Criminal Justice System

Appraisal of Testimony of Child Witness

Comment : 
Allahabad High Court
Panchhi And Ors. vs State Of U.P. on 17 February, 1998
Equivalent citations: 1998 CriLJ 3305
Author: K Shahi
Bench: G Mathur, K Shahi

JUDGMENT

K.D. Shahi, J.

1. Appellants Panchhi, Manmohan and Smt. Ram Shree have preferred this appeal against their conviction under Section 302 read with Section 34 IPC and death punishment awarded by the Additional Sessions Judge, Mahoba in S.T. No. 47 of 1991 vide judgment and order dated 3-3-1997 for having murdered Bankey Lai, his mother Smt. Halki and wife and daughter Smt. Pan Kunwar and Km. Sonu on 26-10-1989 at 11.00 A.M. in village Tingara Police Station Mahoba district Hamirpur.

2. The brief facts of the case which emerge out from the F.I.R. Police papers and other evidence on the record are that the accused persons were the next door neighbour of the deceased persons. Accused Panchhi is the father of Manmohan and Smt. Ram Shree. There was yet another accused Smt. Kalia wife of Panchhi. She died during the trial. Before 12 or 13 days of the occurrence, wife of deceased Bankey Lal was beaten by the wife and daughter of Panchhi. After this, deceased Bankey Lal and his wife had beaten Smt. Ram Shree. Due to this enmity, accused Panchhi, his wife Smt. Pan Kuriwar, his mother Kalia and his son Manmohan attacked the house of the deceased persons on 26-10-1989 at 11.00 a.m. Smt. Kalia alias Ram Kali was armed with Hansiya while the other accused persons were armed with Kulahri. They entered the house of the deceased persons and started assaulting Bankey Lal. Bankey Lal cried whereupon his mother Smt. Halki rushed to save him. The accused persons started assaulting her also with their respective weapons. The wife of Bankey Lal went outside the house and raised hue and cry for help. After having assaulted Bankey Lal and his mother inside the house, the accused persons came out of the house and started assaulting Smt. Pan Kunwar at the Chabutra. Km. Sonu the daughter of Bankey Lal started weeping bitterly and she was also killed by the accused persons. Having heard the alarm, the village people rushed to the spot to save them but the assailants told them that if they interfered, they would meet the same fate. Ram Khelawan son of Banky Lal some how escaped and ran towards the village and the village people saved him. The victims were being killed but no body dared to save them.

3. Ghanshyam Chaukidar (P.W. 2) was informed about the occurrence by the villagers. He went to the Police Station and lodged the F.I.R. on 26-10-1989 while the police station was at a distance of 7 miles from the place of occurrence. Looking to the fact that there was murder of four persons and Ghanshyam Chaukidar was an outsider, the F.I.R. lodged by him cannot be said to be delayed. It may be taken to be prompt one. The original F.I.R. is Ext. Ka-1, which he had verbally dictated at the police station.

4. S.I. Vijai Singh took the investigation in his hand and reached village Tingara. He recorded the statement of the Chdukidar. As it had become dark, the Investigating Officer could not inspect the spot. The next morning at the pointing of the informant, he inspected the place of occurrence and prepared the site plan. He found two dead bodies at the Chabutra and two dead bodies in the house of the deceased. He took blood stained and simple earth. He recorded the statement of Shambhu Dayal (P.W. 5), an eye witness. He prepared the inquest report, challan lassh, photo lassh, and letter to the C.M.O. in respect of all the four dead bodies and sent them for postmortem examination. He arrested Smt. Ram Shree and Kalia alias Ram Kali on 27-10-1989 at 4.15 P.M. and on their pointing, the Investigating Officer recovered Hansiya and Kulahri used by them. He also took the clothes of the accused persons in his possession, which were blood stained. He inspected the spot from where the recovery was made and prepared the site plan Ext. Ka-33. Accused Panchhi and Manmohan surrendered in the court. The Investigating Officer took them into police custody through court and on the pointing of these two accused persons recovered Kulahris used by them in the commission of the crime and prepared Fard Ka-35. After the investigation was complete, the Investigating Officer submitted the charge-sheet in the court.

