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Judgment
Surendra Vikram Singh Rathore, J.—1. Ms. Nandita Bharti, learned counsel for the appellants and Sri Sharad Dixit, learned Additional Government Advocate were heard.
Under challenge in the instant criminal appeal is the judgment and order dated 30.03.2007 passed by learned Additional Sessions Judge, Court No. 6, Hardoi, in Sessions Trial No. 24 of 2006, arising out of Case Crime No. 421 of 2005, Police Station Mallawan, District Hardoi, whereby both the appellants were convicted and sentenced as under:--
"(i) Section 302/34 IPC- Imprisonment for life alongwith fine of Rs. 5,000/- each with default stipulation of six months additional simple imprisonment.
(ii) Section 307/34 IPC- Seven years'' rigorous imprisonment alongwith fine of Rs. 2000/- each with default stipulation of three months additional simple imprisonment."
In the instant case, there was one more accused namely Pankaj Kumar Verma. Since he was juvenile, therefore, his case was separated and was sent for trial to the concerned Juvenile Justice Board.
In the instant case Dr. Sudhir Verma and his wife Smt. Sarojini Verma are alleged to have been murdered and their only daughter Km. Varuni has sustained grievous injuries. Appellant Ram Swaroop Verma happens to be the husband of the real sister of the deceased D r. Sudhir Verma and the other appellant Pankaj Kumar and Pawan Kumar are sons of Late Prakash Chandra who happens to be the real brother of Dr. Sudhir Verma. Complainant Km. Sangam Verma is also daughter of Prakash Chandra.
The FIR of this case was lodged by Km. Sangam Verma who happens to be real sister of appellant Pankaj Kumar Verma and the accused Pawan Kumar (juvenile).
In brief, the case of the prosecution as disclosed in the FIR which was scribed by one Kuldeep Katiyar, was that it was case of dacoity with murder committed by unknown dacoits. This FIR was registered under Section 396 IPC at Police Station Mallawan, District Hardoi on 27.09.2005 at 6.20 a.m. against unknown persons. It was alleged in the FIR that in the house adjacent to the house of the complainant her uncle D r. Sudhir Verma resides. In the last night while the complainant Km. Sangam Verma was sleeping in her house then at about 3.30 a.m. six dacoits knocked the door of her house, at that time she was awake, she flashed torch and saw that all the dacoits were of young age and were putting on pant, bush shirt and were bare footed. After seeing the miscreants she tried to awake her mother. In the meantime, all the miscreants reached near the house of Shakeel and Shakeel raised alarm then all the dacoits ran away from there. Thereafter, the complainant came to her house and went to her bed. In the morning at about 5.30 a.m. she alongwith her mother and her sister Km. Sangam Verma went to the house of her uncle Dr. Sudhir Verma where they found that gate of the house was open and Sudhir Verma and his wife Smt. Sarojini Verma were lying dead on their bed and her cousin Km. Varuni (daughter of Sudhir Verma and Sarojini Verma) was also lying on the bed by the side of her mother in seriously injured condition. There were grievous injuries on the body of Sudhir Verma and Sarojini Verma. The complainant went to the roof of the house where she found that on the southern wall of the house a ladder was kept and she suspected that in the night the miscreants went inside the house through this ladder and have committed this offence. The dacoits, while running away from there, also caused injuries to one Sher Singh at Atta chakki of one Lalta resident of Tendua. She has also furnished the list of the looted property.
On the basis of this information case under Section 396 IPC was registered. During investigation Km. Varuni was taken to Primary Health Center (PHC), Mallawan, District Hardoi but keeping in view her serious condition she was referred to Hallet hospital, Kanpur where she was treated. The Investigating Officer prepared site plan of the place of occurrence and took blood stained and plain pieces of the floor from the place of occurrence. Ladder was also taken into custody. One shirt and one lower which had fallen on Mallawan Sandila road near the Shiv Temple while miscreants were making good their escape were also taken into custody and 11 slippers which were tied with a rope were also taken into custody. Blood stained kathri and piece of bed sheets, blood stained part of the weaving material of the cot of the deceased Dr. Sudhir Verma and the lantern were taken into custody. Separate recovery memos were prepared of these recoveries.
