NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1333 of 2011

STATE OF RAJASTHAN                        Appellant(s)

VERSUS

MADAN @ MADANIYA                            Respondent(s)

J U DGMENT

N. V. RAMANA, J.    

1. This appeal by special leave is directed against the judgment and

order dated 16.04.2010 passed by the High Court of Judicature

for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 678 of

2004,  whereby the  High  Court acquitted the accused of the

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charges under Sections 302 and 460 of the IPC, giving him the

benefit of doubt.

2. Brief facts  according to the  prosecution  case  necessary for the

disposal of this case are as follows. On receiving an anonymous

telephonic information, regarding the killing of one Smt.

Santosh,  daughter  of  Devki  Devi  Mali, the Police  reached  the

spot of occurrence and recorded the statement of P.W.10­Smt.

Devki Devi, mother of the deceased. Therein, P.W.10­Smt. Devki

Devi,  alleged that, the  accused­Respondent,  used to  reside  in

vicinity and was harboring vengeance against the deceased

Santosh as he believed that, few days earlier he was assaulted

by 7­8 men, at the instance of the deceased Santosh. On the

date of the incident, while the P.W.10 was at her agricultural

farm, at about 6:00 A.M, P.W.5­Seema, her  minor daughter

came up to her and informed that, in the preceding night, the

accused­Respondent along with one person entered their home

at  around  02:00  A.M.  and  gave lathi  blows to the  deceased,

consequent to  which she died. P.W.10­Devki  Devi, thereafter

immediately rushed to the  house  and found the  body  of the

deceased lying on the roof.  

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3. On the  basis  of the  aforesaid statement  made by  P.W.10  (Smt.

Devki Devi), a case was registered against the accused­

Respondent and another person, thereafter they were arrested

and subsequent recoveries were made in this regard. After

completion of the investigation, a charge sheet was filed charging

the accused persons for offence punishable under Sections 302,

460 and 34 of IPC. Thereafter, the accused persons were put on

trial as they did not plead guilty to the charges leveled against

them.

4. The trial Court vide order dated 11.06.2004, convicted the accused

for offences under Sections 302 and 460 IPC. Accordingly, he

was sentenced to undergo imprisonment for life under Section

302 of IPC, with fine of Rs.1000 and in default of payment of

fine, the accused was directed to  undergo 2 months rigorous

imprisonment. He was also directed to undergo 10 years

rigorous imprisonment for conviction under Section 460 of IPC

with a  fine of  Rs.500/­ and  in default  of  payment  of fine, to

further undergo one­month rigorous imprisonment.

5. On the other  hand, the co­accused Sheokar  @ Sheokumar was

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acquitted by the trial Court after being given the benefit of doubt

for the charges levelled against him under Sections 302 and 460

IPC.

6. Aggrieved by the above order of conviction, the accused­

respondent preferred an appeal before the High Court. The High

Court allowed the appeal and set aside the order of conviction

and sentence awarded by learned Sessions Judge. The benefit of

doubt was extended in favor of the accused and he was

acquitted from all the charges.  

7. Aggrieved by the impugned order passed by the High Court, the

State of Rajasthan has preferred this appeal.

8. The counsel for the appellant­State has submitted that, the High

Court has gravely erred  while passing the order of acquittal

despite the existing ocular evidence as well as forensic evidence

wherein the guilt of the accused was clearly established.

9. On the other hand, the counsel for the accused­respondent, while

supporting the order of acquittal has submitted that, on

objective appreciation of evidence, a reasonable doubt exists for

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disbelieving the case advanced by the prosecution. Hence, the

High Court  was  right in  granting the  benefit  of  doubt to the

accused­respondent.

10. Heard learned counsels for the Parties. In an appeal against

acquittal, the appellate court would only interfere where there

exists perversity of fact and law. [See Bannareddy and Ors. vs.

State of Karnataka and Ors,  (2018) 5 SCC 790] Further, the

presumption of innocence is further reinforced against the

acquitted­accused by having a judgment in his favor. [See

Rabindra Kumar Pal  @ Dara Singh v.  Republic  of India,

(2011) 2 SCC 490 in para. 94].  

11. In light of the same, before we proceed to deal with the case, it

would be appropriate to render a look at the statements of

certain prosecution witnesses.

12. P.W.5 (Seema) aged  14, is the sister of the deceased and the

accused respondent was her maternal cousin, claimed to be an

eye­witness to the said incident. She has stated that, on the date

of occurrence while she, P.W.4 (Kaptan), deceased Santosh and

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her two sons were fast asleep on the roof, the accused­

Respondent had come to their house and had started quarrelling

with the deceased. The accused respondent, thereafter hit the

deceased on her head with a lathi due to which she fell down.

