Full Judgment Text
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
Signature Not Verified
Digitally signed by
VINOD LAKHINA
Date: 2018.09.19
11:02:03 IST
Reason:
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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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