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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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