5. Dr. A.P. Pandey (P.W. 4) conducted the postmortem examination on the dead body of Smt. Pan Kunwar on 27-10-1989 at 4.30 p.m. and found the following ante mortem injuries :-

1. Incised wound 5 cm x 2 cm x carnial (cranial) vertebrae deep between the right side of face over Rt. mandible 2 cm lateral to the chin. The injury causes to cut of great vessels of Rt. side of neck partial cut of Trachea and oesophagus also present.

2. Incised wound 3 cm x 1.5 cm x muscle deep present on the right side of nose 3 cm below Rt. angle of mandible great vessels of neck cut.

3. Incised wound 3 cm x 1.5 cm bucal cavity deep present on the left side of face 1 cm below left hygomatic poomineuce.

4. Incised wound 2.5 cm x 1 cm x muscle deep present on the left side of face 1 cm below Inj. No. (3).

5. Incised wound 2.5 cm x 1 cm bone deep present over head just above hair line on the middle.

6. Incised wound 2.5 cm x 1 cm x bone deep present on the head 3 cm above Inj. No. 5.

7. Incised wound two present at right angle each measuring 3 cm x 1 cm x bone deep at the occipital below adjoining bones.

6. In the opinion of the doctor, the death was caused due to shock and haemorrhage.

7. Dr. A.P. Pandey also conducted autopsy of the dead body of Bankey Lal deceased on 27-10-1989 at 4.36 p.m. and found the following ante mortem injuries :-

1. Five incised wound each measuring 6 cm x 2 cm x carnial (cranial) vertebrae deep present on the back & right side of neck and face in area of 22 cm x 12 cm. Rt. mandible cut and vessels of right side of neck. The trachea and oesophagus also cut on right side.

2. Two incised wounds each bearing 3 cm x 1 cm x muscle deep present on the left side of neck 4 cm above left clavicle.

3. An incised wound 3 cm x 1 cm x bone deep present over the front of head just above hair line on the middle.

4. An incised wound 6 cm x 2 cm x brain deep present on the right side of head 2 cm right to inj. No. (3).

5. Incised wound 3 cm x 0.5 cm x muscle deep present over the dorsum of right hand 3 cm below right wrist joint 2 cm tailing present.

6. Incised wound 4 cm x 1.5 cm x muscle deep present on the outer aspect of left leg 8 cm below left knee joint.

7. Multiple abrasion present on the dorsum of Rt. forearm in whole area.

8. Multiple abrasion present on the dorsum of left forearm in whole area. The doctor opined that the death was caused due to shock and haemorrhage.

8. Dr. A.P. Pandey conducted the postmortem examination on the dead body of Smt. Halki deceased on 28-10-1989 at 2.15 p.m. and found the following ante mortem injuries on her person:-

1. An incised wound 5 cm x 1 cm x brain deep present on the left side of head, 6 cm above left ear.

2. An incised wound 5 cm x 2 cm x carnial (cranial) vertebrae deep present on the front of neck trachea, oesophagus and both side great vessels cut. Injury is present at the root of the neck.

3. Incised wound 5 cm x 2 cm x muscle-deep present on the Rt. shoulder at the top.

4. Incised wound 3 cm x 2 cm x bone deep present on the right side of face on the Rt. mandible 3 cm lateral to the chin.

9. The doctor reported that the death was caused due to shock and severe haemorrhage as a result of cut of neck vessels.

10. Dr. A.P. Pandey, who had conducted the autopsy of the dead bodies of three deceased persons, had conducted the postmortem examination on the dead body of Km. Sonu also he ound the following ante mortem injuries on her person:-

1. An incised wound 8 cm x 3 cm x carnial (cranial) vertebrae deep present on the left side of neck. All great vessels on the left side of neck is cut off. Trachea oesophagus cut.

