12.      Part of the statement of a child witness, even if tutored, can be  

relied upon, if the tutored part can be separated from untutored part, in  

case such remaining untutored part inspires confidence.  In such an  

eventuality the untutored part can be believed or at least taken into  

consideration  for  the  purpose  of  corroboration  as  in  the  case  of  a  

hostile witness. (Vide:  Gagan Kanojia & Anr. v. State of Punjab,  

(2006) 13 SCC 516).

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13. In view of the above, the law on the issue can be summarized to  

the  effect  that  the  deposition  of  a  child  witness  may  require  

corroboration, but in case his deposition inspires the confidence of the  

court and there is no embellishment or improvement therein, the court  

may rely upon his evidence. The evidence of a child witness must be  

evaluated more carefully with greater  circumspection because he is  

susceptible to tutoring.  Only in case there is evidence on record to  

show that a child has been tutored, the Court can reject his statement  

partly or fully. However, an inference as to whether child has been  

tutored or not, can be drawn from the contents of his deposition.  

APPEAL AGAINST ACQUITTAL:

14. We are fully alive of the fact that we are dealing with an appeal  

against acquittal and in the absence of perversity in the said judgment  

and  order,  interference  by  this  Court  exercising  its  extraordinary  

jurisdiction, is not warranted. It is settled proposition of law that the  

appellate court being the final court of fact is fully competent to re-

appreciate,  reconsider  and  review  the  evidence  and  take  its  own  

decision.  Law  does  not  prescribe  any  limitation,  restriction  or  

condition on exercise of such power and the appellate court is free to  

arrive at its own conclusion keeping in mind that acquittal provides  

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for  presumption  in  favour  of  the  accused.   The  presumption  of  

innocence  is  available  to  the  person  and  in  criminal  jurisprudence  

every person is presumed to be innocent unless he is proved guilty by  

the  competent  court  and  there  can  be  no  quarrel  to  the  said  legal  

proposition that if two reasonable views are possible on the basis of  

the  evidence  on  record,  the  appellate  court  should  not  disturb  the  

findings of acquittal.  

INJURIES:

15. Dr. D.K. Jain (P.W.8) has performed Post Mortem of Chatra,  

deceased. He found following injuries on his person vide Post Mortem  

Report Ex.P-8:

(i) A contusion of size 1 cm x 1 cm on the L of mandible on right  

side with an abrasion on upper part of contusion 1 cm x 0.3 cm  

obliquely. Sub-cutaneous haemorrhage present.  

(ii) An abrasion of size 0.5 cm x 0.2 cm 1-1/2” below the above  

contusion over neck. Sub-cutaneous haemorrhage present.  

(iii) An abrasion of size 0.5 cm x 0.2 cm 1.5 cm below and lateral to  

L of mandible right on neck.

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(iv) An abrasion of  size 3.5  cm x 0.5 cm over  left  side of  neck  

posterior  laterally  on  upper  part,  transversely  oblique  going  

upwards. Sub-cutaneous haemorrhage present.  

(v) A contusion over lower lip right side near to L of mouth of size  

0.5 cm x 0.5 cm sub-cutaneous haemorrhage present.

(vi) An abrasion over right shoulder posterior laterally of size 4 cm  

x 1.5 cm post mortem in nature.      

Dr. D.K. Jain (P.W.8) opined that injury No.(vi) was after the  

death. On internal examination, he found the right pleura adherent to  

lung parietes. Both the lungs were enlarged. On further dissection, he  

found  a  sub-cutaneous  haemorrhage  present  in  supra  sternal  notch  

area. Blood mixed fluid with froth stood discharged through mouth  

and noise. According to the doctor, cause of death was on account of  

‘asphyxia’ as a result of throttling. No piece of cloth or thread was  

found inside the mouth of the deceased. The deceased had an ailment  

of  the lungs.  

16. The Trial Court after considering the entire evidence on record  

came to the conclusion that the injuries found on the person of the  

deceased could not have been received from a fall on the ground. The  

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injuries found on his body are in consonance with the deposition of  

Rannu Bai (P.W.1),  who has stated that after hearing the noise, she  

woke up and saw that accused Ramesh was beating her father with  

“Gumma” (a hard object made of cloth), and her mother had caught  

hold of the deceased by his legs. The doctor had found that blood had  

oozed from his mouth and such injury could be possible as per the  

case of the prosecution. Undoubtedly, Munna Lal (PW.2) has deposed  

that Ramesh had caused injuries with the knife. The High Court has  

given undue weightage to his statement. In fact, as per the prosecution  

case, Munna Lal (PW.2) was not an eye witness.  He was called by  

Rannu Bai (PW.1) and reached the place of occurrence along with  

some other persons.  

