Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2203 of 2010
Radhey Shyam & Ors. …..Appellants
Versus
State of Rajasthan …..Respondent
J U D G M E N T
Abhay S. Oka, J.
FACTUAL ASPECTS
The appeal is by accused nos.9, 2 and 1
1.
respectively, who have been convicted for the
offences punishable under Section 148 and Section
302 r/w Section 149 of the Indian Penal Code (IPC).
There were 29 accused named in the charge sheet,
out of which accused nos.1, 2, 5, 7, 9, 15, 17 and
Signature Not Verified
20 were convicted by the Sessions Court and the
Digitally signed by
Anita Malhotra
Date: 2023.04.12
16:55:40 IST
Reason:
remaining 21 were acquitted. By the impugned
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judgment, the High Court has upheld the
conviction of the appellants.
2. There was a political rivalry between the
family of the deceased Raghunath Singh and some
of the accused persons who belong to the Ahir
community and who had formed a party known as
th
Azad party. The incident is of 16 April 1976. PW
6 Shiv Raj Singh, who is the brother of the
deceased Raghunath Singh, lodged First
Information Report (FIR). A group of Ahirs attacked
the deceased. According to the prosecution case,
PW nos.2, 3 and 4 were the eyewitnesses. The Trial
Court discarded the testimony of PW2 but believed
the testimony of PW3 Krishna, the minor, who was
the daughter of the deceased, and PW4 Kanwarbai,
who is the mother of the deceased.
CONTENTIONS OF THE PARTIES
3. The learned counsel appearing for the
appellants submitted that PW3 is a child witness
whose evidence is required to be scanned very
cautiously. Inviting our attention to the evidence of
PW3 Krishna and, in particular, her cross
examination, she submitted that her testimony
cannot be held to be reliable, particularly when the
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identification of the accused made by the witness in
the Court is highly doubtful. Moreover, PW4 could
not identify a single accused in the Court and,
therefore, it was unsafe to rely upon her testimony.
She also pointed out that there was a delay of 3
days in sending the FIR to the learned Magistrate.
There was a political rivalry between the family of
the deceased and the political party to which the
accused belonged and, therefore, during the period
of these three days, false implication of the accused
must have taken place.
4. Learned senior counsel representing the
State urged that perusal of the answers given to the
preliminary questions put to the child witness (PW
3) shows that the witness had good intelligence and
understanding. He submitted that though she
correctly identified the accused no.1 as the son of
Ramchander, by mistake she mentioned the name
of Modu (acquitted accused), who was also the son
of one Ramchander. He submitted that this is a
minor discrepancy which is not sufficient to
discredit the version of PW3. He submitted that
PW4 Kanwarbai named five persons as the
accused. He submitted that PW4 was not able to
identify the accused with reference to their names.
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He submitted that this can happen easily due to
lapse of time. He would, therefore, submit that the
conclusions drawn by the High Court and the
Sessions Court, as regards the guilt of the
appellants, cannot be faulted with.
REASONS AND CONCLUSIONS
5. We find that the prosecution case depends
only on the testimony of PW3 Krishna and PW4
Kanwarbai. The age of PW3 was 12 years at the
time of the recording of her evidence. Evidence of
PW3 cannot be rejected only on the ground that
her age was 12 years. However, being a child
witness, her evidence needs a very careful
evaluation with greater circumspection considering
the fact that a child witness can always be easily
tutored. Therefore, we have made a careful
scrutiny of her version. In the examinationin
chief, she stated that she saw that 3035 persons
were assaulting her father (the deceased). She
stated that she identified persons, namely,
Raghunath (accused no.1); Shyama (accused no.8);
Bhavana (Bhawani) – accused no.20; Modu and
Chaturbhuj (accused no.15). There are two
accused by the name of Modu (accused no.2 and
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accused no.14). Though she named Shyama
(accused no.8), she described him as Bhavana’s
(Bhawani’s) brother. As can be seen from the
names of the accused, Bhavana is the son of Kana
Ahir and accused no.9 Radhey Shyam is also a son
of Kana Ahir. For identifying the accused who were
present in the dock, a very peculiar procedure was
followed. The accused, whose names were taken by
PW3, were told to stand outside the dock and
others were told to continue in the dock. While the
five accused were being brought out of the dock,
the witness was told to remain out of the Court
Hall. This procedure was unfair to the accused as it
was aimed at facilitating easy identification of the
five accused by the minor witness. Such a
procedure is not fair to the accused. It is noted in
the deposition that PW3 identified accused Radhey
Shyam (accused no.9) as a son of Kana by calling
him Shyama. She correctly identified accused
Bhavana, son of Kana, Modu, son of Nathu and
Chaturbhuj as a son of Onkar. She identified
accused no.1 Raghunath as Modu as a son of
Ramchander. In the crossexamination, when a
Court question was put to her, calling upon her to
explain why she has identified Modu by saying that
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he is Raghunath, the witness replied that she had
forgotten due to lapse of time. In response to a
question who was Radhey Shyam, she replied that
he was a brahmin and is not an accused. She
accepted that her grandmother had told her that
their family had a fight with Ahirs, who have
formed the Azad party. She also accepted that her
grandmother told her the names of Modu, Bhavan,
Chaturbhuj and Raghunath as persons forming the
party. She stated that she had told the police while
recording her statement that 3035 persons
belonging to the Azad party were assaulting her
father. The manner in which the minor witness
identified the accused, it becomes unsafe to convict
the accused based only on her testimony.
