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CASE NO.:

Appeal (crl.) 1278-1279 of 2005

PETITIONER:

Acharaparambath Pradeepan & Anr. \005Appellants

RESPONDENT:

State of Kerala \005Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS. 1280-1281 OF 2005

S.B. SINHA, J :

A ghastly murder in Mokeri East U.P. School, Paramel, Kannur Distt.,

Kerala took place on 1.12.1999 at about 10.40 a.m. K.P. Jayakrishnan

Master (deceased) was a teacher in the said school. He was the class teacher

of class VI B. The school did not have a proper building. It was a semi-

permanent shed. Whereas two sides of it had pucca walls with a height of

about seven feet, the western and eastern walls were having kutcha ones. It

had three classrooms, viz., for students of classes VA, VI B and VII B. In

the northern room, class VIIB was to be held whereas class VIB was situate

in the middle room and to its south was the class room of VA. On its eastern

side, there was only 70 cm. wall having about 2 feet height. Another

building was separated by 2.5 metres wide pathway. Classes VIB and VA

were separated only by a screen.

The deceased was the State Vice President of Bhartiya Yuva Morcha.

Appellants were members of the Communist Party of India (Marxist Group).

Political enmity between the two parties is not in dispute. There had been a

threatening to the life of the deceased. He had been provided with personal

security. At the time of incidence, the body guard of the deceased was

sitting at the gate of the school. He was overpowered by pouring some

poisonous liquids in his eyes and mouth and his service pistol was taken

away to prevent any possible obstruction that he may cause. He was, thus,

made immobile.

There was a house by the side of the said school building belonging to

a teacher named Prabhavathy.

While the deceased was teaching in class VIB, the accused persons

entered the class. Accused No. 2 Sundaran (A2), Accused No. 3 Shaji (A3)

and Accused No. 6 K.K. Anil Kumar (A6) entered from the eastern side of

the building whereas Accused No. 1 Pradeepan (A1), Accused No. 4

Dineesh Babu (A4) and Accused No. 7 Sajeevan (A7) entered from the

western side of the building. On receiving signal from A2 from the eastern

side, A1 and A4 assaulted the deceased with iron rod on the back of his

head. He cried 'Oh Mother' and then ran for safety. A1 chased him inside

the classroom. He was inflicted with further blows with iron rods several

times on different parts of his head. A4 also attacked him with deadly

weapons like iron rod, large chopping knife, axe, etc. A7 also chased him

and inflicted injuries. The deceased made a futile attempt to escape, ran

towards the south-eastern corner of the classroom near the blackboard. At

that time, A2, A3 and A6 came from the eastern side of the classroom,

trespassed thereinto and attacked the deceased. He suffered as many as 44

injuries on his person. The assailants thereafter wrote a warning on the

blackboard of Class VA threatening the witnesses with dire consequences in

case anybody dares to depose against them. The prosecution case

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furthermore is that Accused No. 5 Rajan (A5) had taken his possession in an

adjoining compound near the classroom in question with a view to scare

away any possible intruders.

The Circle Inspector (PW29) of the police station received an

anonymous telephone call about the incident. He came to the school. The

class teacher of Class VA Vijayan Master (PW1) was thereafter taken to the

police station. He lodged a First Information Report at about 11.15 a.m.

The First Information Report was recorded by PW28. Initial investigation

was conducted by PW29. The investigation was slow because of political

pressure. A special investigation group thereafter was constituted. It was

taken over by a Deputy Superintendent of Police (PW30).

The prosecution case, therefore, is that a criminal conspiracy was

hatched by the accused to do away with the deceased wherefor they formed

themselves into members of an unlawful assembly with the common object

of committing his murder.

In the First Information Report, nobody was named. PW1, however,

turned hostile. The main eye-witnesses who were examined on behalf of

prosecution are child witnesses. Dinoop (PW3) aged about seven years was

a student of Class VIB. Punya (PW4), a girl of the same age was studying in

the same class. Shinoop (PW5) aged about ten years was then in Class VA

whereas Ramisha (PW6) aged about eleven years was again a student of

Class VIB. K.M. Ashithosh (PW7) and A. Rajeevan (PW8) allegedly saw

the accused persons running away from the place of occurrence.