17. In Sukhar v. State of U.P., (1999) 9 SCC 507, this Court has  

explained  the  provisions  of  Section  6  of  the  Evidence  Act,  1872  

observing that it is an exception to the general rule whereunder the  

hearsay evidence becomes admissible.  However, such evidence must  

be almost contemporaneous with the acts and there should not be an  

interval which would allow fabrication.  The statements sought to be  

admitted,  therefore,  as  forming part  of  res  gestae,  must  have  been  

made contemporaneously with the acts or immediately thereafter.  The  

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essence of the doctrine is that a fact which, though not in issue, is so  

connected  with  the  fact  in  issue  “as  to  form  part  of  the  same  

transaction” that it becomes relevant by itself.

18. Applying  the  ratio  of  the  said  judgment  to  the  evidence  of  

Munna  Lal  (PW.2),  we  reach  the  conclusion  that  his  statement  

indicating that Rannu Bai (PW.1) had come to him and told that her  

father  was  beaten  by  Ramesh  with  the  help  of  her  mother,  is  

admissible under Section 6 of the Evidence Act.

19. Mrs.  K.  Sarada  Devi,  learned  counsel  appearing  for  the  

respondents has drawn our attention to certain minor contradictions in  

the statement of Rannu Bai (PW.1) and Munna Lal (PW.2).  She has  

placed a very heavy reliance on the statement of Rannu Bai (PW.1)  

that first she had gone to the house of her grandfather Lala and the  

trial Court committed an error reading it as Munna Lal (PW.2).  In  

view of the fact that Bhaggo Bai, respondent/accused herself stated in  

her  cross-examination  while  being  examined  under  Section  315  

Cr.P.C.  that  she  had  sent  Rannu  Bai  (PW.1)  to  call  Munna  Lal  

(PW.2), such argument looses the significance.  Even otherwise, the  

omissions/contradictions pointed out by Mrs. K. Sarada Devi are of  

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trivial  nature  and  are  certainly  not  of  such  a  magnitude  that  may  

materially affect the core of the prosecution case.  

20. The witness examined by the prosecution supported its case to  

the extent that  the door of the room wherein the offence had been  

committed was bolted from inside. It was only when Ram Bharose,  

village Watchman  (P.W.5)  threatened Bhaggo Bai, accused saying  

he would call  the police,   the door was opened and,  by that  time,  

accused Ramesh had left the place of occurrence and Chatra had died.  

Thus, there is no conflict between the medical and ocular evidence.  

The prosecution case is fully supported by Ram Bharose (PW.5) and  

partly supported by Hannu (PW.7) and Anand Lal (PW.3). Even the  

part of the depositions of hostile witnesses,  particularly Basori Lal,  

Sarpanch (PW.4) can be relied upon to the extent that on being called,  

he reached the place of occurrence and found that the room had been  

bolted from inside. It is also evident from the evidence on record that  

Rannu Bai (PW.1) and Munna Lal (PW.2) had called the persons from  

their houses and after their arrival,  they found that the room had been  

bolted from inside. So to that extent, the version of these witnesses  

including of the hostile witnesses, can be believed and relied upon.  

The  post  mortem  report  clearly  explained  that  Chatra  died  of  

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‘Asphyxia’ and this version has been fully supported by Dr D.K. Jain  

(PW.8).  

21. Bhaggo Bai, accused/respondent has admitted in her statement  

under  Section  313  of  the  Code  of  Criminal  Procedure,  1973  

(hereinafter called as ‘Cr.P.C.’)  that Rannu Bai (PW.1) was present  

inside  the  room/place  of  occurrence  and  she  further  admitted  that  

Rannu Bai, (PW.1) had gone to call Munna Lal (PW.2) at the relevant  

time.  Thus,  it  is  evident  from the  aforesaid  admission  of  the  said  

accused itself that both the persons were present inside the room and  

are well aware of the incident.  

22. Undoubtedly, there had been some minor contradictions in the  

statements of witnesses in regard to the fact as to who had reached the  

place of occurrence first. All the witnesses have affirmed in one voice  

that Munna Lal (P.W.2) had entered the room and after coming out,  

he disclosed that Chatra has died. In fact, this fact had been affirmed  

by all the witnesses. In view of the contradictions in the statements of  

witnesses as to whether torch was used to create artificial light in the  

room or not to find out the scene therein, becomes immaterial. It is  

evident from the material available on record that there was only one  

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room house where the  incident  took place and no other  space was  

available.  Thus,  in  case  the  other  witnesses  had  not  deposed  that  

Radha Bai (D.W.1) was also present in the house along with accused  

Bhaggo Bai, remains immaterial  for the reason that her presence is  

natural.  