6. Now we turn to the deposition of PW4
Kanwarbai, who is the mother of the deceased.
According to her version, PW3 Krishna came to her
weeping and stated that 3035 persons were
beating her father. When she rushed to the spot,
she found her son (Raghunath) crying in pain. She
stated that in her presence, Gopal (accused no.17)
inflicted a blow on the ear of the deceased. She
stated that accused no.20 gave a lathi blow on the
arm and left armpit of her son. She stated that
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accused no.1 Raghunath, accused no.7 Pratap and
accused no.5 also gave lathi blows to her son.
When she was questioned whether she was able to
identify 3035 accused persons with their names,
her response was that she knew their names and
also their father’s names and she was in a position
to identify them. Thereafter she stated several
names. When she was called upon to identify the
accused, she could not identify any one of the
accused with reference to their names. The learned
Judge noted in the deposition that PW4 could not
identify any accused. The note made by the
learned Sessions Judge reads thus :
“Note: The witness by going close the
accused, taking round again and again,
by pushing aside in front and by going
close the rear person tried to have a
look, identified in this manner and
sometime by standing for a moment
close to the accused went ahead and on
return could identify someone, also
stated that vision is not clear because
there is some darkness. Two tube lights
are burning in court whereby sufficient
light is there and one tube light is on
the side of the accused themselves.
The
witness stated that though the light
is sufficient and faces are also visible
but it is not assessed as to who are
these persons.”
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(emphasis added)
Thereafter PW4 was asked who were the accused
out of the persons present. She stated that all of
them were there but their faces were not clear for
identification.
Thus, PW4, who claims to be an eye witness,
7.
could not identify a single accused by name in the
Court though she claimed that she was in a
position to identify the accused by their names as
well as their respective father’s name.
8. We have already discussed the evidence of
PW3, the minor witness. Her testimony shows
that she got confused while identifying at least two
accused though five accused whom she allegedly
named were made to stand separately from the
remaining accused. The version of PW3 Krishna,
when it comes to the identity of the accused, does
not inspire confidence. In any case, it is very
unsafe to convict the accused on the basis of such
testimony, especially when the only other eye
witness (PW4) believed by the Trial Court could not
identify a single accused in the Court. The learned
Trial Judge noted that there was sufficient light in
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the courtroom and faces of the accused were clearly
visible.
We are, therefore, of the considered opinion
9.
that the identity of the named accused as
assailants of the deceased has not been established
in the Court beyond a reasonable doubt. Then
what remains is the evidence of the alleged recovery
of the weapons of assault at the instance of the
accused. The conviction cannot be sustained only
on the basis of the alleged recovery.
Therefore, the conviction of the appellants
10.
under impugned judgments and orders is hereby
quashed and set aside and the appellants are
acquitted of the charge levelled against them. The
appellants are on bail. Their bail bonds stand
cancelled. The appeal is accordingly allowed.
……………………………J.
[ABHAY S. OKA]
..…………………………J.
[RAJESH BINDAL]
New Delhi
April 12, 2023.
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