PW7 was a resident of Valangode near Cheruvancheri. He and PW8

allegedly had gone to Koorara in the vicinity of the school to invite players

from the Koorara Sporting Fighters Club. As they could not meet anyone,

they had been returning home in an autorickshaw. They noticed the accused

persons armed with weapons which were blood stained.

PW7 was a sympathizer of the Bharatiya Janata Party. PW8 was a

supporter of the Congress Party. They reached home on 1.12.1999 and came

to learn that the deceased had been murdered in the classroom. The

statements of PWs 7 and 8 were recorded on 5.03.2000. Statements of the

witnesses were recorded some time between 4.01.2000 to 6.01.2000.

Appellant No. 1 (A1) was arrested, on the basis of the statements made by

the eye-witnesses on 25.01.2000 and after the statements of PWs 7 and 8

were recorded, other accused persons were arrested on 6.03.2000.

Test Identification Parade in respect of A1 was held on 8.02.2000.

The said Test Identification Parade was conducted by a Judicial Magistrate

(PW24). There were three rounds of Test Identification Parade. PWs 3, 4

and 5 participated therein. PWs 6 to 8 did not take part in the said Test

Identification Parade. A1 was identified by PW5. PWs 3 and 4, however,

although could not identify A1 in the Test Identification Parade, he was

identified at the trial. According to them, he was having beard but as he was

put in the Test Identification Parade as a clean shaved person, he could not

be identified.

Another test identification parade was held on 4.04.2000 in respect of

other six accused persons which was also conducted by PW24. 36 non-

suspects were placed in the said Test Identification Parade. In was

conducted in his court room. PW3 identified A2 and A6 in the first round

and identified only A2 in the second and third round. PW4 only identified

A6 in the second round. PW5 identified A6 in the first round, A2, A4 and

A6 in the second round and A4 and A6 in the third round whereas PW6

identified A4 in the first and second rounds and did not identify any of the

assailants in the third round. PW7 identified A2, A3 and A5 in all the three

rounds whereas PW8 identified A2, A3, A4, A5 and A7 in all the three

rounds.

In Court, however, PW3 and PW5 identified A1 to A4, A6 and A7.

PW4 identified A1 and A5 whereas PW6 identified A1, A4 and A5. PW7

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identified A1 to A5 whereas PW8 identified A2 and A4 to A6.

A chargesheet was filed under Sections 143, 147, 148, 120B, 343,

449, 302, 332, 328, 394, 397, 398 and 506(i) read with Section 149 of the

Indian Penal Code. Thirty witnesses were examined by the prosecution to

prove its case. Some defence witnesses were also examined. DW2 has also

been relied by the High Court. During trial, A7 died.

As against A1 Pradeepan, the prosecution case was said to be that on

receiving signal from A2, he had hit the deceased with an iron rod thereby

causing injury on the back of his head. He chased him inside the classroom

and assaulted him repeatedly with his iron road on different parts of his

body. All the child witnesses had seen him attacking with iron rod. He was

identified by all the child witnesses in court. Whereas, the eye-witnesses

saw him assaulting the deceased repeatedly, PWs 7 and 8 saw him leaving

the scene after the occurrence along with A2 and A3. As noticed

hereinbefore, he was identified, even in the first Test Identification Parade

by PW5.

So far as A2 Sundaran is concerned, the prosecution case against him

was that along with A3 and A6, he had hidden himself behind the parapet

wall on the eastern side of the classroom and he had given signal whereupon

only A1 entered the classroom and started attacking the deceased. A2

subsequently chased him inside the classroom and attacked with deadly

weapons. He was also seen by PWs 7 and 8 leaving the scene after

commission of the crime. PWs 3 and 5 are eye-witnesses to the role of A2.

So far as A3 Shaji is concerned, he along with A2 was said to have

chased the deceased inside the classroom and inflicted lethal injuries with

deadly weapons. PWs 3 and 5 are eye-witnesses as having been inflicting

fatal injuries on the person of the deceased. He was also seen after the

commission of the crime by PWs 7 and 8. He had been identified in the Test

Identification Parade by PWs 7 and 8, as noticed hereinbefore. PW8,

however, did not identify him in court.

A4 Dinesh was said to have entered into the classroom along with A6

and A1 and attacked the deceased with deadly weapon along with other

accused. He was seen carrying sword and attacking the deceased by PWs 3,

5 and 6. He was also said to have been seen by PW8.