23. The  Trial  Court  after  taking  note  of  rulings  of  various  

judgments of  this  Court  as  what  are  the  essential   requirements  to  

accept the testimony of a child witness held as under:   

“In  the  present  case,  statement  of  child  witness   gets affirmed by the  circumstances of the incident, facts   and from the activities of the other witnesses carried out   by them on reaching at the place of occurrence.  Thus,   on the basis of above-said law precedents, statement of   witness  Rannu Bai  not  being unreliable in my opinion  are  absolutely  true  and  correct……Statement  of  child  witness  Rannu  Bai  gets  affirmed  by  the  statements  of   Munna  and  witness  Hannu  and  from  the  medical   evidence.  Therefore,  facts  of  the  above-stated  law  precedents are not applicable to the present case.”

In view of the above, it is evident that the statement of Rannu  

Bai (P.W.1) is affirmed by the statements of other witnesses, proved  

circumstances  and medical  evidence.  Her  deposition  being precise,  

concise, specific and vivid without any improvement or embroidery is  

worth acceptance in toto.  

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24. A very heavy reliance has been placed by defence counsel Ms.  

K. Sarada Devi on the statements of defence witnesses, particularly,  

Radha  Bai  (D.W.1).  However,  it  may  be  relevant  to  point  out  the  

initial part of her statement made in examination-in-chief:

“In view of the witness’s age before she was sworn  she was asked as under:

Q. Are you literate? Have you gone to school   for reading?

A. No. Q. Do  you understand right or wrong? A. I do not understand. Q. Do you understand Saugandh or Sau (Oath  

or hundred) A. I do not know.

Considering  the  said  answers  of  the  witness  it   appears  that  the  witness  does  not  understand  right,   wrong or oath, therefore the witness was not sworn.”

           (Emphasis added)

In view of the above, we are of the view that it cannot be safe to  

rely upon her evidence at all.  

25.  So far as the deposition of Budha (DW.2), father of Bhaggo  

Bai,  accused, is concerned,  he was 80 years of age at the time of  

examination and not the resident of the same village. He has  deposed  

only on the basis of the information he had received from his daughter  

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Bhaggo Bai, accused.   Thus, he is not of any help to the defence as  

we see no reason to believe the theory put forward by the defence.   

26.   Complaint was lodged promptly at 6.00 a.m. on 1.2.1995  in the  

Police Station, Ashok Nagar at a distance of 8.00 K.Ms. It may also  

be relevant to mention herein that formal FIR was lodged on 4.2.1995  

after  having  preliminary  investigation  and  arresting  Bhaggo  Bai  

accused.   Bhaggo  Bai  herself  has  reached  the  Police  Station   and  

lodged the complaint that her husband Chatra died because of falling  

from giddiness when he went to ease himself outside the house. This  

version has been dis-believed by the I.O. as well as by the Trial Court.  

In our considered opinion, Bhagoo Bai would not have moved in the  

night for 8 K.Ms. to lodge the FIR, if she was not at fault or having a  

guilty  mind.  Secondly,  she  lodged  the  complaint  in  the  name  of  

Madhav Bai and not in her own name Bhaggo Bai.  

27.     The cumulative effect of reading the provisions of Article 20(3)  

of the Constitution with Sections 161(2); 313(3); and proviso (b) to  

Section 315 Cr.P.C. remains that in India, law provides for the rule  

against adverse inference from silence of the accused.

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Statement of the accused made under Section 313 Cr.P.C. can  

be taken into consideration to appreciate the truthfulness or otherwise  

of the prosecution case.  However, as such a statement is not recorded  

after  administration  of  oath  and  the  accused  cannot  be  cross-

examined, his statement so recorded under Section 313 Cr.P.C. can  

not be treated to be evidence within the meaning of Section 3 of the  

Evidence Act, 1872.  

Section 315 Cr.P.C. enables an accused to give evidence on his  

own behalf to disprove the charges made against him.  However, for  

such a course, the accused has to offer in writing to give his evidence  

in defence.  Thus, the accused becomes ready to enter into the witness  

box,  to  take  oath  and  to  be  cross-examined  on  behalf  of  the  

prosecution  and/or  of  the  accomplice,  if  it  is  so  required.  (Vide:  

Tukaram G. Gaokar v. R.N. Shukla & Ors., AIR 1968 SC 1050;  

and Dehal Singh v. State of Himachal Pradesh, (2010) 9 SCC 85).

