REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL    NO.56 OF 2018

SMT. SHAMIM ....APPELLANT(S)

VERSUS

STATE (GNCT OF DELHI) ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The  appellant  has  been  convicted  by the  High  Court

under Sections 302/307/34, I.P.C. and sentenced to life

imprisonment,  after reversing  her  acquittal  ordered by the

trial court.   The appellant has further been denied the

benefit of any remission in sentence, till she completes

twenty­five years of custody.   

2.  The Trial Court convicted four of the seven accused and

acquitted the appellant and two others. The High Court

dismissed the appeals against convictions, declined to

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interfere with the acquittals, with the exception of the

appellant.  

3. On 27.03.2006 at night, Pappu and Anisha (hereinafter

referred to as ‘the deceased’) were shot dead on the first floor

of their house.  PW­2, Heena suffered multiple injuries on her

neck with a razor. The deceased and PW­2 are the

brother/mother/sister respectively of PW­1, Ishrat Ali.  PW­4,

Shabnam is the daughter of the appellant, who married PW­

1, against the wishes of the appellant.   PW­3, Md. Imran is

the brother of PW­1.   The parties resided in houses across

each other with common topography, divided by a lane 5 to 6

feet wide.     PW­1 and PW­4 after their marriage had shifted

to a separate residence.  PW­3 upon returning home saw the

appellant standing outside his house, followed by the other

accused coming out of the house with blood stained clothes.

The witness entered the house to find the corpses and PW­2

in an injured condition unable to speak, and informed PW­1

and PW­4 who then came to the spot. Earlier, in the evening,

PW­2 had noticed the appellant standing on the verandah of

her  own house looking towards the  house  of the  witness.

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PW­4 stepped out on the verandah when the appellant told

her that the incident was the consequence of the witness not

listening to her, and that she had got the deceased killed and

her husband will meet the same fate.  

4.  The Trial  Court convicted  four accused under Sections

449/302/307/34 and awarded life imprisonment. The

appellant was acquitted on benefit  of  doubt with regard to

her  presence, failure to recover  her  blood stained  ‘chunni’

and lack of any evidence with regard to conspiracy.  

5.   The  High  Court in appeal against  her  acquittal, after

reappreciation of evidence ascribed motive to the appellant,

being perturbed and strongly opposed to the marriage

between PW­4 and PW­1.  The evidence of PW­2, the injured

witness was considered credible and reliable coupled with the

recovery the next day of blood­stained lock and key and the

appellant’s ‘chunni’ with blood stains on it pursuant to the

disclosure made by the appellant.   The appellant was thus

convicted in like manner under Sections 302/307/34, I.P.C.  

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6.  Learned counsel for the appellant referring to the evidence

of the prosecution witnesses contended that  none of them

has spoken having seen blood on the clothes of the appellant.

There was no material to conclude a common intention on

part of the appellant as it had not been conclusively

established that she was present during the assault.

Considering that the houses were located opposite each other

across the  lane, the presence of the appellant on her own

verandah before and after the occurrence was but natural

and cannot lead to  any inference of guilt.   The  appellant

could not have been simultaneously present at the place of

occurrence and her own house. Merely standing outside the

house of the deceased cannot be sufficient to infer common

intention.  PW­2 is unreliable as her statement was recorded

late and she has made many additions and alterations to her

original statement including contradictions. If on

appreciation of the same evidence the trial court had arrived

at a possible view to acquit the appellant, the High Court on

a reappreciation of the same evidence ought not to have

convicted the appellant.   Reliance was placed on

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Chandrappa & Ors. vs. State of Karnataka (2007) 4 SCC

415.   The test of rarest of rare cases should have been

applied and the appellant ought not to have been denied the

benefit of remission before twenty­five years.  

7. Learned senior counsel appearing for the State

submitted that the order of the High Court is well considered

and reasoned based on reappreciation of the evidence. PW­4,

the daughter of the appellant had deposed against her own

mother.  PW­2 was an injured witness whose credibility had

to be high.   The presence of the appellant has been

established by the evidence of PW­2 and PW­3.   The

disclosure made by the appellant has led to recovery of the

blood stained lock and key, as also her ‘chunni’ with blood

stains on it.  The conclusion of the trial court to the contrary

has been found to be perverse.  

8. We have considered the submissions on behalf  of the

parties and perused the materials and evidence on record.

The High Court has elaborately discussed the cautions and

limitations to be kept  in mind by an appellate court while

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interfering with an order of acquittal, inter alia with reference

to  Chandrappa (supra).  We therefore see no reason to

burden our order by repetition with the said discussion.  

9.   In a criminal trial,  normally the evidence of the wife,

husband, son  or  daughter  of the  deceased, is given  great

weightage on the principle that there is no reason for them

not to speak the truth and shield the real culprit.  We see no

reason why the same principle cannot be applied when such

a witness deposes against a closely related accused.

According to normal human behavior and conduct, a witness

would tend to shield and protect a closely related accused.  It

would require great courage of conviction and moral strength

for a daughter to depose against her own mother who is an

accused. There is no reason why the same reverse weightage

shall not be given to the credibility of such a witness.  PW­4

is the daughter of the appellant.   She has deposed that two

days prior to the occurrence the appellant had threatened the

witness to leave PW­1 else she would get his family members

killed.   Soon after the occurrence having reached the house

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of her in­laws she stepped out on the verandah.   The

appellant who was standing on her own verandah told the

witness that she  had got the  deceased  killed  because the

witness did not listen to her and that her husband would be

killed next.   In cross­ examination she reiterated the same.

