Full Judgment Text
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1265 OF 2006
BABLI @ RAJWANTI ..... APPELLANT
VERSUS
STATE OF HARYANA ..... RESPONDENT
O R D E R
1. Six persons, Rohtas, his wife Phoolwati, Babli @
Rajwanti, Sadhu Ram, Pada @ Jai Singh and Har Krishan
were tried for offences punishable under Section
302/149 IPC for having committed the murders of Om
Prakash, his wife Satwanti, and their four children,
Rekha, Ajit, Dharmender and Rakesh on the late evening
th
of 20 June, 1996 in village Jhanswa Kalan, Police
Station Sahlawas, District Rohtak, Haryana.
th
2.1 The trial court in its judgment dated 10 April,
1997, Sessions Judge, Rohtak, convicted Rohtas, Sadhu
Ram, Pada @ Jai Singh and Har Krishan for the aforesaid
offences and sentenced them to death whereas the other
accused were sentenced to imprisonment for life. The
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accused thereupon filed an appeal in the High Court of
Punjab and Haryana whereas the matter was referred
under Section 366 of the Code of Criminal Procedure by
the Sessions Judge for the confirmation of the death
sentence. The High Court vide the impugned judgment
dismissed the appeal but also declined the murder
reference thereby reducing the sentence on Sadhu Ram,
Pada and Har Krishan to life as well. The present
appeal has been filed at the instance of Babli @
Rajwanti alone as it appears that the other accused
have accepted their conviction and sentence.
2.2 The case was initiated on the statement of P.W.
3 - Manju, the only surviving child of Om Prakash and
Satwanti and the only one who witnessed the incident
from outside the house as she was returning home after
watching TV in the house of Ram Chander Brahman who
lived just across the road. She, accompanied by
Pradhan Suraj Bhan, went to police Station Sahlawas and
lodged a report at about 11:45p.m. in which the names
of the accused, the weapons that they were carrying and
the injuries caused by them were given. On the
completion of the investigation, the accused were
brought to trial and convicted and sentenced as
mentioned above. The trial court as well as the High
Court have, perforce, relied almost exclusively on the
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statement of P.W. 3 – Manju.
3. Mr. K.B. Sinha, the learned senior counsel for
the appellant cognizant of the fact that the entire
matter would hinge on Manju's statement has sought to
challenge her credibility. He has first pointed out
that the evidence of a child witness was always beset
with problems as a child would often be swayed by his
or her imagination and was also liable to tutoring and
it was, therefore, incumbent on the court to be fully
convinced about the reliability of such a witness
before basing its decision only on this evidence. He
has also submitted that there was no apparent motive
for the appellant to have joined the others in the
assault as she could not have been a beneficiary in the
property dispute between the accused and the deceased
groups who were very closely related to each other. He
has finally submitted that in any case there was no
evidence to show that the appellant shared the common
object to commit murder with that of her co-accused as
it was not clear as to the injuries that she had been
caused to the deceased.
4. The learned counsel for the State has, however,
supported the judgment of the trial court.
5. It is true, as contended by Mr. Sinha, that the
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entire case would hinge on Manju's evidence as she is
the only survivor of Om Prakash's family. In the FIR,
she has given full details as to what she had seen from
just outside her house as she was returning, after
having gone to watch the TV at a neighbour's place.
When Manju was brought into the witness box, the
Sessions Judge put several questions to her to test her
intelligence and her capacity to understand as to what
she was talking about and after he had satisfied
himself about her suitability as a witness that she was
questioned by the parties. We find that the answers
given by Manju were spontaneous, and natural, given in
the vernacular of the area which greatly enhances her
value as a good witness. Manju in the course of her
examination in chief supported the facts in the FIR and
when cross examined she met the cross examination
forthrightly and with confidence. We see from her
cross examination that except for one or two irrelevant
answers which were not in any way material to the case,
no fact could be elicited by the defence from her
statement. It is true, as contended by Mr. Sinha, that
the possibility of tutoring of a child is a possibility
but it must also be accepted that the tutoring would
ordinarily take place for the purposes of the questions
to be asked in the examination in chief and it would be
difficult to tutor a child with respect to the question
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which might be asked in the cross examination.
6. Mr. Sinha has, however, cited Abbas Ali Shah v.
Emperor AIR 1933 Lahore 667 and Nirmal Kaur v. State
AIR 1992 SC 1131 in support of his submission with
regard to the evaluation of the evidence of a child
witness. These judgments merely reiterate the well
settled position that as a child witness is prone to
tutoring and a fanciful imagination the Court must be
satisfied about the capacity of the child before
relying on his or her evidence. In any case, it is for
the trial court who has seen the demeanour of the child
to ascertain as to whether the child was a reliable
witness.
7. We have also examined Mr. Sinha's argument with
regard to the lack of motive insofar as the appellant
herein was concerned. We see from the geneaology that
the appellant was the daughter of Hawa Singh and the
sister of Sadhu Ram who was one of the accused and
whose conviction has become final. It is also true
that all the accused were the first cousins of Om
Prakash and thus very closely related to each other.
Undoubtedly appellant who is a married lady may not be
a beneficiary out of the property dispute which had
led to the murders but the fact that she had joined the
others is proved from the statement of P.W. 3 – Manju,
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more particularly, as she had caused specific injuries
to some of the deceased. The factum of traditional
family loyalties within a rustic family with an
agricultural background cannot be ruled out.
8. Mr. Sinha has finally submitted that a case under
Section 302 of the IPC was not made out against the
appellant and at the worst it could be a case of
culpable homicide not amounting to murder. We are
unable to accept this contention. We see from the
record that the appellant had caused as many as 6 or 7
injuries most of them on the head of the deceased with
a rapri that she was carrying and in any case she had
joined the other co-accused who between them had caused
as many as 50 injuries to the six deceased in a
particularly vicious and brutal manner.
9. For the reasons given above, we are not inclined
to interfere in this matter. The appeal stands
dismissed.
..................J
[HARJIT SINGH BEDI]
..................J
[A.K. PATNAIK]
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NEW DELHI
JANUARY 28, 2010.