At, High Court of Rajasthan
By, THE HONOURABLE MR. JUSTICE MOHAMMAD RAFIQ & THE HONOURABLE MR. JUSTICE VINIT KUMAR MATHUR
For the Appellants: Lakhan Singh Tomar, S.S. Mahla, Advocates. For the Respondent: Sudesh Saini, Public Prosecutor.
Published In:- Published In 2017 CrLJ 2394, 2017 (2) WLC 326
1. These two criminal appeals have been filed by the accused-appellants Smt. Pushpa and Anandi Lal challenging judgment and order dated 15.09.2009 passed by Additional Sessions Judge(F.T.) No.1, Ajmer(for short 'the trial court') whereby they have been convicted for offence under Sections 302 IPC and sentenced to life imprisonment and fine of Rs. 5,000/-, in default whereof to further undergo three months additional rigorous imprisonment and for offence under Section 201 IPC and sentenced to undergo seven years rigorous imprisonment with fine of Rs. 1,000/-, in default whereof to further undergo one month's additional rigorous imprisonment. Both the sentences were ordered to run concurrently.
2. Brief facts of the case giving rise to these appeals are that on 17.03.2008, complainant Ghanshyam Singh @ Pappu(P.W.3) submitted a written report (Exhibit P-7) at Police Station Ramganj, Ajmer alleging that he is residing in Deepdarshan Colony since last six years, one Om Prakash was residing in front of his house with his family, who used to do the work of mason. On 14.03.2008 at 7.30 A.M., he saw Om Prakash going to his work. Om Prakash is also known as Pappu Kana and Pappu Mistri. On the last night, children of nearby vicinity told him that Pappu Kana has been killed and buried in his house by his wife. When he enquired from Maya, daughter of Om Prakash, she told him that her mother had killed and buried her father in the morning of day before yesterday. On the basis of aforesaid report, FIR No. 32/2008 was registered for offences under Sections 302 and 201 IPC read with Section 34 IPC and investigation commenced. Upon completion of investigation, police filed charge sheet against Smt. Pushpa and Anandi Lal before the concerned court. The case was committed to the Court of Sessions, Ajmer wherefrom it was transferred to the Court of Additional Session Judge(Fast Track) No. 1, Ajmer. The trial court framed charges against the accused-appellants for offences under Sections 302-302/34 and 201-201/34 IPC. The accused-appellants denied the charges and claimed to be tried. The prosecution in support of its case produced as many as 17 witnesses and exhibited 29 documents. Thereafter, statements of the accused-appellants were recorded under Section 313 Cr.P.C. wherein the accused appellants pleaded not guilty and that they have been falsely implicated in the case. However, the defence produced only two witnesses and did not produce any document. The trial court vide impugned judgment dated 15.09.2009 convicted and sentenced the accused-appellants in the manner as indicated herein above. Hence, this appeal.
3. Mr. Lakhan Singh Tomar, learned counsel for the appellant Smt. Pushpa argued that it was a blind murder case and the police failed to nab the real culprits and the accused appellants have been falsely implicated in the case. When the police could not solve the blind murder, they implicated wife of the deceased and the contractor under whose control and supervision the deceased used to work as mason. Ghanshyam @ Pappu(P.W.3) in the written report alleged that he lastly saw the deceased Om Prakash in the morning at around 7.30 on 14.03.2016 and thereafter, he was not seen. In the night of previous day, i.e. on 16.03.2008, children of the colony were heard talking that appellant Smt. Pushpa has buried the dead body of her husband Om Prakash after committing his murder in her house. When the informant enquired from Maya(P.W.9) daughter of the appellant Smt. Pushpa, she confirm
Please Login To View The Full Judgment!