2. Incised wound 6 cm x 2 cm x muscle deep present just post lateral to injury No. 1.

3. Incised wound 5 cm x 2 cm x muscle deep present on the post as pect of left shoulder.

4. Incised wound 5 cm x 2 cm x bone deep present on the back of head 3 cm below occipital.

11. In the opinion of the doctor, the death was caused due to severe haemorrhage as a result of cut of vessels of neck.

12. After the committal of the case to the (of sessions, all the four accused persons charged under Section 302 read with Section 34 IPC. The charges were read over and explained to the accused persons in Hindi. They pleaded not guilty and claimed to be tried.

13. The prosecution examined PW-1, Ram Khilawan. He was the son of the deceased Bankey Lal. He was residing in the same house in which the occurrence had taken place. He stated his age about 13 or 14 years, but the Court found him aged about 11 or 12 years. The Court tested the mental capacity of the boy by putting him certain questions. The Court found him a competent witness. He narrated the entire prosecution story. He stated that one by one his father, mother, sister and grandmother had been brutally murdered by the accused persons. He specifically stated that it was about 11.00 a.m. He knew the accused persons from before, as they were the residents of the same village. In the cross-examination, he stated that he was taking his meals in the back room of the house. This room was being used as a kitchen and from there he came out and went towards the house of Pujari. He was cross-examined that he had seen only the murder of his father and grandmother. Even if he did not see the actual assault on his mother and sister, still his evidence is sufficient to find out the guilt of the accused persons because there was no case that any other person had murdered the other two victims. He stated that the villagers did not enter the house and were witnessing the occurrence from the Chabutra.

14. PW-2, Ghanshyam was the Chaukidar of the village. He had lodged the F.I.R. He had not actually seen the occurrence but just after the occurrence he reached the spot and saw the dead bodies. He gathered information from the villagers and went to the police station and lodged the F.I.R. There was nothing for which this witness could be disbelieved. He was a reliable witness firstly because he was Chaukidar of the village and secondly had he to give any false statement, he would have become an eye witness.

15. PW-3, Lakhan Lal, was an independent eye witness. He stated that he was going to shave his beard at the shop of Halkai barber. In the cross-examination, it was suggested that he was not going to shave his beard at the shop of Halkai barber, but was going at the shop of other barber. This cross examination suggests that the going of this witness for shaving of the beard is admitted. The witness stated that Halkai barber was not at the shop. He was waiting for him. He saw the accused persons coming armed with weapons and murdering the victims.

16. PW-4, Dr. A.P. Pandey, proved the post mortem reports of the deceased persons and stated that the death of all the victims were possible to have been caused on 26-10-1989 at 11.00 A.M.

17. PW-5, Shambhu Dayal was aged about 80 years. He was also an eye witness, he also corroborated the statement of Ram Khelawan (P.W. 1). He was present at his house at the time of occurrence. His house has been shown in the site plan in the north-west of the house of the victims. He heard the cry and went towards the house of Naththu and from there he had seen the occurrence. He also stated that one small child was lying beneath the Paalna. He had also seen the assault of Kulahri at the Paalna. From this statement, it appears that the accused persons had tried to kill the small child in the Paalna as well as gave assault which came at the wood of the Paalna. This statement may or may not be correct that there was any effort to kill that small child as well, but at least the other part of the statement of this witness that all the four victims had been murdered by the appellants is fully believable.

18. PW-6, S. I. Vijai Singh, was the Investigating Officer. He had proved the investigation and the police papers.

19. PW-7, S. I. Bare Lal Misra, was the Head Constable, who had recorded the chik report and made entry in the general diary. After this the prosecution closed its evidence.

20. The statements of the accused persons were recorded under Section 313, Cr.P.C. They denied the entire prosecution story and alleged false implication. They did not lead any evidence in their defence.

21. The learned sessions Judge heard the learned counsel for the parties. He found all the three accused persons guilty of the charge under Section 302 read with Section 34 IPC for having murdered all the four victims. After hearing on the question of sentence, the learned Sessions Judge was of the view that death punishment alone would meet the ends of justice and therefore he awarded death punishment to all the three accused persons. Being aggrieved by their conviction and the award of death punishment, the accused persons have preferred this appeal.