A5 Rajan was acquitted.

A6 Anil Kumar was seen along with A2 and others. He also chased

the deceased inside the classroom. He was seen attacking the deceased by

PWs 3 and 5. He was identified in the Test Identification Parade by PWs 3,

4 and 5. He was also identified by PW8 in court.

A7 Sajeevan died and as such it is not necessary for us to notice the

alleged role played by him.

We may briefly notice the findings of the learned Trial Judge, which

are :

1. The child witnesses could not have been in a position to identify the

accused as had been a very traumatic experience for them. In this

regard the trial court relied on the testimony of PW19, an author of a

book on Psychiatry who stated that the reaction to a traumatic incident

may vary from child to child. Trial Court held that the mind of a child

would be very clear and they would have no animosity to implicate an

innocent man and hence their evidence can be relied upon.

2. PW3 identified A1, A3, A6, A4 and A7 in court and hence the trial

court held that "evidence of PW3 brings out the fact that he knows

miscreants by sight. PW4 was able to identify only A1 and A5. Trial

Court relying on the earlier testimony of the expert pointing out the

varied reaction to a traumatic event held that PW4 may have reacted

differently and not seen all the assailants.

3. PW5 also identified A1, A2,A3,A4,A6 and A7. PW6 identified A1,

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A4 and A5. Hence on the testimonies of the above child witnesses,

the trial court held that their reaction to the event was not entirely

identical but only natural and hence it cannot be said that they were

tutored as, if that were to be so, they would have all identified the

accused.

4. As regards the alleged infirmities in holding of the identification

parade, the trial court noted that two sets of identification parades

were conducted. One only with one suspect namely A1 and the second

with A2 to A7. The Trial Court noted that three chances were given

during the parade and inspite of that only PW5 was able to identify

A1 and PW3 and PW6 were unable to do so. Trial Court however

opined that no precaution was taken by the investigating officer, to

ensure that the accused were not seen prior to the parade. Trial Court

furthermore observed that the investigating officer (PW30) had known

"the illegal consequence of his act and had deliberately given aid to

suit the defence" and that he had done it so as to help the accused and

to spoil the legal validity of the identification parade.

5. The Trial Court also faulted the conduct of the investigating officer,

stating that investigation commenced only on 8-12-99 i.e. 7 days after

the murder and the court noted that the reason for this delay remained

unexplained.

6. The Trial Court also accepted that there was an inordinate delay in

questioning and examining the witnesses, and that there were material

contradictions vis-a-vis exhibits D1-D18 but it was observed that "the

grounds of defence have to be appreciated in a court of law only when

the investigation was done with utmost fairness" and the Court yet

again noted that subsequent conduct of investigating officer was only

to aid the defence and this explained the reason for delay in arresting

the accused, delaying in conducting the identification parade." but

nevertheless the Court found the testimony of "witnesses to be

natural, trustworthy and inspired confidence."

7. As regards the testimony of chance witnesses, PW7 and PW8, who

had seen the accused persons after the incident having weapons, the

trial court held that, there is no hard and fast rule that chance

witnesses should be disbelieved and since the testimonies of PWs

3,4,5,6 "were sufficient to disclose the complicity of the accused

persons, the evidence of PWs 7&8 is not so material."

8. As regards the conduct of the investigating officer vis-a-vis the

infirmities in the investigation, the trial court stated that the same

would not mean that the prosecution should be thrown out stating

"The SC has given guidance in such a situation and the court has to

accept the trustworthy and reliable evidence given by the eye-

witnesses before the court in respect of the occurrence, if it inspires

confidence of the Court."

9. As regards the testimony of the DW1, it was found to be unreliable

and "not sufficient to create a doubt about the complicity". As

regards testimony of eye-witness DW2, it was noticed that she herself

had deposed to the effect that she had not "seen the incident and was

studying at that time" and hence came to the conclusion that "such a

witness cannot be believed." The Trial Court also said that she

attended counseling sessions conducted by the supporters of the

Marxist party and hence said that her testimony was untrustworthy."

10. The trial court also took note of the fact that the investigating officer

had not recovered any of the weapons used by the assailants, and it

was the other police officers had suo-motu recovered some weapons

without the knowledge of the investigating officer despite the fact that

PWs 3, 4, 6 had stated that they had seen the iron rod used to murder

the deceased.