Inquest proceedings were conducted on the body of the deceased persons and after completing the necessary formalities the dead bodies were sent for postmortem.
Postmortem on the body of the deceased Smt. Sarojini Verma was conducted on 27.09.2005 at 8.35 p.m. The duration of death was 3/4 days and following ante-mortem injuries were reported by the doctor in the postmortem report:--
"(i) Contusion on left side of face 8 cm x 7 cm underneath left frontal and temporal bones fractured."
In the opinion of the doctor, the cause of death was coma as a result of ante-mortem injuries.
Likewise the postmortem was conducted on the body of the deceased Dr. Sudhir Verma on 27.09.2005 at 8.00 p.m. and following ante-mortem injuries were reported by the doctor in the postmortem report:--
"(i) Contusion 15 cm x 8 cm on upper part of the chest underneath sternum, second to fourth ribs on right side and second to fifth ribs on left side were found fractured.
(ii) Lacerated wound on chin 5 cm x 1 cm subcutaneous deep."
In the opinion of the doctor, the duration of death was 3/4 days and cause of death was ante-mortem injury No. 1.
The doctor who has examined Km. Varuni has prepared a detailed referral note and the said note has been proved as Exhibit-5 which shows that the condition of injured Km. Varuni was serious. There were very little chances of her survival. It was a case of suspected head injury and her injuries could not be noted because movement of the body could have proved fatal to her. Km. Varuni was treated in Kanpur. She was the only surviving person present inside the house at the time of incident. When her statement was recorded on 10.10.2005 then she has disclosed as to how this incident was committed by the appellants and her parents were murdered and she sustained injuries. By that time, the police had converted the case under Section 460 IPC but after her evidence the case was converted under Section 302 IPC. Thereafter her statement under Section 164 Cr.P.C. was also recorded on 07.11.2005 wherein she has supported her version recorded under Section 161 Cr.P.C.
After completing the investigation charge-sheet was filed against all the three accused persons.
As stated earlier, accused Pawan Kumar Verma was declared juvenile and his case was separated.
The defence of the accused Pankaj Kumar Verma was that false case has been lodged against him because the complainant side were annoyed with him. However, the appellant Ram Swaroop Verma has taken a defence that at the time of the alleged incident he was present at the residence of Hon''ble Chief Minister on security duty. On 27.09.2005 he got the information of this incident on telephone then he, after getting permission from his Officer and after making an entry of his movement in the concerned diary, came back to his house and from there he came with the dead body for postmortem. He has also stated that he has moved an application to the District Magistrate and on his application the postmortem was conducted in the night. He has also stated that on the next day he jammed the Hardoi-Kanpur road for the arrest of the accused persons. Police feeling aggrieved by this act of the appellant has falsely implicated him in this case.
In order to prove its case the prosecution has examined PW-1 Km. Sangam Verma, the complainant of this case, PW-2 Km. Varuni the injured and the sole eye witness of this incident, PW-3 Chhatrapal who is the father of the deceased Smt. Sarojini Verma, his evidence is mainly on the point of motive, PW-4 Head Constable, Anil Kumar who has proved the chik report and G.D. of this case, PW-5 Dr. Rajiv Kumar Saxena, who first attended Km. Varuni in injured condition and thereafter referred her for further treatment to Hallet Hospital, Kanpur, PW-6 Constable Kishan Lal, who has stated that the notice of Dr. A.K. Nathani who has performed postmortem on the body of the two deceased persons, could not be served as he has gone abroad. PW-7 Kamta Prasad Chaurasia, the Pharmacist who has proved the postmortem reports prepared by Dr. A.K. Nathani as secondary evidence. This witness has also stated that Dr. A.K. Nathani has gone to Australia after resigning from service, PW-8 S.I. Sarnath Singh, the Investigating Officer of this case.
No evidence in defence was adduced on behalf of the appellants.
After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant appeal.