d the same. When investigating officer, Shakoor Mohammad(P.W.16) was asked whether he tried to find out any other children to whom Maya(P.W.9) told so, he could not give any explanation and admitted that apart from children of the deceased, nobody told him so. This makes version of Ghanshyam Singh @ Pappu(P.W.3) doubtful.4. Learned counsel argued that while written report (Exhibit P-7) was submitted at 4.30 P.M. on 17.03.2008, if the chalked FIR(Exhibit P-24) is examined with fard panchayatnama(Exhibit P-1), it would be evident that originally FIR was prepared on 16.03.2008 but thereafter, by scoring out, 17.03.2008 was indicated as date of its preparation. This overwriting has been created at the bottom of the 'panchayatnama' also where 16.03.2008 was written, but by overwriting it was made 17.03.2008. Similarly, in the memo prepared for delivery of dead body(Exhibit P-2) at the bottom date was mentioned as 16.03.2008, which was originally written as 17.03.2008, but by overwriting, it was made 18.03.2008. Recovery memo of belongings of the deceased has been prepared on 18.03.2008. Similarly Site Plan(Exhibit P-8) is shown to have been prepared on 17.03.2008 whereas post mortem report(Exhibit P-10) itself was prepared on 18.03.2008. It is argued that the trial court erred in relying on the testimony of Maya(P.W.9) and Babu(P.W.10) aged 9 years and 7 years respectively, who are respectively daughter and son of the deceased as well as accused-appellant Smt. Pushpa. Reading of their statements with the statement of informant Ghanshyam Singh @ Pappu(P.W.3) would clearly reveal that it is concocted story.5. Learned counsel argued that Ghanshyam Singh @ Pappu(P.W.3) in his cross-examination stated that he had signed written report(Exhibit P-7) at around 10.30 in the night that would mean that this report was signed by him on 16.03.2008 and not on 17.03.2008 at 4.30 P.M. He also stated that he went to police station with the people on the day when dead body was found. This implies that dead body was found even before FIR was lodged. This witness also stated that the police had carried one blanket(rajai), one pillow and one 'gudadi' from the house of the deceased. Learned counsel for the appellant submitted that the police produced two witnesses namely Smt. Jahida(P.W.7) and Ugma Ram(P.W.8) on the allegation that the appellant Pushpa had illicit relations with co-accused Anandi. Both these witnesses have not supported the aforesaid allegation and turned hostile. Maya(P.W.9), aged 9 years, daughter of the deceased and appellant Smt. Pushpa, in her cross examination admitted that whatever she was speaking in the Court, that was tutored by her uncle. The statement which she gave in the court was based on a written statement given to her to read and she read such statement 4- 5 times before she appeared in the trial court. Learned counsel, therefore, argued that it is highly unsafe to rely on the testimony of a tutored witnesses. She also stated that she did not see Anandi Lal coming to their house earlier and name of Anandi Lal was told to her by the police personnel. The police had taken this witness, her mother accused-appellant Smt. Pushpa, her younger brother Babu and Jahida with them and subjected them to beating. Similarly, Babu(P.W.10), aged seven years, son of the appellant Smt. Pushpa and deceased, has stated that the police personnel had taken him, his mother, Jahida and his sister to police station. Police had also taken cot, bed and pillow with them. The police had also carried with them 'kulhadi', weapon of offence. No identification parade was held for identifying the accused Anandi Lal. The police did not release them till they were interrogated. It is, therefore, evident that both the child witnesses were tutored and they have been coerced into to giving such false statement against their own mother.6. Mr. S.S. Mahla, learned counsel appearing on behalf of accused-appellant Anandi Lal also referred to discrepancies in the memo of recovery of dead body, according to which various documents were concocted by the police during investigation. Panchayatnama(Exhibit P-1) was prepared on 16.03.2008 and by overwriting it was made 17.03.2008. Memo of delivery of dead body(Exhibit P-2) was originally prepared on 17.03.2016 and by overwriting it was made 18.03.2008. Site plan of place of incident(Exhibit P-8) was shown to have been prepared on 16.03.2008 as per the description given in the top thereof, but it was signed on 17.03.2008 in the bottom. Learned counsel referred to statement of Ghanshyam Singh @ Pappu(P.W.3) informant, who gave written report wherein he stated that on enquiry, Maya(P.W.9) told him that her mother murdered her father day before yesterday and buried his dead body. That would mean that this information was given to Ghanshyam Singh(P.W.3) on 17.03.2008 and murder must have taken place on 15.03.2008. It is highly unnatural for these witnesses to remain silent for as long as two days. Besides, statements of these witnesses become doubtful because both of them stated that they along with their mother Smt. Pushpa and Jahida were taken to police station and were detained there for three days, which would mean that they made statements on being pressurized by the