NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL   NOs.757-758 OF 2016  

SATISH AND ANOTHER ETC.      ....APPELLANT(S)  

VERSUS

STATE OF HARYANA   ...RESPONDENT(S)

J U D G M E N T

NAVIN SINHA, J.

The appellants stand convicted under Section 120-B, 302, 34 IPC

and sentenced to  life  imprisonment.   The appellant  Satish has been

further convicted under the Arms Act.

2. The deceased, husband of appellant Anita, was fatally assaulted

inside  his  house  at  about  1.30  a.m.  in  the  night  intervening

31.03.2007/01.04.2007.  PW-2 Sahil, the son of the deceased, went and

informed PW-1 Sunita who lived next door.  The police report was lodged

by PW-1 the next morning at about 9:00 a.m.  The postmortem of the

deceased was conducted on 01.04.2007 by PW-10 Dr. Suman Tanwar,

which revealed eight incised wounds and seventeen penetrating incised

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wounds.   

3. Ms. Prachi Bajpai, learned counsel for the appellants Satish and

Kishan, submits that there was an unexplained delay of eight hours in

lodgment  of  the  First  Information  Report  giving  sufficient  time  for

manipulation  and  false  implication.  PW-1  Sunita  deposed  in

cross-examination that about 15-20 villagers had come on hearing the

commotion,  but  none  of  them  has  been  examined.   PW-2,  a  child

witness aged about 12 years, admitted not knowing the appellants since

earlier.  He claims dock identification for the first time, more than six

months  later,  without  any  test  identification  parade  held  in  the

meantime.  It cannot be safely relied upon as the witness may have had

only a fleeting opportunity to see them during the alleged occurrence.

Any recovery from them is irrelevant in absence of a forensic report with

regard to the alleged weapons of assault.  The conviction is, therefore,

not sustainable and liable to be set aside.

4. Shri Mahabir Singh, learned senior counsel appearing on behalf of

the appellant Anita, submitted that the primary material against her is

an  extra  judicial  confession  stated  to  have  been  made  to  PW-4  on

08.04.2007, about a week after the occurrence.  The entire edifice of a

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conspiracy,  with  the  assistance  of  Ramesh,  to  engage  hired  killers,

collapses with his  acquittal  by the High Court.   If  the extra  judicial

confession was not acceptable in part, it had to be rejected completely. It

could be held to be discredited for some purpose, and yet accepted as

evidence for other purpose.  Reliance was placed on  Palvinder Kaur

versus State of Punjab, AIR 1952 SC 354.  The Trial Court and the

High  Court  have,  therefore,  materially  erred  in  basing  conviction  by

relying on the same as incriminating evidence.  There was no reason for

the appellant to make such disclosure nearly eight days later, when all

along she was living with the family.  PW-4 was a property dealer. The

extra judicial confession evidence was manipulated by him because if

the appellant was sent to jail, her children being minors, the witness

could grab her property after the demise of her husband. PW-20 Satpal

Singh, the Investigating Officer, has furnished no explanation why the

statement of the appellant was not recorded under Section 161 Cr.P.C.

when she was at home till 08.04.2007 and made an accused on that

date.   PW-4  stated  that  after  the  confession  he  accompanied  the

appellant to the police station at 5:00 p.m.  But PW-7 states that the

appellant was arrested from home on that date.  No question was put to

the appellant under Section 313 Cr.P.C. with regard to the extra judicial

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confession.   PW-16  Umesh  Singh,  the  photographer,  deposed  that

PW-18 Sombir, ASI informed him to come to the place of occurrence at

2.00 a.m. and he reached at 4.00 a.m.  But PW-18 is completely silent

on this aspect.  Naturally, there must have been a first version of the

occurrence  disclosed  to  the  police  before  lodging  of  FIR  the  next

morning, which has been concealed by the prosecution. No investigation

could have started before institution of a police report. PW-2 was a child

witness aged about 12 years.  It would be highly unsafe to rely on his

evidence alone to sustain conviction without corroboration, relying on

State of Delhi versus Vijaypal, (1980) 1 SCC 582.  The witness was

staying with PW-4 after the occurrence.  He had been tutored to depose

against his mother, and therefore, his evidence was unreliable in the

facts  of  the  case.   The  false  implication  of  the  appellant  is  further

evident from the statement of PW-7 that the appellant had killed the

husband of PW-1, when the latter deposed that he had died of a heart

attack.   Despite  finger  prints  having  been  taken  from  the  place  of

occurrence and sent for forensic examination, no report was submitted.