Submission of the learned counsel for the appellants was that in the instant case FIR was anti-timed and learned trial court has committed error of law and fact in holding that the evidence of PW-2 Km. Varuni was wholly reliable while the prosecution had failed to prove her medical examination report. It has also been argued that apart from the evidence of PW-2 Km. Varuni there was no other evidence to connect the appellants with the instant offence. It has also been argued that the statement of PW-2 Km. Varuni under Section 161 Cr.P.C. was recorded after a considerable delay on 10.10.2005 which gives rise to the inference that she was a planted witness. Admittedly, she has lived after incident with her maternal grand father PW-3 Chhatrapal and possibility of tutoring this witness cannot be ruled out. But the learned trial court has not considered all these aspect in correct perspective which has rendered its judgment unsustainable under law.
Learned counsel for the appellants has placed reliance on the pronouncement of Hon''ble Apex Court in the case of Arbind Singh V. State of Bihar reported in , 1995 Supp (4) SCC 416 on the point of evidentiary value of a child witness.
Learned Additional Government Advocate has submitted that there is ample evidence on record that PW-2 Km. Varuni has sustained injury in this incident. Even PW-1 Km. Sangam Verma, who happens to be the real sister of appellant Pankaj Kumar Verma, has stated that she had seen Km. Varuni in seriously injured condition lying on the cot alongwith her dead mother. Apart from it, the doctor of PHC who had taken the injured Km. Varuni for treatment has also given detailed description of her condition which establishes that she had sustained serious injuries. It has also been argued that in the facts of this case mere delay in recording the statement of Km. Varuni under Section 161 Cr.P.C. would not adversely affect the case of the prosecution because Km. Varuni was serious and she was under treatment. Apart from it, there were absolutely no occasion for her to falsely implicate her own family members in this offence. It has also been argued that the daughter would never spare the real assailants of her parents and falsely implicate the other persons that too her own close relatives. It has also been argued that there is absolutely no suggestion that PW-3 Chhatrapal was nursing grudge against the appellants.
In view of the rival submissions the evidence has to be considered. Before proceedings further, we would like to give a brief narration of the evidence of the witnesses.
PW-1 Km. Sangam Verma is the complainant of this case and she is the real sister of appellant Pankaj Verma and also of accused Pawan Kumar Verma and also closely related to appellant Ram Swaroop Verma. She has admitted that the appellant Ram Swaroop Verma is the husband of her father''s sister. This witness has proved the FIR and she has stated that she had gone with her mother in the morning to the house of her uncle and found Dr. Sudhir Verma and his wife Sarojini Verma lying dead and Km. Varuni in an injured condition. She has also mentioned in the FIR that the accused persons were of young age and were not putting on slippers. She has also mentioned miscreants also inflicted injuries to Sher Singh. It was also mentioned by this witness in the FIR that she went on the roof and found ladder on the southern wall of the house. Admittedly, the mother of this witness was present with her and as mentioned in the FIR her sister Km. Sangam Verma was also accompanying her. This witness has been declared hostile and a suggestion has been given by the prosecution that under the pressure of appellant Ram Swaroop Verma he has lodged a false report.
PW-2 Km. Varuni is the sole eye witness of this incident and she has fully supported the case of the prosecution and has stated that the appellants were the persons who have caused the death of her parents and have also caused injuries to her. Km. Varuni in her statement before the Court has stated that in the fateful night she was sleeping with her mother. She knows and recognizes the appellant Ram Swaroop Verma as he is her real (Fufa) and Pankaj Verma is her cousin. Brother of Pankaj Verma namely Pawan Kumar Verma was also present and there was light of lantern which used to remain lit daily. She got up when her mother cried and she saw that appellant Ram Swaroop Verma was holding the neck of her mother and he exhorted to kill her and thereafter Ram Sawroop Verma gave a blow of rod on her mother. When she saw her father then he was not moving. She was given a blow of knife by Pankaj, and Pawan had pressed her neck. Blow of knife was given on her neck. After sustaining the knife injury she became unconscious. It was mentioned in the statements that while deposing this witness was weeping. She has stated that she regained her senses in Kanpur. She has also stated that her statement was recorded by the Darogaji and was also recorded by the Magistrate in Hardoi. She has also stated that appellant Ram Swaroop Verma, Pankaj and Kiran Bua want some money from her father and because of that her parents have been murdered. She sustained one knife blow due to which she became unconscious. She was taken by her maternal grand uncle to her house. No dacoity was committed in her house and all the belongings of the house remained intact.