police. Maya(P.W.9) in examination in chief made specific allegation against appellant Anandi Lal, but in cross-examination she stated that she never saw Anandi Lal in her house ever before and his name was told to her by the police. The police had taken his mother, Smt. Pushpa, Jahida and younger brother Babu, apart from herself, to police station where they were subjected to beating. This witness in cross examination also stated that whatever statement she was giving in the Court was given to her by her uncle in writing and she read it 4-5 times before it was given in the Court. She also stated that the police detained her for as long as three days and at that time, the police had also carried from their house a 'kulhadi', cot and bed. Learned counsel submitted that she stated that she used to sleep at 8.00 P.M. and get up in the morning at 6.00 A.M. If that was so, how would it be possible for her to witness the incident. Similarly, learned counsel argued that statement of Babu(P.W.10) aged seven years also cannot be relied because while he has named accused in his examination in chief, but in cross-examination he stated that his name was told to him by the police. This witness has stated that police had detained him, his sister Maya(P.W.9), mother and Jahida and the police had taken cot, bed and pillow with them to the police station. Both Maya(P.W.9) and Babu(P.W.10) have stated that his father used to drink liquor and their mother and father used to fight.7. Learned counsel submitted that Rameshwar Lal(P.W.13), witness of recovery of kulhadi(Exhibit P-18) and Site Plan of such recovery(Exhibit P-19) have not supported the case of the prosecution. Ratan Lal(P.W.15), who was attesting witness to seizure memo of underwear and vest of the deceased(Exhibit P-3) and delivery of dead body for last rites(Exhibit P-2), recovery of seizure of sleeping pills, one blood smeared pillow, papers and its site plan(Exhibit P-4 and 5), also not fully supported prosecution case. Accused appellant Anandi Lal has thus been falsely implicated in the present case. Learned trial court discussed statements of the witnesses in general and cursory manner and has not carefully examined the same.8. Mr. S.S. Mahla, learned counsel relied upon the judgment of the Supreme Court in Bhagwan Singh and Others v. State of M.P., AIR 2003 SC 1088 to argue that evidence of a child witness has to be carefully evaluated. Adequate corroboration has to be looked from other evidence to such testimony. If it appears that there was a possibility of his being tutored, the court should be careful in relying on his evidence. Learned counsel for the appellant submitted that in the aforesaid case, incident took place at mid night and statement of the child was that after seeing his mother being assaulted by the accused, he went back to sleep. The Supreme Court held that this shows that conduct of child was unnatural and his testimony cannot be relied. In the present case both the child witnesses after seeing the incident went to sleep and they did not inform this fact to anyone for as long as two days. Their conduct is, therefore, highly doubtful and cannot be relied. Reliance is also placed upon Division Bench judgment of this Court in Chhinder Kaur @ Chhipkali & Ors. v. State of Raj. 2008(1) WLC (Raj.) 705 wherein it has been held that testimony of a child witness should only be accepted after the greatest caution and circumspection. The rational for this is that it is common experience that a child witness is most susceptible to tutoring. Reliance is placed upon the judgment of the Supreme Court in Orsu Venkat Rao v. State of Andhra Pradesh, AIR 2004 SC 4961, in which case also statement of child witness on the ground of his unnatural conduct was held to be not reliable.9. Mr. Sudesh Saini, learned Public Prosecutor opposed the appeals and supported the impugned judgment. He argued that the accused have rightly been held guilty of offence of murder as the charges against them have been proved beyond reasonable doubt. In order to bring this point home, learned Public Prosecutor read over the relevant portion of the impugned judgment from para 13 onwards. Learned Public Prosecutor also referred to FSL Report(Exhibit P-30) and submitted that 'kulhadi', the weapon of offence, was found to contain human origin blood of B Group and blood of human origin of B Group was also found on vest and pillow of the deceased, which was used to put him to death. Besides, reference is made to FSL Report(Exhibit P-31), examination report of sleeping pills given to deceased, which gave positive test for the presence of Diazepam(a benzodiazepine tranquuillizing drug). Learned Public Prosecutor submitted that so called discrepancies in certain memos prepared by the police during investigation have been discussed by the learned trial court in its judgment. In this connection, he referred to para 44 of the impugned judgment where it has been mentioned that FIR which was lodged on 17.03.208 is the only FIR and the defence neither put any question to investigating officer in this regard, nor otherwise proved lodgment of any other FIR. Allegation that the police has suppressed the real FIR was not believed. Not only sleeping pills, which were given to the deceased