In  the  entirety  of  the  evidence,  false  implication  was  a  distinct

possibility. The benefit of doubt, therefore, must go to the appellant.  It

was a case of a blind murder.  The deceased had been killed elsewhere,

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and the body dumped at home for false implication.  The appellant is

therefore entitled to acquittal.

5. Learned counsel for the respondent submitted that it is only a rule

of prudence to seek corroboration in case of a child witness.  It was not

an invariable rule of criminal jurisprudence that without corroboration,

the evidence of a child witness could not be accepted.  The trail court

and  the  High  Court  have  accepted  PW-2  to  be  a  reliable  witness.

Conviction can be based on the solitary evidence of a child witness if it

is otherwise reliable and inspires confidence. PW-4 was well-known to

the appellant.  The extra judicial confession was, therefore, not made to

stranger.  Merely because Ramesh has been acquitted giving him the

benefit  of  doubt,  the  extra   judicial  confession does  stand wiped off

completely. The confession has been proved by PW-4.

6. We have considered the submissions. An extra judicial confession

is a weak piece of evidence.  Normally by itself it can be corroborative

only.  The confession in the present case was composite in nature, with

regard to a conspiracy hatched with the assistance of Ramesh, to do

away  with  the  deceased.     In  view  of  acquittal  of  the  latter,  the

observations in Palvinder Kaur (supra) in this regard assumes relevance

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and it will not be safe to take the same into consideration. We shall,

therefore,  proceed  to  examine  if  there  are  other  sufficient  materials

against the appellant or not.  

7. Considering that the occurrence took place in the dead of night,

and PW-1, being a lady deposed that she proceeded for the police station

early  in  the morning,  we find no infirmity  to  hold  that  the  FIR was

delayed, and therefore, may have been a result of prior deliberations.

8. PW-2 was the son of the appellant Anita.  He was a school going

child aged 12 years.  Both, the trial  Court and the High Court have

found him to be reliable and convincing.  We do not find anything from

his evidence to make it suspicious as the result of any tutoring by PW-4.

The witness has clearly mentioned that his mother was present in the

room when the assault was taking place and she asked them to leave

the room on the biding of one of the assailants.  We do find it a little

strange, according to normal human behavior, that at the dead of night,

the appellant after witnessing an assault on her own husband, did not

rush to the house of PW-1 for informing the same and sent her minor

son  for  the  purpose.   The  fact  that  she  created  no  commotion  by

shouting and seeking help reinforces the prosecution case because of

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her unnatural conduct.  We also cannot lose sight of the fact that the

child  witness  was not  deposing  against  another  family  member  or  a

stranger, but his own mother.  It would call for courage and conviction

to  name  his  own  mother,  as  the  child  was  grown  up  enough  to

understand the matter as a witness to a murder.  

9. The witness has clearly identified the other two appellants also in

the  dock,  having  seen  them  during  the  occurrence.  The  number  of

injuries on the deceased is itself indicative that the assault lasted for

some  time  enabling  identification  and  did  not  end  in  a  flash.   We,

therefore, find no reason to interfere with the conviction.

10. No defence was taken by the appellant Anita under Section 313 as

to  how her  husband had died except  for  stating that  it  was a blind

murder  and that  she  wanted  to  lead  evidence  but  did  not  do  so.  A

speculative submission that he had been killed elsewhere and the body

dumped  at  home  to  falsely  implicate  her  is  too  far-fetched  for

consideration. We find no reason to interfere.

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11. The appeals are dismissed.

…………...................J. [L. NAGESWARA RAO]

…………...................J. [NAVIN SINHA]

NEW DELHI;  MAY 26, 2017.

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ITEM NO. 1 COURT NO. 5 SECTION IIB (For Judgment)

S U P R E M E  C O U R T  O F  I N D I A RECORD OF PROCEEDINGS

Criminal Appeal Nos. 757-758 of 2016 Satish and Another etc. …...Appellant(s)

VERSUS State of Haryana …...Respondent(s) Date : 26/05/2017 This matters was called on for pronouncement of  

judgment today. For Appellant(s) Mr. Rameshwar Prasad Goyal, AOR

Ms. Prachi Bajpai, AOR For Respondent(s) Mr. Vishwa Pal Singh, AOR

Hon'ble Mr. Justice Navin Sinha pronounced the judgment of the Bench comprising of Hon'ble Mr. Justice L. Nageswara Rao and His Lordship.

The  appeals  are  dismissed  in  terms  of  the  non-reportable judgment.

(DEEPAK MANSUKHANI) (INDU POKHRIYAL)  AR-cum-PS Court Master

(Signed non-reportable judgment is placed on the file)

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