11. The Trial Court came to the conclusion that A1-A4, A6 and A7 had

shared a common object and were members of an unlawful assembly.

However, it found A5 not to be connected with the offence.

By reason of his judgment and conviction and sentence dated

26.08.2003, the learned Sessions Judge found Accused Nos. 1,2,3,4 and 6

guilty of offences under Sections 143, 147, 148, 342, 449, 302 read with

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Section 149 of the Indian Penal Code and all of them were sentenced to

death and all sentences were directed to run consecutively.

The High Court, however, while agreeing with the findings of the

Trial Judge opined, that its criticism on holding of the Test Identification

Parades being not based on any material was not justified. It was

furthermore observed that even criticism in regard to holding of the Test

Identification Parade by the learned Sessions Judge was also not proper. It

furthermore opined that there was no basis for the learned Sessions Judge's

finding that the investigating officer had intermeddled with holding of the

Test Identification Parade. The High Court opined that all requisite

precautions had been taken by PW24 and that in the second Test

Identification Parade, he himself selected persons. The learned Judges of the

High Court, in this behalf, noticed the letters issued by PW24 to the

Superintendent of Central Prison and observed that the same shows that the

direction was given to the said authority and not to the investigating officer

(PW30).

The High Court furthermore noticed that A1 in his statement under

Section 313 of the Code of Criminal Procedure admitted that when he had

entered the court room of PW24, his entire body was covered.

It was also found that PW24 took all precautions to see that no

exposure took place of the accused persons and in fact 16 non-suspects

having similar age and features were mixed and all police officers were sent

out.

As regards, the second identification parade, the High Court opined

that nothing had been brought on records to show that PW24 at any point of

time violated any norms for holding the Test Identification Parade and

PW30 had no role to play therein whatsoever.

Appeals preferred before the High Court by the appellants have been

dismissed, but all sentences were directed to run concurrently.

Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of

the appellants has principally raised the following contentions:

(i) The statements of the eye-witnesses being child witnesses, their

statements should have been considered with due caution. There

being no corroboration and no closer scrutiny, no reliance

thereupon could be placed on their testimonies.

(ii) The appellants having not been identified by all the witnesses in

the test identification parade and keeping in view the fact that one

was held on 8.02.2000 and the other on 04.04.2000, i.e., after

undue delay, the same should not be relied upon.

(iii) PWs 7 and 8 were chance witnesses and keeping in view the

unnatural nature of their evidences, the same should not have been

relied upon particularly when they made their statements for the

first time on 5.03.2000 and no explanation was offered as to why

they had not made their statements at an early date.

(iv) PW1 who was also a class teacher, had only seen three assailants

and, thus, the prosecution story that seven persons took part in the

assault should not be believed.

(v) PWs 3, 4 and 6 having not identified even A1 in the Test

Identification Parade and having identified him only in court, they

must be held to have been tutored.

(vi) No reliance could have been placed on the identification of the

accused by the child witnesses as : PW3 although identified A2,

A3 and A6, but failed to identify them two times out of three

rounds of identification. Similarly, PW4 also did not identify A1.

She identified only A5 who has been acquitted. Even she did not

identify A1 even in the first Test Identification Parade. She also

did not name the accused in her statement before the police.

Similarly, PW6 could not identify A3, A4 and A6 in the Test

Identification Parade.

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(vii) The testimonies of PWs 7 and 8 should not be believed as they

were chance witnesses. They being residents of a distant village,

their presence was suspicious; they have given different versions in

regard to the purpose of their visits. The purported identification

made by them from a moving autorickshaw raises grave suspicion

about its authenticity. It was unnatural that PW7 would see blood

stained weapons but would not describe the nature of weapons they

were carrying. Although PW7 was convinced that the appellants

have committed the murder of the deceased, he did not go to the

police, or inform any of the person which was unnatural. Even

when he had gone to the house of Jaykrishnan Master where police

officers were present, he did not give any information, which

appears to be wholly unnatural. His political rivalry with the

accused being known, the chances of the appellants having been

falsely implicated by him cannot be ruled out.

Mr. J.C. Gupta, learned senior counsel appearing on behalf of State of

Kerala, on the other hand, would support the impugned judgments

contending:

(i) Incident had occurred inside the classroom and the child witnesses

being students, they could see the occurrence as also the role

played by the accused persons.