by Smt. Pushpa, but also pillow, bed and weapon of offence kulhadi were recovered, all of which were found to contain human blood of B Group. It is argued that Maya(P.W.9) and Babu(P.W.10) are child witnesses and have given true statements wherein they although waivered in one or two lines here and there due to their tender age, but their overall testimony inspire confidence. It is, therefore, prayed that the present appeals may be dismissed.10. We have given our anxious consideration to rival submissions and carefully perused the material on record.11. Although it is true that in some of the memos, which the police prepared, date of 16.03.2008 was mentioned as the date of lodgement of FIR whereas in the bottom of these memos, date below signatures has been indicated as 17.03.2008. Learned Trial Judge in this connection has observed in para 44 of the impugned judgment with reference to Exhibit P-8, Exhibit P-22, Exhibit P-22; Exhibit P-23 that in upper portion of these exhibits, 16.03.2008 has been indicated to be date of lodgement of FIR but in the bottom date of their preparation has been mentioned as 17.03.2008. As per the prosecution written report was submitted to the police on 17.03.2008 at 4.30 P.M. by the complainant. Defence failed to put any question to investigating officer during trial as to whether any other FIR was lodged on 16.03.2008 in connection with present case than the present FIR. Learned trial court, therefore, concluded that Exhibit P-7 was first FIR of the incident and therefore, lacuna aforementioned was held to be minor and inconsequential, being clerical mistake in preparation of the documents. The trial court has noted that on the top of various memos where such mistake has crept in-namely-the investigating officer has mentioned 16.03.2008 as the date, but in the bottom part, where the maker of the document has signed he has indicated correct date. We may give an illustration to justify this reasoning of the learned trial court because we during scrutiny of record found that in the memo of delivery of dead body (Exhibit P-2) to brother of the deceased, on top portion, date has been indicated as 16.03.2008, but in the bottom originally it was written as 17.03.2008, but after overwriting it was made 18.03.2008. We find no justification that how dead body could be delivered on 16.03.2008 or for that matter on 17.03.2008, when as per post mortem report(Exhibit P-10), post mortem itself was conducted on 18.03.2008 at 12.15 P.M. Therefore, there indeed appears to have occurred clerical mistakes in preparation of these memos, which has repeated in many of them, apparently because they were prepared around the same time and by the same person. The fact, however, remains that 17.03.2008 was the date, on which written report was submitted and it was also the date of lodgement of FIR. Despite this kind of lapses on the part of investigating officer, whole of the prosecution case on such serious allegation, which otherwise stands proved beyond reasonable doubt, as would be seen from following analysis of evidence, cannot be thrown away. Argument of learned counsel for the appellant in this behalf therefore does not convince us.12. Before adverting to examine the testimony of child witnesses, let us examine the law laid down by the Supreme Court in catena of judgments as to the manner in which their evidence has to be appreciated. We may, in this connection, notice judgment of the Supreme Court in State of Madhya Pradesh v. Ramesh & Another, (2011) 4 SCC 786 wherein the Apex Court, after revisiting its previous judgments, laid down the law as to how the evidence of a child witness should be assessed. Para 14 of the judgment is worth reproduction, which is as under:"14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."13. The Supreme Court in Gagan Kanojia & Another v. State of Punjab, (2006) 13 SCC 516 held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.14. The Supreme Court in State of Uttar Pradesh v. Krishna Master & Others, (2010) 12 SCC 324 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child 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 may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.15. The Supreme Court in Himmat Sukhadeo Wahurwagh & Others v. State of Maharashtra, (2009) 6 SCC 712 held that The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him.16. The Supreme Court in Nivrutti Pandurang Kokate & Others v. State of Maharashtra, (2008) 12 SCC 565 while dealing with the child witness has observed as under:"10. 6.......7.........The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."17. The Supreme Court in Panchhi & Others v. State of U.P., (1998) 7 SCC 177 while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that,"the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring"18. In Mangoo and Another v. State of Madhya Pradesh, AIR 1995 SC 959, the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.19. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, the Supreme Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Supreme Court further held as under:".