In such a fact-situation, the accused being a competent witness,  

can depose in his  defence and his  evidence can be considered and  

relied upon while deciding the case.    

28.     Bhaggo Bai, accused examined herself as a defence witness  

(DW.3) and entered into the witness box. She has also been cross-

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examined on behalf of the prosecution as  well  as on behalf of co-

accused Ramesh. Bhaggo Bai/accused (DW.3) deposed that accused  

Ramesh had committed rape upon her 6 years ago  and in that case,  

criminal  prosecution  was  launched  against  him.  She  has  further  

deposed that after  her husband Chatra fell  from giddiness,  she had  

brought him inside the room with the help of her elder daughter Radha  

Bai  (DW.1) and put  him on the bed.  She herself  sent  her  younger  

daughter  Rannu Bai  (PW.1)  to  call  Munna.  Munna came and saw  

Chatra. The relevant part of her deposition reads as under:  

“…Then he (Munna) bolted the door from outside. He  called the watchman.  The watchman and Munna seeing  me in the room went to the police station…..It is right   that for the last 8-10 years, I, Chatra and Munna  had no   contact with Ramesh…..I got my name to be written as  Bhaggo Bai at the time of report Ext.D-7. My name is not   Madhav  Bai. The Policemen recorded the report in the   name of Madhav  Bai. I sent Rannu Bai to call Munna  because Munna was my husband’s elder brother.  ……………..

Q.17 Had  you  illicit  and  immoral  relations  with  the   accused Ramesh when Chatra was alive? A. What can I say?

…………..

Q. We  are  saying  that  you  had  given  twisting  statement  in  a  rape  case  on  which  the  accused   Ramesh was acquitted?

A. I gave statement.”    

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Her aforesaid statement is not worth acceptance for the reason  

that all the witnesses including those who turned hostile had admitted  

that the room was bolted from inside and her statement that Munna  

had bolted the room from outside has not been corroborated by any  

person.   In  case she and her  husband Chatra  were  not  having any  

relation with Munna (PW.2) for the last 8-10 years,  it would be un-

natural that she would send her daughter Rannu Bai (PW.1) to call  

Munna because he was her husband’s elder brother.  While lodging  

report Ext. D-7 she told her name as Madhav Bai. However, in cross-

examination  she  has  stated  that  police  men  recorded  her  name as  

Madhav Bai though her name is Bhaggo Bai. More so, she has not  

specifically denied having illicit  relationship with Ramesh accused,  

nor  she  has denied that  she  made a  twisting  statement  to  help  the  

accused Ramesh to get acquitted in the rape case.   

29.    The Trial Court after examining the entire material on record,  

particularly  the  documentary  evidence  came  to  the  conclusion  as  

under:  

“43….It  appears  on  viewing  all  the  above  documents   Exh. D-8 to D-42 that all these documents are related to   incident  of  rape of  Bhaggo Bai  committed by accused  Ramesh for the period 24.6.1991 to 17.9.1994…”   

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The High Court did not deal with this aspect at all.  

30. All the witnesses examined by the prosecution including those  

who  have  turned  hostile  are  admittedly  the  neighbours  of  Chatra  

deceased and Munna Lal. Thus, they are the most natural witnesses  

and the Trial Court has rightly placed reliance on their testimonies.     

31.     After  appreciating the entire evidence on record, we came to  

the  inescapable  conclusion  that  the  High  Court  has  completely  

ignored  the  most  material  incriminating  circumstances  which  

appeared against the respondents/accused.  The findings so recorded  

by the High Court are contrary to the evidence on record and thus, are  

held to be perverse.  

32. In view of the above, the appeal deserves to be allowed and it is  

hereby allowed.  The judgment  and order of the High Court  dated  

31.3.2004 in Criminal Appeal No.262 of 1997 is hereby set aside and  

the judgment and order of the trial Court dated 16.8.1996 convicting  

the  respondents/accused  under  Section  302  IPC  in  Sessions  Trial  

No.155/1995 is hereby restored.  A copy of the judgment be sent to  

the Chief Judicial Magistrate, Guna, M.P. to take the said respondents  

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into custody and to send them to jail to serve the remaining part of the  

sentence.     

                                                           ……………………….........J.                                                             (P. SATHASIVAM)

                                                           ……………………….........J.                                                             (Dr. B.S. CHAUHAN) New Delhi, March   18, 2011

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