22. We have heard the learned counsel for the parties and have gone through the record. This is a case of broad daylight murder of four persons. The factum of death of Bankey Lal, Smt. Halki, Smt. Pan Kunwar and Km. Sonu has not been disputed. Their identity has also not been challenged. The appellants have only alleged false implication in the case. At the very outset we may observe that the learned counsel for the appellants did not seriously challenge the conviction of the appellants. He only prayed for mercy and pleaded that instead of death punishment, the appellants may be awarded life imprisonment only.

23. We will discuss this aspect of the case later on but by way of abundant caution, we will also like to enter into the merits of the case.

24. We have seen the site plan prepared by the Investigating Officer. He recovered the dead body of Km. Sonu from place ‘A’ and that of Smt. Pan Kunwar from place ‘B’. ‘A’ and ‘B’ were at the Chabutra. He also recovered the dead bedy of Bankey Lal from place ‘C’ and that of Smt. Halki from place ‘D’. These two places were inside the house of the victims. The F.I.R. of the occurrence had been lodged by the Chaukidar of the (village at 5.00 p.m. after six hours of the occurrence. The distance of the police station was 7 miles from the place of occurrence. The cruel manner in which the entire family, except one or two small children, had been murdered, the informant was bound to take so much time in collecting information and lodging the report. The F.I.R. cannot in any manner be said to be delayed or ante timed. We have also found that the F.I.R. was prompt one. The informant did not state in the examination-in-chief how he visited the police station, but it has specifically come in the cross examination that on that particular day there was strike of the bus operators and he had gone to the police station on foot. He was cross examined why he did not go to the police station on a cycle. He specifically stated that he did not know to drive cycle. He further stated that though there was tractor in the village but no one offered him tractor for the purpose. Although the informant was not an eye witness, but his conduct was very natural. As a Chaukidar of the village, he was duty bound to report the matter to the police.

25. The motive of the occurrence has been specifically alleged in the F.I.R. There is no evidence of the earlier dispute between the family of the appellants and the victims, but it is specifically alleged in the F.I.R. that before 12 or 13 days of the occurence, the wife of victim Bankey Lal was beaten by the wife of accused Panchhi and his daughter Smt. Ram Shree and thereafter the wife of Bankey Lal and Bankey Lal himself had beaten Smt. Ram Shree. This was the enmity between the parties. Although this motive was not very strong, but when Ram Khelawan (P.W. 1) and Ghanshyam entered into the witness-box neither of the parties examined or cross examined them on this point. In the cross examination of Ghanshyam (P.W. 2), it was suggested that Bankey Lal had got enmity with others and that there were two sons of Chandaniya wife of the father of Bankey Lal, but this was a mere suggestion. It was not at all said that the persons other than the accused had killed the four victims at one time. The occurrence is of broad day light. There are eye witnesses who are believable. The absence of motive is immaterial.

26. The weapon of assault in this case is said to be Hansiya and Kulahri. The injuries to all the four victims are incised wounds. These injuries were possible to have been caused by Hansiya and Kulahri. It has not been challenged by the accused person that the injuries were caused by any other weapon. Hansiya and Kulahri had been recovered by the Investigating Officer on the information given by the accused persons themselves. That part of the information is admissible under Section 27 of the Evidence Act.

27. The time of occurrence has also not been challenged. The doctor also stated that the death of all the four victims were possible to have been caused at 11.00 A.M.

28. As regards the ocular testimony, PW-1, Ram Khelawan was a child witness. He was the son of deceased Bankey Lal and Smt. Pan Kunwar. He was taking his meals in the kitchen at the time of occurrence. Therefore, he could be saved. He had seen the occurrence. The witness was suggested that he was not present in the house and could not see the occurrence. The suggestion was refuted. The presence of this witness in his own house was very much natural and probable. He had got no reason to give false statement to implicate innocent persons and screen out the real offenders.