PW-3 Chhatrapal is the father of the deceased Sarojini Verma who has stated that Kamini was the real sister of her son-in-law Dr. Sudhir Verma (deceased). She was married to appellant Ram Swaroop Verma. When Dr. Sudhir Verma sold his land then Ram Swaroop Verma, Pankaj Verma and Pawan Kumar Verma had taken a loan from him and his other sister Kiran had also taken a loan from him. He has also stated that the deceased had declined the request for further loan by saying that they have not returned the earlier loan amount. He has stated that Dr. Sudhir Verma was running a medical shop and few days prior to this incident the appellant and Kiran had come to his house to demand money on the pretext that Kiran is intending to contest the election of Sabhasad in Nagar Nigam, Lucknow. So the evidence of this witness is only regarding the motive of this offence. No enmity of the appellants with this witness has been suggested.
PW-4 Head Constable Anil Kumar is a formal witness.
PW-5 Rajiv Kumar Saxena is the doctor of PHC, Mallawan, who has prepared the detailed referral letter for PW-2 Km. Varuni and has stated that when she was brought to him, there were very bleak chances of her survival. He could not conduct her medical examination because there were symptoms of head injuries and movements of the body could have proved fatal.
The evidence of PW-6 was absolutely formal in nature. PW-7 Kamta Prasad Kanaujia has proved the postmortem of the two deceased persons by secondary evidence and PW-8 Sarnath Singh is the Investigating Officer of this case. So the only evidence to connect the appellants with the instant offence is the evidence of PW-2 Km. Varuni.
Submission of the learned counsel for the appellants was that initially in this case the FIR of dacoity was lodged by the Km. Sangam Verma and subsequently the police has converted the offence under Section 302 IPC.
First we will consider the narration of the FIR to find out whether it was correct version of Km. Sangam Verma or it was a fabricated FIR to mislead the police as alleged by the prosecution. PW-1 Km. Sangam Verma has mentioned in the FIR that at about 3.30 a.m. she was awake and door of her house was knocked, she flashed the torch and saw that six miscreants who were of young age were present there and they were not putting on slippers. It was also mentioned in the FIR that six miscreants went towards the house of Shakeel and Shakeel raised alarm and because of the alarm raised by the villagers the miscreants ran away. Thereafter this witness came to her house and went to her bed. In the morning at about 5.30 a.m. she alongwith her sister and mother went to the house of her uncle. She has also stated that the accused persons have also caused injuries to Sher Singh while making good their escape. How all these facts came to the notice of this witness who was aged only about 16 years at the time of incident. Generally there is a tendency in the village people that they avoid to make the ladies or the young girls a witness simply to avoid piercing cross examination with them. But in the instant case, the mother of PW-1 who was present with her was not made complainant of this case nor any other male member of her family came-forward as a complainant of this offence. Apart from it, the story as narrated by this witness was highly improbable. According to the version as mentioned by her the presence of miscreants in the village was noticed by the villagers at 3.30 a.m. It is unbelievable that after that every villager went to his bed without caring for as to what happened as to how Sher Singh received injuries and whether anyone recognized them. She herself went on the roof of the house made preliminary investigation and not only this she has also mentioned the details of looted property from the house of the deceased persons. Admittedly, she was living in a different house and in the house of the deceased persons only two deceased persons alongwith their minor daughter Km. Varuni were living. How this witness can say as to what was the property which was looted by the accused persons. She has gone to the extent of saying that the accused persons have also taken Rs. 20,000/- cash from the house. We do not find any plausible reason for it, inspite of our best efforts to visualize as to how the person who was not the member of the same family can say as to how much money was kept in the house. So all these circumstances taken cumulatively gives rise to the only inference that she was planted as a complainant to show that this incident as an incident of dacoity by unknown persons. Such an effort was only to save known persons. Appellant Ram Swaroop Verma is a police personnel and specific suggestion has been given by the prosecution that she has lodged this FIR under pressure of Ram Swaroop Verma. Admittedly, by that time Km. Varuni was unconscious she was not in a position to disclose about the incident so the FIR was registered under Section 396 IPC. Km. Sangam Verma, a girl of 16 years only, has also mentioned in the FIR that miscreants were of young age and were not putting on slippers. Such type of narration was not expected from a girl of such age and these facts can be mentioned only on the dictation of some other person who is well acquainted with legal requirements. So our conclusion on the point of FIR shows that this FIR was prepared under pressure of the appellant themselves to mislead the investigation agency to save themselves. So the arguments raised on behalf of the appellants that initially the case was registered under Section 396 IPC has no force and does not adversely affect the case of the prosecution. Apart from it the appellants could not produce any person of the village in their defence to testify that it was a case of dacoity. Shakeel whose house is alleged to have been raided by the unknown miscreants nor Sher Singh who is alleged to have been injured by such unknown miscreants could be examined by the appellants in their defence.
