Full Judgment Text
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.667 of 2011
GUL SINGH @ GULIYA & ORS. ..... APPELLANTS
VERSUS
STATE OF M.P. & ANR. ..... RESPONDENTS
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This appeal has been preferred against the conviction and
sentence of the appellants under Section 302/34 of the Indian
Penal Code (IPC) for the murder of Mishribai for which they
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stand sentenced to life imprisonment apart from conviction and
sentence of appellant Gul Singh @ Gulia under Section 376 IPC
and conviction of appellants for other offences as appearing
from the operative part of the order of the trial Court and the
High Court which is clear from the impugned Judgment of the
High Court as follows :
“The appellants have preferred this appeal against
the judgment dated 07/10/1999 of the Vth Additional
Sessions Judge, Indore, passed in Session Trial
No.331/1998 by which the appellants have been
convicted under Sections 366, 368 read with Section
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34 of the Indian Penal Code to rigorous imprisonment
for ten yeas and fine of Rs.1,000/-, in default of
payment of fine to rigorous imprisonment of six
months, under Section 376(2)(g) of the IPC to
rigorous imprisonment for ten years and fine of
Rs.1000/- in default of payment of fine to further
rigorous imprisonment for six months under Section
302/34 to imprisonment for life and fine of Rs.1,000/-,
in default of payment of fine to further rigorous
imprisonment for six months; and, under Section
307/34 to rigorous imprisonment for five years and
fine of Rs.500/-, in default of payment of fine to
rigorous imprisonment for three months. All the
substantive sentences have been directed to run
concurrently.
The operative portion of the High Court judgment is as follows:
……The Appeal of Gul Singh @ Guliya is dismissed
and his conviction and the sentence passed against
him are maintained except that his conviction u/s 376
(2)(g) is altered to Sec. 376(1) and the punishment
awarded thereunder is maintained; the appeal as
regards appellant No.2 – Roomal s/o Dalsingh Bhil,
No.3 Gulab s/o Thavriya Bhil and No.4 – Mohan s/o
Gobriya Bhil is partly allowed. While their conviction
u/s 366, 368/34, 302/34 and 307/34 and the sentence
awarded thereunder are maintained, their conviction
u/s 376(2)(g) is set aside.”
2. Case of the prosecution is that on the night intervening
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th th
24 /25 of May, 1998, while Girdhari had gone to the farm of
his employer for driving the Tractor and other family members
were asleep in his house, at 02.00 mid-night, the accused
persons with a view to kidnap Parubai (PW 3), arrived, armed
with weapons like Dharia , Falia and Lathi and started assaulting
Setulbai, Mishribai, Mohan and Sunderlal. As a result of the
deadly assault, Mishribai succumbed to the injuries on the spot,
Sunderlal (PW 6) sustained a fracture in his hand, Mohan (PW 1)
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sustained injury on his head and both shoulders and Setulbai
(PW 5) also sustained two incised wounds and two lacerated
wounds,. Thereafter the accused persons dragged away
Parubai (PW 3). Later, she was subjected to rape.
3. Accordingly, First Information Report (FIR) was lodged by
Mohan (PW 1) and the accused were apprehended. Though in
the FIR only Gul Singh was named, in the statement of Sunder
Lal (PW 6) to the police all other accused were immediately
named. After investigation, the accused was sent up for trial.
4. A post mortem was conducted on the body of Mishribai
and the death was found to be homicidal with following injuries :
“(1 )Incised wound on the forehead to nose on right
side 2” x ½” x muscle deep;
(2) Incised wound on the face over the upper lip
1” x ½” x cutting of the lip;
(3) Incised wound on the chin 2” x ½” x bone
deep;
(4) Penetrating wound on the right side of neck
1” x ½” x 1” cutting carotid artery.”
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5. Injured Mohan (PW 1) was found to be having following
injuries :
“(1) Incised wound extending from neck to right
shoulder to the left 15 x 1 cm x ?
(2) Incised wound over right ear extending to the
skull 8 cm x 1 cm x ?
(3) Incised wound 2 cm x ½ cm x ? anterior to
the left ear;
(4) Incised wound 2 cm x 1 cm x ? on occipital
region;
(5) Incised wound 3 cm x 1 cm x ? over the
occipital region;
(6) Incised wound 4 cm x 1 cm x ? over the
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occipital region.”
6. Parubai (PW 3) had following injuries :
“(1) Swelling on right temporal, chin margins tender;
size 1” x 1”
(2) Abrasion with swelling anterior left side of
knee 1” x 1”;
On internal examination there was an older tear of
hymen 10, 6, 1 O’clock margins tender in the region
and vaginal slide was prepared for further
investigation.”