29. PW-3, Lakhan Lai, was another eye witness. On 26-10-1989 at 11.00 A.M. he had gone to the house of Halkai barber to shave his beard. He had seen the occurrence from place ‘D’ in the site plan i.e. from infront the Chabutra of the house of Halkai barber. A bare perusal of the site plan will show that just in the south of the house of the accused persons there was a house of barber and the witness could have easily seen the occurrence from there. It was not at all suggested in the cross examination that the witness had not gone for the purpose of shaving his beard, but the only suggestion was that he had gone to the shop of another barber to get his beard shaved. The exact words are “Yeh kahna galat hai ki mai kisi doosray nai sey daarhi banwaney gaya tha. Yeh bhi kahna galat hai ki mai kisi aur nai ka intezar kar raha tha.” The witness was assertive that there was no other barber in the village except Halkai Nai. The accused side could not inform that there was any other barber in the village. In the circumstances, this witness was fully believable witness and his presence in his own house at the time of occurrence was fully natural and probable.

30. The three eye witnesses examined in this case are fully believable and explicit reliance can be placed on the ocular testimony of these witnesses. There is nothing for which their statements can be disbelieved. The ocular testimony is fully corroborated and cemented by the medical evidence. The case of the prosecution is fully established. There is also extra judicial confession about recovery of weapons. The Investigating Officer had recovered the weapons on the pointing of the accused persons. There is no law that the Investigating Officer should always be disbelieved. If his statement is trustworthy and believable, even corroboration by independent witnesses is not required, but in this particular case the statement of the Investigating Officer is fully supported by the statements of them dependent witnesses. There is nothing on the record to show that the investigation was tainted and not believable. The case of the prosecution is fully proved against the accused persons and the learned Sessions Judge was fully justified in convicting them under Section 302 read with Section 34 IPC and awarding them death punishment for having murdered Bankey Lal, Smt. Pan Kunwar, Smt. Halki and Km. Sonu.

31. We have heard the learned counsel for the parties on the question of sentence. The main thrust of the argument of the learned counsel for the appellants was that in the circumstances of the case the death punishment may be converted into imprisonment for life. Smt. Kalia ailas Ram Kali is already dead. She had got justice by God, but we have to consider the case of all the three accused persons. The age of accused Panchhi as stated by him on the date of statement was 75 years. A person who has grown so old becomes very cool and generous and is not expected to commit such heinous crime. Since accused Panchhi (who is also head of the family) had taken the law in his hand, he does not deserve any lienancy, sympathy or mercy on the ground of age. It was argued that Smt. Ram Shree is a lady. Her age was also 30 years on the date of her statement. She appears to be married, but she was the root cause of this occurrence. She had also attacked the entire family of Bankey Lal along with her parents. She was also armed with Kulhari and had taken active part in the commission of murder of the entire family of Bankey Lai. She like a man took Kulhari and took equal part in the crime. Therefore, she also does not deserve any lienancy, sympathy or mercy by this Court.

32. The appellants were the next door neighbours of the deceased persons. They should have lived like good neighbours, but all the four persons took Kulhari and Hansiya, went inside the house of Bankey Lal and butchered all the four persons one by one. We have seen the injury reports and it is apparent that all the four persons had been butchered like goat. The persons who have become so cruel do not deserve any lienancy or mercy by the Court. The attack was deliberate, calculated and the appellants fully knew what they were doing. Today, the appellants are seeking mercy on the ground of old age and lady but they never thought that the persons whom they were killing were also old and ladies. Two ladies had been murdered in this case. Smt. Halki was as old as accused Panchhi. The appellants did not show any lienancy or mercy to the victims. No sense of human virtue prevailed when they murdered a small child of 5 years, who had not even seen the full light of the day. Therefore, the appellants deserve nothing else but death punishment and the learned Sessions Judge was fully justified in awarding death punishment to the appellants.

33. In the result, the appeal is liable to be dismissed and is accordingly dismissed. The conviction and sentence recorded by the learned Sessions Judge vide judgment and order dated 3-3-1997 are hereby confirmed. The reference made by the learned Sessions Judge is accepted and the death punishment awarded to the appellants for having murdered Bankey Lai, Smt. Halki, Smt. Pan Kunwar and Km. Sonu is hereby confirmed.

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