Now we will come to the evidence of PW-2 Km. Varuni. Her evidence has been criticized mainly on two grounds; 1) her statement under Section 161 Cr.P.C. was recorded with a considerable delay on 10.10.2005 i.e. after about 13 days of the incident and 2) her medical examination has not been proved so she cannot be treated to be an injured witness.
The delay in recording the statement under Section 161 Cr.P.C. cannot be taken as a ritual formula to discard the evidence of the witness on this score alone. The effect of delay in recording the statement under Section 161 Cr.P.C. has to be considered keeping in view the facts and circumstances of each case. In the facts of the instant case Km. Varuni had sustained grievous injuries she was found unconscious in the morning. She was taken to PHC, Mallawan where her condition was found to be very serious and she was referred to Hallet Hospital, Kanpur. Before proceedings further we would like to quote the referral note of the doctor who has attended her first which reads as under:--
"To,
The Chief Medical Superintendent, Hellet Hospital, Kanpur
Sir,
Patient Varuni Devi, aged around 7 year/10 years as per her cousin was admitted in this hospital on 27.09.2005 at 6.00 a.m.
She was pulse less unconscious with difficulty in breathing, Pupil was dilated and was sluggishly reacting to light. The right eye was swallow with blood pouring out from it. A cut was present on the nose & eyebrow which was also bleeding.
She was given
� Oxygen inhalation
� iv Haemaccoel
� Inj. Deriphyline/Decadron
� Inj. Mannitol
� Inj. Amican
� Inj. Dextrose 5% l5 maintain lifeline
� Inj. Voveran
� Inj. Ciprofloxacin/Inj. Metrogyl 12 hrly.
� Inj. Ramitidine
He remained consciousness around 12 noon & could recognize relative and had a desire to pass urine.
Then onwards she is complaining of pain in right eye and has waxing and waiving in conscious level. She was given around 10 spoonful of liquid juice which was not vommitted out.
At the time of admission, she was vommitting dark coloured brown fluid, which was probably blood, which she ingested from the bleeding mouth.
Ryle''s tube was not passed, because of likelihood of fracture/damage in nasal septum.
As the patient was regaining conscious for a brief period and was irritable coupled with advised limited movement, Medico-legal examination was not done. Kindly get the patient examined & injuries recorded after satisfying yourself that movement will not cause any damage.
Patient Varuni was seriously injured and her condition, explained earlier. She had lost both her parents and had been admitted here in police custody.
She is being referred to you in police custody in Ambulance No. UP 78-1934 with one Constable 777-Chail Behari, Police Station Mallawan, District Hardoi.
She is referred to your hospital for detailed investigation/CAT Scanning, expert opinion & Treatment."
Medical Officer 28.09.2008"
It is true that the prosecution has not proved the papers of her Medical treatment which was given to this witness in Hallet Hospital, Kanpur, or in any other hospital where she was treated. But this fact is of no consequence in the facts of this case. Admittedly she was treated in Kanpur and her condition was precarious. So simply because the Investigating Officer has recorded her statement after few days it cannot be a ground to discard her evidence on this score alone. Learned counsel for the appellants has also argued that in the referral letter doctor has mentioned her age to be 7 years while during trial she has stated her age to be 10 years and deliberately her age is being stated as 10 years to show that she had attained sufficient understanding to observe the things and to give evidence. Perusal of the referral letter shows that her age has been recorded as 7/10 years as stated by her cousin. So even at that time her age was stated to be 10 years by her cousin who must also be a close relative of the appellant.