After the incident, she deposed that she went to the fields in the

following morning and informed P.W.10 (Smt. Devki Devi) about

the  aforesaid incident.  She  also stated that,  when  the  Police

came at around 9:00 A.M, her mother (Smt. Devki Devi) came

with the police, although she admitted that none of the family

members had informed the police about the incident.

13. P.W.4 (Kaptan), aged 12, is the brother of the deceased, claimed to

be an eye­witness to the said incident and the accused­

Respondent was his maternal cousin. He stated that, he, P.W. 5

(Seema), deceased Santosh and her sons were sleeping on the

terrace, while their father P.W.11 (Lalchand) was sleeping in the

courtyard. He stated that he woke up to a hue and cry, and he

saw the deceased getting assaulted in a sitting condition. He also

stated that, their house is situated in a populated neighborhood

and adjacent to their house, there was a temple and some one

was sitting on the roof during the occurrence of the  incident.

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Lastly, he stated that, none of the family members had informed

the police about the incident.

14. P.W.10 (Smt. Devki Devi), mother of the deceased, improved upon

her earlier statement and stated that, while she was working in

the fields both P.W.4 (Kaptan) and P.W.5 (Seema) came to the

field to inform about the death of the deceased Santosh.

Thereafter, she immediately returned  back to the  house and

found the body of deceased lying on the roof.  

15. P.W.11 (Lalchand), father of the  deceased, stated that,  he  was

present in house when the incident took place in the terrace, but

since the accused­respondent threatened him, he did not

interfere in the said incident. He further stated that, he sent his

minor daughter P.W.5 (Seema) at around 6:00 A.M. to the fields

to inform his wife P.W.10 (Smt. Devki Devi) about the murder of

deceased­Santosh. He further clarified that, he did not send any

neighbor to inform P.W.10 (Smt. Devki Devi) nor did he inform

the Police.  

16. P.W.2 (Sohan Singh) stated that,  he  along  with  other  villagers,

went to the residence of P.W.11 (Lalchand) and asked about the

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incident but P.W.11 (Lalchand) and P.W.10 (Devki Devi) did not

disclose any name and on the contrary stated that, they are yet

to confirm the same.  

17. It is equally pertinent to note the statements made by the accused

under Section 313 of Cr.P.C and other defense witnesses. The

accused in his statement under Section 313, Cr.P.C has stated

that, he has wrongfully been roped in as accused, due to existing

prior enmity between the parties. The accused has also stated

that, the deceased did not maintain a cordial relationship with

her husband. The husband of the deceased had threatened to

kill her pursuant to their disagreements.

18. D.W.1 (Kartar  Singh), stated that  he came to know  about the

incident  in the morning and thereafter,  he along with Gurjeet

went to fetch P.W.10, (Smt. Devki Devi) from agricultural field at

the instance of P.W.11 (Lalchand). Thereafter, all three of them

rushed to spot of occurrence by a tempo. This  witness has

further,  stated that,  when he reached the spot of  occurrence,

P.W.11 (Lalchand), did not confirm who the assailants were as

he himself was not aware about the same. Additionally, P.W.1

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(Kartar  Singh), stated  that  one day  prior to the incident, the

deceased had an altercation with her husband, who had

threatened to kill her.  

19. On perusal  of the statements,  we find that, there exists  major

contradictions in the statements of prosecution witnesses while

establishing the circumstances surrounding the murder of the

deceased­Santosh.  

20. Firstly, the case of the prosecution strongly  relied upon on the

testimony rendered by the two child­witnesses, P.W.4 (Kaptan)

and P.W.5 (Seema).  It is an established rule of practical wisdom,

that evidence rendered by the child­witness must be evaluated

carefully  and  it  must find adequate  corroboration before it is

relied on. (See  Panchhi v.  State of U.P.  (1998) 7 SCC 177).

Although, both P.W.4 (Kaptan) and P.W.5 (Seema) claimed to be

the eye witnesses to the entire incident, they have given different

versions as to the position of the victim, while P.W.4 (Kaptan)

clearly stated that accused gave blows to the deceased while she

was sitting, P.W.5 (Seema) on the contrary has stated that the

victim was standing and after receiving the blow she fell down.

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Moreover,  both the witnesses  have  failed  to  state the specific

timing at which the incident occurred.  

21. Additionally, owing to severe contradictions in the statements of

the prosecution witnesses, the prosecution has failed to prove

the fact as to who gave the information to P.W.10 (Smt. Devki

Devi). In our opinion, the High Court has correctly laid emphasis

on this aspect, as it leads to the inference about the presence of

P.W.4 and P.W.5 at the place of occurrence of the incident. In

light of the  above circumstances, the statements  of  both the

child­witnesses do not inspire confidence.