(ii) Having regard to the fact that as many as 44 injuries were inflicted

on the deceased, the occurrence must have taken some time and as

such they had enough time to identify the accused.

(iii) Even if no Test Identification Parade had been held, identification

of the accused in court being substantive evidence, there is no

reason to discard the same particularly when the children had no

animus against the appellants nor did they have any affinity to the

deceased.

(iv) The appellants having threatened the witnesses with dire

consequences that in case anybody dares to depose against them,

the stand taken by the children being really courageous, has justly

been believed by the courts below.

(v) When six persons were assaulting the deceased, it cannot be said to

be a case where a child witnesses had only a fleeting glimpse of

the accused. All of them had not run away. Some did, some did

not. As reaction to the same incident would vary from person to

person; it cannot be expected that each would react in a similar

fashion.

(vi) If the evidences of the child witnesses are natural and probable,

they cannot be disbelieved. Corroboration of the statements made

by a child witness may be by way of oral evidence or may be by

way of circumstantial evidence.

Mr. Yashank Adhyaru, learned senior counsel appearing on behalf of

the interveners would submit that all the eye-witnesses spoke about the

particular manner in which the occurrence took place and even if they were

tutored, they could not have depicted the occurrence in the manner in which

they did. It was pointed out that even they could not be shaken in the cross-

examinations.

Before adverting to the rival contentions of the parties, as noticed

hereinbefore, we may take note of some special features of the case.

There were about 40 students in the school. Out of them, four

students deposed in the court. PW1, who was the class teacher of class VA,

was the first informant. Even he turned hostile. PW9 who was the

bodyguard could not identify the assailants, as some poisonous substance

was thrown on his face and eyes. All the eye-witnesses were traumatized.

They could not go back to the classroom and for that matter to the school.

Some of them lost their valuable time in getting admission in another school

or to settle themselves. Investigation for whatever reason had not been

conducted properly. The slipshod manner in which the investigation was

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carried out is amply borne out from the records. Despite the fact that a

teacher in the classroom before the students of tender age had brutally been

murdered and PW29, who reached the place of occurrence soon thereafter,

does not appear to have shown a very keen interest in the matter. He

although conducted the inquest and prepared a mahazar but did not even

note down whether a warning was written on the classroom of class VA

despite the fact that the number of witnesses deposed to that effect. Same is

the conduct of PW28 who also did not say as to whether there had been any

writing on the blackboard in any of the classroom. PWs 3, 4 and 6

categorically stated that the deceased was teaching them mathematics and

they had been asked to solve some problems. Some writings, thus, were

there on the blackboard but photographs did not show the same. Even no

attempt was made by PW29 to trace out the accused immediately.

He merely sent PW1 to his jeep to the police station for the prpose of

registration of the FIR and waited outside the school. There had been a

public protest. Curfew had also to be imposed resulting in constitution of a

special investigating team. PW30 took over the investigation of the case

only on 8.12.1999. By that time, much evidence must have been lost.

Witnesses were examined in between 4.01.2000 and 6.01.2000. A large

number of witnesses might have been questioned but then why the witnesses

had to be examined till 22.08.2000 betrays our comprehension. At least the

teachers, students and the persons having land and residential houses near

the school could have been examined promptly. Their statements could

have resulted in apprehension of accused. At least more evidences could

have been found out.

We although appreciate that in a case of this nature the witnesses must

gather courage over a period of time to come out with their part of story but

we are not very sure that the same standard should be applied to PWs 7 and

8. They were members of a political party. PW7 was a sympathizer of the

Bharatiya Janata Party. He came to learn about the incident on the same day

at about noon. He even went to the house of the deceased. Police officers

were present there. He must have talked to others that the accused persons

committed the murder but still he had not opened his mouth.

He went to the village Koorara to invite players for playing kabbadi.

He did not meet anyone. On his way back, he took an autorickshaw because

he did not get a bus. He saw the accused with blood stained weapons in

their hands. In his cross-examination, he stated that he was not aware as to

what had happened in the school, but in his examination-in-chief, he had

categorically stated that on reaching home, he received the information that

the deceased was murdered in the classroom by cutting and stabbing. We,

therefore, do not intend to place any reliance on his testimony. The learned

trial judge, as noticed hereinbefore, also did not place any reliance on his

testimony. Almost for the similar reasons, PW8 cannot be believed.