At this stage, we would like to discuss the law regarding delay in recording the statement under Section 161 Cr.P.C. In this regard, reference may be made to the pronouncement of Hon''ble Apex Court in the case of Prithvi V. Mamraj and Others reported in , (2004) 13 SCC 279 and the Apex Court has observed as under:--
"Unexplained delay in recording the statement may render it suspect, but the High Court cannot make a fetish out of a rule of prudence. In Mohd. Khalid V. State of West Bengal reported in , (2002) 7 SCC 334 and has observed: "Mere delay in examination of the witnesses for a few days cannot in all cases be termed to be fatal so far as the prosecution is concerned. There may be several reasons. When the delay is explained, whatever be the length of the delay, the court can act on the testimony of the witness if it is found to be cogent and credible.
22) unexplained delay in recording the statement gives rise to a doubt that the prosecution might have engineered it to rope the accused into the case. Delay in recording the statement of the witness can occur due to various reasons and can have several explanations. It is for the court to assess the explanation and if satisfied, accept the statement of the witness "
Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Vijay Kumar Arora V. State (Government of NCT of Delhi) reported in , (2010) 2 SCC 353 and the Apex Court has observed in para 55 as under:--
"Unless the investigating officer is asked questions about delay in recording statements and an explanation is sought from the witnesses as to why their statements were recorded late, the statements by themselves did not become suspicious or concocted."
In the facts of the instant case, the Investigating Officer PW-8 Sarnath Singh has stated in his cross examination that he got the information on 28.09.2005 that Km. Varuni is under treatment at PHC, Mallawan, but he could not reach PHC because Ram Swaroop Verma (appellant) had created jam on the road from 6.00 a.m. and subsequently the complicity of the same appellant Ram Swaroop Verma came into light as accused of this offence. He has stated that on 28.09.2005 he had no talks with Nana-Nani and other relatives of Varuni. He reached PHC in the evening where he had no talk with any doctor. He made an arrangement for sending her to Kanpur under security. He has also stated that Nana-Nani and Mausa-Mausi of Varuni were not relying on Ram Swaroop Verma and this fact has been mentioned by him in case diary because they were apprehending that Ram Swaroop Verma may also get Varuni murdered. So virtually no question was put to this witness as to why the delay was caused in recording the statement of Km. Varuni. The reason of this delay is apparent in the facts of this case. As per the evidence on record her condition was critical, she was under treatment at Kanpur. Referral letter shows that she had cut injuries on her nose and face, she was given treatment. In the afternoon she regained sense for a while and she was sent to Kanpur in ambulance in security. Even the number of ambulance and the name of constable has also been mentioned. So in the peculiar facts of this case mere delay in recording the statement of Km. Varuni cannot be a ground to discard her testimony because the delay stands well explained.
So far as the ground that her medical examination was not proved has also no legs to stand. The purpose of proving the medical examination report is only to satisfy the court that a person has sustained injuries. It is not a formality to be observed necessarily. If the fact that a person has sustained injuries stand proved by other evidence then simply because the formal medical examination report would not have any adverse effect on the case of prosecution. If the appellants were of the view that the same was helpful for them then they had all the right and opportunity to summon the same in their defence. There is volumes of evidence on record to show that Km. Varuni had sustained injuries in this incident and she is an injured witness of this incident. In the peculiar facts of this case complainant Km. Sangam Verma (PW-1) has herself stated that when she entered into the house she found Km. Varuni in seriously injured condition lying by the side of her dead mother. She has mentioned this fact in her FIR also. Dr. Rajiv Kumar Saxena (PW-5) has stated in his cross examination that she had cut injuries on her eye brow and nose. He referred the patient when she became a bit stable. Thus the referral letter itself shows that Km. Varuni was seriously injured. Apart from it, the complainant herself has stated that Km. Varuni was injured. This fact was mentioned by her in her FIR. So by no stretch of imagination it can be presumed that Km. Varuni had not sustained injuries of serious nature in this incident. Therefore, in the peculiar facts of this case when this fact stands established then the non-production of formal injury report loses its adverse effect on the case of the prosecution.