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."20. The Supreme Court in Raj Kumar(supra) also followed its judgment in State of Madhya Pradesh v. Ramesh & Another(supra) and observed that the court has to form an opinion from circumstances as to whether the witness is able to understand the duty of speaking the truth and further in a case of child witness, the court has to ascertain that the witness might have not been tutored. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. Trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting questions to him.21. In view of the law as to reliability of the child witness, we now proceed to examine the contention that child witnesses herein were tutored particularly when one of the witnesses, Maya(P.W.9) stated that her uncle gave a statement to read, which she read 4-5 times before she made statement in the Court has to be dealt in the context of the fact that this witness was aged 9 years only. Her statement was recorded on 23.04.2009 and therefore, by that time, she was eight years. Her cross-examination is complete and clear wherein she categorically stated that her father used to doubt character of appellant Pushpa and on the fateful day, when her father came to house in the evening, he asked her mother to prepare tea, but her mother told him to instead drink milk. She mixed sleeping pills in the milk, as a result of which, her father fell asleep. In the night, they went to sleep. However, sometime thereafter, the door of their house was knocked from outside, as a result of which this witness woke up and saw appellant Anandi Lal, contractor and her mother talking each other. Her mother as well as Anandi Lal threatened this witness Maya(P.W.9) and her younger brother, Babu(P.W.10) that if they tell anyone about the incident, they would also be put to death. This witness also stated that when Anandi Lal reached their house in night, first blow of kulhadi was inflicted by him on the neck of his father and second blow was inflicted by her mother on the neck and thereafter, they buried dead body of her father in the kitchen. This witness further stated that in the morning, appellant Anandi Lal, contractor went away but he sent tractor trolley of sand to their house, which was spread in the kitchen by her mother where dead body of her father was buried.22. Similar statement has been made by Babu(P.W.10), aged seven years, that his father used to doubt chastity of his mother. On the day of incident, his mother gave milk after mixing sleeping pills therein to his father, as a result of which, his father fell asleep. After some time, they also went to sleep. In the night, Anandi Lal contractor came to their house. In fact, he knocked the door, which was opened by his mother. They kept talking to each other for some time and thereafter, his mother brought kulhadi and gave it to Anandi Lal, who inflicted kulhadi blow on the person of his father and then her mother also inflicted kulhadi blow. When his father started groaning, his mother forcefully put the pillow on his face and put him to death. Then they dug a pit in the kitchen and buried dead body of his father there. In the morning, Anandi Lal sent a trolley full of sand. His mother spread this sand in the kitchen where the dead body was buried. It is a matter of coincidence that similar question was put to this witness by defence counsel that whether his uncle has given him a statement for reading 3-4 time, but this witness stood firm to his ground and refused to fall in any such trap and stated that whatever statement he had given in the Court was based on his personal knowledge and no one gave him anything to read. Though Maya(P.W.9) stated that his uncle gave her statement which she read 4-5 times, but there could be no written statement to read in the court. Obviously, this child witness of tender age could not understand the implication of the question and slightly wavered while answering this leading question. But quality of her testimony has to be judged on overall consideration of her statement and also in conjunction with the statement of her younger brother, who could successfully parried such question. What is significant to note is that there is great amount of consistency in the statements of both the witnesses. Therefore, contention that they have stated that police had carried with them cot, bed, pillow and kulhadi from the place of incident and recoveries have been falsely shown at the instance of the accused-appellants and further that both the child witnesses, their mother, Anandi Lal and Jahida were detained by the police for as long as three days and owing to this pressure, they were making statements against the appellants, is noted to be rejected.23. Though another prosecution witness Jahida(P.W.7) was declared hostile, but it is not that she has not at all supported case of the prosecution. She in the examination in chief stated that she as well as Pushpa used to work under Anandi Lal contractor, but she did not know what kind of relations were there between Pushpa and Anandi Lal contractor. In cross-examination when she was confronted with her statement given to police (Exhibit P-15) from place A to B, she admitted to having given such statement. In that portion, what she stated was that during this period, Anandi Lal and Pushpa had developed physical relations. She was also confronted with her police statement marked