Some caution is also required to be exercised in case of chance

witnesses. It requires a close scrutiny of the evidence of a chance witness.

In Harjinder Singh Alias Bhola v. State of Punjab [(2004) 11 SCC

253], it was stated:

"The foregoing discussion leads us to conclude

that the Trial Court and the High Court did not consider

certain material aspects apparent from the evidence and

there was almost a mechanical acceptance of the

evidence of the two chance witnesses whose evidence

should have been evaluated with greater care and caution.

As pointed out by this Court in Satbir v. Surat Singh, a

cautious and close scrutiny" of the evidence of chance

witnesses should inform the approach of the Court. In

these circumstances, this Court need not feel bound to

accept the findings. The overall picture we get on a

critical examination of the prosecution evidence is that

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PWs 3 & 4 were introduced as eye-witnesses only after

the dead body was found."

Descriptions of a few persons were given in the statements of the

child witnesses. Except A1, however, they were not arrested. The reason

for their being not arrested had not been disclosed. They were arrested, as

noticed hereinbefore, on 6.03.2000 only after their names were disclosed by

PWs 7 and 8. Test Identification Parade of the accused persons, other than

A1, was held on 4.04.2000. Why the Investigating Officer took such a long

time for arranging a test identification parade has not been disclosed.

Furthermore, A3 was not identified. A6 was present when the first Test

Identification Parade was taken but he had not been identified by any of the

witnesses.

We are not impressed with the purported explanation in regard to the

holding of test identification parade. Identification of the said accused by

the child witnesses, having regard to the facts and circumstances of the case

lead us to a definite conclusion that they were the only persons who

participated in the commission of the offence.

They are entitled to benefit of doubt. There had been great delay in

conducting the Test Identification Parade. Undue delay has also occurred in

recording the statements of PWs 7 and 8.

We, therefore, are of the opinion that it is a fit case where benefit of

doubt should be given to the said appellants.

The case of A1, however, stands on a different footing. He was first

to enter the classroom. He was carrying an iron rod in his hand. He was the

first person who had given the first blow on the back of the deceased. The

deceased cried out 'Oh mother'. All the witnesses testified to the said fact.

Even if we are to discard the prosecution case that six persons had

committed the crime, the role played by A1 was witnessed by all the four

child witnesses. He was put to Test Identification Parade. He was having

beard when the occurrence took place. When he was put to Test

Identification Parade, he did not have any. Still he could be identified by

PW5. Different rounds of identification had taken place.

Comment made by Mr. Jethmalani that how PW5 could identify A1

when he had been facing the southern wall of the shed in which three classes

were situated, is, in our opinion, does not carry much weight. The two

classrooms were separated only by a screen. There was a gap. The students

would go to class VIB through the gap.

Attention of one student might have been drawn to the occurrence.

He might have been looking towards the door; whereas others' attention

might not be drawn to it. It is not in dispute that the screen fell down after

the accused persons entered with force in class VIB. A person who had seen

the accused persons entering into the room and forcing their way to another

classroom can notice them. There was no reason to disbelieve the witnesses

that the assailants had entered Class VIB via Class VA. Why did they do so

cannot be explained but why A1 entered on receiving signal from

somebody's else cannot also be explained. Why an assailant had been seen

to cause the first injury chasing the deceased, it would have certainly been

possible for him to remember the face. PW5 had another occasion to look to

the accused when he had tried to run away but fell down. He, thus, saw the

accused again.

PW5 saw A1's photograph in a newspaper in connection with another

function. He identified the accused and went to the police. He had seen him

earlier also conversing with his class teacher outside the classroom. That

may be one of the reasons why PW1 did not name the assailants although

they were known to him and ultimately turned hostile.

PW5 certainly stated the same for the first time in court. But, it would

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be too much to expect of any person to say everything in his statement

before the police. To see a person by face is one thing but to know him by

his name is different. Some improvements in the testimony of a witness

would not lead to rejection thereof in its entirety.

We will refer to the evidence of the other child witnesses a little later

but we may notice the legal position operating in the field.

Section 118 of the Indian Evidence Act seeks to exclude evidence of

those who may suffer from intellectual weaknesses. It reads as under:

"Who may testify.- All persons shall be competent to

testify unless the Court considers that they are prevented

from understanding the questions put to them, or from

giving rational answers to those questions, by tender

years, extreme old age, disease, whether of body or mind,

or any other cause of the same kind."