22. Secondly,  it  is also pertinent to observe here that,  although the

incident  happened around  2.00  A.M.,  but  none  of the family

members chose to inform the police about the said occurrence.

Rather the  wheel  of  process, in the  present  case  commenced

upon receiving an anonymous telephonic information by the

Police. P.W.5 (Seema) voluntarily stated in her statement that, a

neighbor might have informed the police about the same. It was

only after the reaching of the Police on the spot of occurrence,

that P.W.10 (Smt. Devki Devi) has stated about the incident and

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the guilt of the accused.  

23. Thirdly,  the  High  Court  on  perusal  of the statement  of  P.W.11

(Lalchand) has raised suspicion, as it is quite abnormal that, he

being the father of the deceased, did not  interfere  in the said

occurrence  although  he  was in the same  house.  Further,  he

admittedly did not go up to the terrace to see the deceased till

the police came after long 6­7 hours, till this time the deceased

was lying on the roof.  

24. Lastly,  the fact as to why he sent his minor daughter instead of

some responsible major to inform his wife P.W.10 (Smt. Devki

Devi), who was present in the field at a distance of 2­3 Kms, at

the early hours in the morning, raises doubt as to the credibility

of this witness. Our attention is also drawn to the fact that, the

statement of P.W.11 (Lalchand) does not speak anything about

the giving of information to independent witnesses D.W.1 (Kartar

Singh) and P.W.2 (Sohan Singh), whereas, both these witnesses

have clearly stated about their encounter with P.W.11 (Lalchand)

and P.W.10 (Deviki Devi), wherein they have expressed

unawareness about  the assailants.  These contradictions go to

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root  of  matter  raising questions about  the  credibility  of these

witnesses.

25. After having observed the evidence of the above crucial witnesses,

a reference may be made to observations of this court in

Krishnegowda and Ors. vs. State of Karnataka (2017)13 SCC

98, wherein it held that:

Although there is no absolute Rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eyewitnesses will not tilt the benefit of doubt in favor of the Accused but when the contradictions in the evidence of prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases Accused gets the benefit of doubt.  (emphasis supplied)

26. In the present case, the evidence relied by the prosecution is full of

contradictions. We cannot ignore the fact that although P.W.4

(Kaptan), clearly admitted that, their house is situated in a

populated neighborhood, it is  quite  surprising  that,  when the

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incident occurred on the terrace no one interfered or came to the

place of occurrence until morning.  The prosecution has failed to

provide any independent witness to bring home, the guilt of the

accused.  

27. Further, the High Court also raised doubt while placing reliance

upon the scientific evidence as there existed contradictions in

the seizure list of the clothes of deceased and the forensic

evidence on record,  which was  left  unexplained by  the Public

Prosecutor.   Additionally, the prosecution has pressed that

recovery was made subsequent to the confession of the accused.

In this context, it is pertinent to note that, the alleged recovery

was made in the presence of P.W.7 (Sukhbir Singh) who is the

paternal cousin of the deceased, who in his statement has stated

that the lathi recovered had blood stains in it. Surprisingly, this

fact of lathi marked in blood stains is not only absent  in the

recovery memo but also in the forensic report. These

shortcomings imply a sketchy investigation hence, bringing the

reliability of the above evidences into question considering the

facts and circumstances of the present matter.

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28. Moreover, the  High Court  has  correctly  observed  that, the trial

court totally  overlooked the  defense adduced by the  accused­

respondent, especially when he has denied the allegations

levelled  against  him, vitiating the fundamentals  of justice. In

light of the above observations, it is correctly concluded that,

there exists reasonable doubt for believing the case laid down by

the prosecution and the guilt of the accused has not been proved

beyond doubt.  

29. It is the duty of the court to separate the grains from the chaff and

to extract the truth from the mass of evidence. In our opinion,

the case of the prosecution is based on mere conjectures and

surmises. Moreover, the material contradictions inevitably raises

a doubt as to whether it was the accused­respondent, who had

caused the death of the deceased­Santosh. After examining the

rationale behind the conclusion of the High Court in acquitting

the accused­respondent, we do not find any compelling reasons

to deviate from the same.  

30. In our opinion, there exists no perversity in the judgment of the

High Court. Further, in the absence of compelling reasons, this

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court is not keen to entertain this appeal challenging the order

of acquittal.

31. The appeal is accordingly dismissed. Pending applications, if any,

shall also stand disposed of.  

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar)  

NEW DELHI,

OCTOBER 25, 2018

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