from G to H place where she stated that when they used to go to work as labourers under Anandi Lal contractor, she was aware of the fact that Pushpa was having illicit relations with Anandi Lal. Even Pushpa told her that she was in love with Anandi Lal, contractor. Pushpa used to live in the company of Anandi Lal most of the times. When she did not deny having given such statement, thus even though, Jahida was declared hostile, but this witness in cross-examination should be taken to have supported case of the prosecution at least to the extent that Pushpa had illicit relations with Anandi Lal, contractor.24. Both the accused appellant thus had common intention to put deceased Om Prakash to death as they wanted to get rid of him. This is also supported from the version of Maya(P.W.9) and Babu(P.W.10), who have consistently stated that their father used to doubt chastity of their mother and they used to quarrel with each other. Therefore, the argument that these two child witnesses along with Pushpa and Jahida were detained by the police for as long as three days and owing to it, they were speaking against the accused-appellants, cannot be countenanced. This is also because Jahida(P.W.7) has turned hostile, but has not alleged that she and these two child witnesses were detained by the police to give statements against the appellants. Even Ghanshyam Singh @ Pappu(P.W.3) in his statement has not supported the allegation that they were detained by the police for as long as three days. In cross-examination, these two child witnesses were made to say that the police had taken with them weapon of offence. Even this cannot be a reason to completely discard recovery of weapon of offence particularly when it has been found to contain human blood of B Group, which is evident from FSL Report (Exhibit P-30). Human blood of B group was also found on vest and underwear of the deceased as also on the pillow used to throttle neck of the deceased. FSL Report(Exhibit P- 31), which is examination report of sleeping pills given to deceased, which gave positive test for the presence of Diazepam(a benzodiazepine tranquuillizing drug), though it gave negative tests for alkaloids and barbiturates.25. In fact, the defence has produced statement of Babu(P.W.10), who was six years old(Exhibit D-2) recorded by the police under Section 161 Cr.P.C. on the very day of lodgement of FIR i.e. 17.03.2008 in which he has given substantially similar statement which he gave in the Court. Exhibit P-27 is the memo of information under Section 27 of the Evidence Act given by the accused Anandi Lal, which eventually led to recovery of kulhadi vide Exhibit P-18. Although it is a fact that Shokeen Ali(P.W.12) and Rameshwar Lal(P.W.13) attesting witnesses to Exhibit P-18 and Exhibit P-19 have not supported the same. But they too do not deny the fact that their signatures are contained on these memos, but they denied that recovery of kulhadi was made pursuant thereto and that too only qua Pushpa and not regarding Anandi Lal. Shakoor Mohammad(P.W.16), investigating officer has supported prosecution case. He has also proved memo of information given under Section 27 of the Evidence Act by Pushpa(Exhibit P-26) about sleeping pills and blood stained pillow which were recovered at her instance from her house vide Exhibit P-4 and Exhibit P-5. Prem Singh(P.W.6) attesting witness to these memos has supported recovery and Ratan Lal (P.W.15) have supported also such recoveries. Seizure memo of blood stained blanket and one gudadi(Exhibit P-22) has also been recovered by investigating officer as well as Babu Lal(P.W.14).26. Although it is true that like any other case, investigation by the police in the present appears to have many lacuna but even then this Court has to appreciate the evidence adduced by the prosecution in totality as to whether evidence presented before the Court, if accepted, does not prove guilt of the accused-appellant beyond reasonable doubt. In the present case, keeping in view the testimony of two child witnesses, Maya(P.W.9) and Babu(P.W.10), statement of informant, Ghanshyam Singh @ Pappu(P.W.3), part statement of Jahida(P.W.7) and Shakoor Mohammed, I.O.(P.W.16), sequences of recoveries and the factum of motive and recovery of dead body from own house of appellant Pushpa and presence of child witnesses in the said house are all factors, which persuade us to overlook these minor discrepancies and lacuna in investigation carried out by the police, as in our considered view, the evidence, which has been led by the prosecution in the present case, brings home guilt of the accused beyond any reasonable doubt. We are, therefore, in agreement to what has been observed by the learned trial court while recording findings in para 32 to 54 of the impugned judgment and ultimately recording finding of conviction of the accused-appellants.27. In view of above, discussion, there is no merit in these appeals and the same are accordingly dismissed. Judgment of conviction and order of sentence of the accused-appellant under Sections 302 and 201 IPC dated 15.09.2009 passed by the trial court is hereby confirmed.28. Office is directed to place a copy of this judgment on record of connected appeal.
"2017 CrLJ 2394, 2017 (2) WLC 326,"