In terms of the said provision, therefore, all persons shall be

competent to testify unless by reason of tender years, the court considers that

they are incapable of understanding the questions put to them and of giving

rational answers. It is for the Judge to satisfy himself as regards fulfillment

of the requirements of the said provision. The opinion of the learned Judge

had been recorded and, thus, it satisfies the test laid down by this Court in

Rameshwar S/o Kalyan Singh v. The State of Rajasthan [AIR 1952 SC 54].

It is not the case of the appellants that the court had failed to comply

with the statutory obligations in this behalf. It is also not the case of the

appellants that their testimonies otherwise should not have been accepted.

A child indisputably is competent to testify if he understands the

question(s) put to him and gives rational answer thereto. None of the

witnesses have been found to be suffering from any intellectual incapacity to

understand the questions and give rational answers thereto.

In Ratansinh Dalsukhbai Nayak v. State of Gujarat [(2004) 1 SCC

64], this Court stated the law, thus:

"6. Pivotal submission of the appellant is regarding

acceptability of PW-11's evidence. Age of the witness

during examination was taken to be about 10 years.

Indian Evidence Act, 1872 (in short the 'Evidence Act')

does not prescribe any particular age as a determinative

factor to treat a witness to be a competent one. On the

contrary, Section 118 of the Evidence Act envisages that

all persons shall be competent to testify, unless the Court

considers that they are prevented from understanding the

questions put to them or from giving rational answers to

these questions, because of tender years, extreme old age,

disease- whether of mind, or any other cause of the same

kind. A child of tender age can be allowed to testify if he

has intellectual capacity to understand questions and give

rational answers thereto. This position was concisely

stated by Brewer J in Wheeler v. United States. The

evidence of a child witness is not required to be rejected

per se; but the Court as a rule of prudence considers such

evidence with close scrutiny and only on being

convinced about the quality thereof and reliability can

record conviction, based thereon\005"

Indisputably, certain factors are required to be considered as regards

reliability of the testimony of the child witnesses 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 child witnesses.

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Some experts are of the opinion that if a ghastly crime is committed in

presence of the child, the same is registered in his mind very effectively. It

may be or may not be. But there may not be any dispute that what may be

effectively registered in one's mind, may not be so registered in the mind of

the others.

The question came up for consideration recently before this Court in

Yuvaraj Ambar Mohite v. State of Maharashtra [2006 (10) SCALE 369]

wherein it was stated:

"PW-3 was a child witness. The learned Sessions

Judge satisfied himself that he was capable of deposing

before a court of law. He categorically stated that his

father used to treat the deceased as his sister. He used to

visit her house very often. He used to help her in

purchase of mutton, milk, vegetables, etc. The deceased

called him on that day for purchasing mutton. When he

went to deliver the same, he saw Appellant. On his

query, the name of Appellant was disclosed. He

identified him as a person teaching Judo Karate in School

No. 9. It may be true that he had not been able to

identify Appellant in court because he was not having

beard but he was identified when his photograph was

shown to him. In his evidence, he categorically stated

that not only his father, the deceased and Appellant had

been taking liquor but he also disclosed that they were

consuming whisky mixed with beer while taking meal.

As he saw Appellant recoiling on the body of the

deceased, he went to the balcony as he had become

ashamed on seeing the same. He was given a sum of Rs.

100/- for getting a bottle of liquor. He brought it. He

was asked again to get another bottle. He did so again.

They consumed the same whereafter he was again asked

to bring a third bottle which request was also complied

with. He found the deceased adjusting the channel of TV

and Appellant had been standing nearby with his hand

around the neck of the deceased. He remembered also

the title song of the serial which was being exhibited in

the TV. He categorically stated that when he came back

in the afternoon, he was not allowed to go inside by

Appellant. PW-4 also came and she was also not allowed

to go inside on the plea that the deceased was sleeping."

On the said premise the child witness was believed.

Strong reliance has been placed by Mr. Jethmalani on Panchhi and

Others v. State of U.P. [(1998) 7 SCC 177] wherein this Court has laid down

that the evidence of a child witness must find adequate corroboration before

it is relied upon but then it was also stated therein that it was more a rule of

practical wisdom than of law.