The next attack on the testimony of Km. Varuni was regarding her age and in this regard it was argued that her age was mentioned 7 years in the referral letter but before the court she has stated her age to be 10 years. As stated earlier, that in the referral letter itself the age of Km. Varuni was also mentioned to be 10 years as stated by her cousin. So the cousin of Km. Varuni was also a close relative of the present appellants. Thus this fact also establishes that from the very beginning the age of Km. Varuni was stated to be 10 years. It was only the assessment of the doctor that he mentioned her age as 7 years. So this argument has no force that only in order to show that she has attained sufficient understanding she has told her age to be 10 years during trial.
Learned counsel for the appellants has placed reliance on the pronouncement of Hon''ble Apex Court in the case of State of Rajasthan V. Chandgi Ram and Others reported in , (2014) 14 SCC 596. Our attention has been drawn towards para 14 which reads as under:--
"In view of the above, the law on the issue can be summarised 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." (Emphasis added) To the same effect is the decision reported in Shivasharanappa and Others V. State of Karnataka , (2013) 5 SCC 705. Paragraph 17 can be referred to as under:
"17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say, the corroboration is not a must to record a conviction, but as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable."
Reliance has also been placed on the pronouncement of Hon''ble Apex Court in the case of Nirmal Kumar V. State of U.P. reported in , 1993 Supp (1) SCC 510 wherein Hon''ble Apex Court has not believed the evidence of a child witness.
Reliance has also been placed on the pronouncement of Hon''ble Apex Court in the case of K. Venkateshwarlu V. State of Andhra Pradesh reported in , (2012) 8 SCC 73 wherein Hon''ble Apex Court has observed in para 9 as under:--
"Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it."
Reference has also been made to the pronouncement of Hon''ble Apex Court in the case of Radhey Shyam V. State of Rajasthan reported in , (2014) 5 SCC 389 and has observed in para 12 as under:--
"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 an oath."
Thus law is settled on the point that the evidence of a child witness if found wholly reliable and find corroboration then the same can be relied upon and can be made sole basis of conviction. In the facts of the instant case, when we consider the evidence of PW-2 Km. Varuni on the touch stone of strict scrutiny then we come to the only conclusion that her testimony was wholly reliable. She was an injured witness who has sustained serious injuries. She was the most natural witness of this incident as at the time of the incident she was lying with her mother on her bed. Her parents have been murdered in this case. She says that she got up when her mother was attacked and she saw as to how her mother was attacked and by whom. She has made absolutely no effort to say as to who and in what manner caused the death of her father. After the incident because of her grievous injury she became unconscious. The appellants are her close relatives. It appears to be absolutely unnatural that a girl of 10 years who has seen the brutal murder of her parents would spare the real assailants of her parents and would falsely implicate her own family members. Her evidence shows that she has given replies to all the questions in a very natural manner and her evidence does not reflect that she was a tutored witness. Virtually she has stated, what she has seen. Had she been tutored then she would have also tutored about the murder of her father. But no such effort has been made by this witness. Her evidence stands corroborated not only by the postmortem report of her parents but also by her own serious physical condition. What transpires from her condition that she was left by the appellants considering her to be dead. But it was only by the grace of God that she survived and the names of the culprits came into light. So we are of the considered view that the evidence of PW-2 Km. Varuni was wholly reliable and stands corroborated by the other circumstances and it also gets strength by a false FIR showing it to be a case of dacoity by Km. Sangam Verma which as we have already concluded, was prepared under influence of some other person and prosecution has suggested that it was under the influence of Ram Swaroop Verma who was a member of police force. Appellant Ram Swaroop Verma has pleaded his alibi but has failed to produce any evidence in support thereof. The plea of alibi is a general exception and burden to prove the same always lies on the person who takes such plea. The appellant has failed to prove his presence in Lucknow. When a plea of alibi is taken and the person taking such a plea fails to prove the same then it is logical conclusion that he was present at the place where the prosecution claims his presence.
No other ground was pressed into service.
We appreciate the manner in which Ms. Nandita Bharti has argued a weak case very effectively.
We are of the considered view that learned trial court has not committed any error of fact or law in convicting the appellants.
In view of the above, the appeal sans merits deserves to be dismissed and is hereby dismissed. The appellants are in custody. They shall serve out their sentence as inflicted by learned trial court.
Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.