The statement, in our opinion, can be considered as a

corroborative evidence being a voluntary extra judicial

confession, considering the  nature  of relationship  between

the witness and the appellant.  

10. PW­3 has deposed that while returning home at about

10.30 PM he had seen the appellant and the other accused

coming out of his house with blood stained clothes and they

proceeded towards the house of the appellant.   A little later

the other accused came out from the house of the appellant

and went away towards the lane.  The witness has reiterated

the same in his cross examination and has also specifically

denied the suggestion that the appellant was not seen coming

out from the house of the witness.  A blood stained lock and

key has also been recovered on confession of the appellant.    

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11.  PW­2 is an injured witness whose throat was slit in the

occurrence causing loss of voice requiring hospitalization for

two months.  The evidence of an injured witness carries great

weight as  it is  presumed that having been a victim of the

same occurrence  the  witness  was speaking  the truth.  She

has deposed that the appellant came upstairs after the

deceased persons had been shot dead by the other accused.

On the exhortation of the appellant accused Naushad,

brother of    PW­4, again assaulted the witness on her throat

with the razor. While the accused were leaving the appellant

tripped over the witness.   The blood stained ‘Chunni’ of the

appellant discovered the next day on her confession,

therefore stands explained.  

12.  While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read

as a  whole inspires confidence.  Once that impression is

formed, it is undoubtedly necessary for the court to

scrutinise the evidence more particularly keeping in view the

deficiencies, drawbacks and infirmities pointed out in the

evidence as a whole and evaluate them to find out whether it

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is against the general tenor of the evidence and whether the

earlier evaluation of the evidence is shaken as to render it

unworthy of belief.  Minor discrepancies on trivial matters not

touching the core of the case,  hypertechnical  approach by

taking sentences torn out of context here or there from the

evidence, attaching importance to some technical error

without going to the root of the matter would not ordinarily

permit rejection of the evidence as a whole. Minor omissions

in the police statements are never considered to be fatal.  The

statements given by the witnesses before the police are meant

to be brief statements and could not take place of evidence in

the court. Small/Trivial omissions would not justify a finding

by court that the witnesses concerned are liars.   The

prosecution  evidence  may  suffer from  inconsistencies  here

and discrepancies there, but that is a shortcoming from

which no criminal case is free.  The main thing to be seen is

whether those inconsistencies go to the root of the matter or

pertain to insignificant aspects thereof.   In the former case,

the defence may be justified in seeking advantage of

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incongruities obtaining in the evidence.   In the latter,

however, no such benefit may be available to it.

13. PW­2 was a minor student witness aged about thirteen

years.   She broke down during her evidence and cross

examination recalling the occurrence.  Her cross examination

had to be deferred on more than one date.  Notwithstanding

the grueling nature of her cross examination which runs into

approximately 14 pages she withstood the same tenaciously.

Her presence at the place of occurrence and injury caused

during the occurrence has stood unshaken.   The appellant

was the only woman present.   The question for confusion of

identity simply  does  not arise.   The  witness in  her cross

examination specifically denied having been tutored, and

from her evidence we find no reason to disbelieve her.  There

may be some inconsistencies in her evidence,  minor and

trivial in nature. But that cannot erase her credibility as a

reliable witness to the occurrence.  

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14.  In State of U.P. vs. Krishna Master & Ors., (2010) 12

SCC 324, disagreeing with the High Court which had

doubted the credibility of a child witness, it was observed:

“36. …… This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lal’s understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known  to this  Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of  his  family being ruthlessly killed by the respondents by firing gunshots. When a child of tender age witnesses gruesome murder of his father, mother, brothers, etc. he is not likely to  forget  the  incident  for  his whole  life and  would certainly recapitulate facts in  his memory  when asked  about the same at  any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.

37.  This  Court is  of the firm opinion  that it would be doing injustice to a child witness possessing  a  sharp memory to  say that it is inconceivable for  him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly  when asked about the

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same in future. Therefore, the specious ground on which the reliable testimony of PW 2 Madan Lal came to be disbelieved can hardly be affirmed by this Court.”

15. Each criminal trial is but a quest for search of the truth.

The  duty  of  a judge  presiding  over  a  criminal trial is  not

merely to see that no innocent person is punished, but also

to see that a guilty person does not escape.  One is as

important as the other.   Both are public duties which the

Judge has to perform. The trail court had erred and

misappreciated the evidence to arrive at an erroneous

conclusion.

16.   Sentencing has always been a vexed question as part of

the principle of proportionality.  The issue however need not

detain us further as once the appellant has been convicted

with the aid of Section 34 I.P.C. there appears no justification

to single her out for differential treatment for sentencing.  In

any event the High Court has not ascribed any special

reasons for the same.  We are therefore unable to sustain the

direction for denial of remission to the appellant for twenty­

five years and set aside the judgement to that extent only.   

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17.  Consequentially we find no merit in the appeal except to

the extent indicated.  

18. The appeal is allowed only to the extent indicated.   

…………...................J. [RANJAN GOGOI]

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

…………...................J. [K.M. JOSEPH]

NEW DELHI SEPTEMBER 19, 2018.

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