7. Fracture was also found on the hand of Sunder Lal (PW 6).
Prosecutrix was recovered by the police after 4-5 days of the
incident. She was also medically examined by Dr. Alka Verma
(PW 18) who found an injury on the right side of her head which
was a contusion 1” x 1”. She was complaining of pain. There
was also an abrasion on the left side of the knee measuring 1” x
1” and swelling. In her internal examination, she found that her
hymen was torn at 1, 6 and 10 O’clock position and the vulva
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had signs of injuries, but there was no tenderness. She,
therefore, opined that though there was evidence that sexual
intercourse had taken place with the prosecutrix, it could not be
stated with any exactitude whether she was subjected to recent
intercourse.
8. Considering the evidence of injured witnesses, Sunder Lal
(PW 6), Mohan (PW 1), Setulbai (PW 5) and Parubai (PW 3) and
other corroborating evidence, the courts below have convicted
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and sentenced the appellants.
9. We have heard learned counsel for the parties.
10. Learned counsel for the appellants submitted that all the
accused were not named in the FIR by Mohan (PW 1) and
prosecutrix (PW 3) did not know the accused and learnt about
their names only from their conversation. PW 6 was child
witness and his testimony could not be accepted.
11. Learned counsel for the State supported the conviction and
sentence of all the appellants.
12. We have carefully perused the record and find no reason
to interfere with the findings recorded by the courts below with
regard to the conviction of the appellants for the murder of
Mishribai and also other offences and also for the offence of
rape committed by Gul Singh. We find the evidence of Mohan
(PW 1), Sunder Lal (PW 6), Setulbai (PW 5) and prosecutrix (PW
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3) to be credible. The evidence of Sunder Lal (PW 6) who is said
to be 15-16 years of age, also inspires confidence and is
corroborated by other evidence on record, particularly the
evidence of the prosecutrix.
It is well settled that evidence of child witness cannot be
rejected unless the same is tutored or unless the same is
unreliable. In Prakash and Anr. vs. State of Madhya
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Pradesh , it was observed :
1
(1992) 4 SCC 225
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“11………..We do not think that a boy of about 14
years of age cannot give a proper account of the
murder of his brother if he has an occasion to witness
the same and simply because the witness was a boy
of 14 years it will not be proper to assume that he is
likely to be tutored.”
Again, in Dattu Ramrao Sakhare and Ors. vs. State of
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Maharashtra , it was observed :
“5. …….A child witness if found competent to
depose to the facts and reliable one such evidence
could be the basis of conviction. In other words even
in the absence of oath the evidence of a child
witness can be considered under Section 118 of the
Evidence Act provided that such witness is able to
understand the questions and able to give rational
answers thereof. The evidence of a child witness and
credibility thereof would depend upon the
circumstances of each case. The only precaution
which the court should bear in mind while assessing
the evidence of a child witness is that the witness
must be a reliable one and his/her demeanour must
be like any other competent witness and there is no
likelihood of being tutored. There is no rule or
practice that in every case the evidence of such a
witness be corroborated before a conviction can be
allowed to stand but, however as a rule of prudence
the court always finds it desirable to have the
corroboration to such evidence from other
dependable evidence on record. In the light of this
well-settled principle we may proceed to consider
the evidence of Sarubai (PW 2).”
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In the present case not only the evidence of the child
witness is reliable and not tutored, it is corroborated by other
testimony. The complainant and prosecutrix have no axe to
grind against the accused persons. The accused had the motive
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(1997) 5 SCC 341
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to kidnap Parubai and they trespassed into her house armed
with various weapons and caused death of one family member
and caused injuries to other family members and abducted the
prosecutrix who was recovered after 4-5 days. All the accused
have thus been rightly convicted and sentenced.
13. Accordingly, we do not find any ground to interfere. The
appeal is dismissed.
…………………………….J.
[ V. GOPALA GOWDA ]
………………………………..J.
NEW DELHI [ ADARSH KUMAR GOEL ]
September 16 , 2014
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ITEM NO.1D-For Judgment COURT NO.14 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 667/2011
GUL SINGH @ GULIYA & ORS. Appellant(s)
VERSUS
STATE OF M.P. & ANR. Respondent(s)
Date : 16/09/2014 This appeal was called on for JUDGMENT today.
For Appellant(s)
Mr. V. Ramasubramanian,Adv.
Mr. A. Lakshminarayanan, Adv.
For Respondent(s)
Mr. C. D. Singh,Adv.
Ms. Sakshi Kakkar, Adv.
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice V.Gopala
Gowda and His Lordship.
The appeal is dismissed in terms of the signed order.
JUDGMENT
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable judgment is placed on the file)
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