If some corroboration was necessary, PW5 was amply corroborated

by PWs 3, 4 and 6. They might have not been able to identify A1 in the Test

Identification Parade but the reasons stated by them cannot be wished away.

A person may be identified with or without beard in different circumstances.

The identification of A1 cannot be discarded as each one of them had

sufficient time to see him particularly when as many as 44 injuries had been

inflicted and a warning had been written on the blackboard. The deceased

was evidently attacked by a large number of persons. It was therefore not a

case of a fitting glimpse of the accused by the witnesses. Some of the

witnesses ran but some of them did not. Sometime even identification in

court is accepted even if no Test Identification Parade is held.

In Malkhansingh and Others v. State of M.P. [(2003) 5 SCC 746], a 3-

Judge Bench of this Court held so stating:

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"It is well settled that the substantive evidence is the

evidence of identification in court and the test

identification parade provides corroboration to the

identification of the witness in court, if required.

However, what weight must be attached to the evidence

of identification in court, which is not preceded by a test

identification parade, is a matter for the courts of fact to

examine. In the instant case the courts below have

concurrently found the evidence of the prosecutrix to be

reliable and, therefore, there was no need for the

corroboration of her evidence in court as she was found

to be implicitly reliable. We find no error in the

reasoning of the courts below. From the facts of the case

it is quite apparent that the prosecutrix did not even know

the appellants and did not make any effort to falsely

implicate them by naming them at any stage. The crime

was perpetrated in broad daylight. The prosecutrix had

sufficient opportunity to observe the features of the

appellants who raped her one after the other. Before the

rape was committed, she was threatened and intimidated

by the appellants. After the rape was committed, she was

again threatened and intimidated by them. All this must

have taken time. This is not a case where the identifying

witness had only a fleeting glimpse of the appellants on a

dark night. She also had a reason to remember their faces

as they had committed a heinous offence and put her to

shame. She had, therefore, abundant opportunity to

notice their features. In fact on account of her traumatic

and tragic experience, the faces of the appellants must

have got imprinted in her memory, and there was no

chance of her making a mistake about their identify\005"

PW5, therefore, had been corroborated by PWs 3, 4 and 6. PW3 was

sitting in the second row when he saw three persons entering into the

classroom. He saw the deceased running from one corner of the classroom

to another. He was chased and overpowered by three of them and others

joined thereafter. PW3 had been in classroom throughout. So were PWs 4

and 6. Presence of the child witnesses is not in doubt. However, they have

reacted differently but their evidence is not unnatural.

This is a case where the children have shown a rare and strong

courage, which their teachers have failed to show. It was expected that the

teachers would speak out the truth but they did not.

The prosecution witnesses are also supported by the medical evidence.

It will bear repetition to state that 44 injuries were inflicted on the deceased.

Injury Nos. 1 and 2 are as under:

"1) Incised wound 8 x 2 cm. bone deep spindle shaped

placed obliquely across the midline on middle scalp.

2) Incised wound 15 cm. x 1.5 cm. extending from

just to the right of midline to left, fracturing the parietal

bone and exposing the dura."

One of the injuries corroborates the evidence of the witnesses. Injury

No. 2 had caused a fracture which could have been caused by way of an iron

rod. PW15 Scientific Assistant in his report Ex. P17 noted the presence of

blood stains in the cemented portion of pathway and also on the side wall of

the pathway.

DW2 was examined on behalf of the defence. She had seen the

incident. She, however, could not identify the assailants stating that she had

been studying but she corroborated the prosecution witnesses to the extent

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that the deceased had cried 'Oh Mother' whereafter she ran away. Only

because a few of them had run away, the same would not mean that all

others would do so. PWs 3 to 6 had withstood the test of cross-examination.

Their testimonies are consistent and uniform. They might not have been

able to state the details and features of all the assailants in their statements

before the Investigating Officer but at least in material particulars they did.

There may be some delay in examinations of PWs 3 to 6 by the

investigating officer. Delay in recording the statements of the eye-witnesses

to the occurrence, normally is looked down upon but each case has to be

considered on its own facts. The learned Trial Judge in his elaborate

judgment has noticed that the investigating officer has not done his best.

We have also noticed the slipshod manner in which case was investigating.

In State of U.P. v. Satish [JT 2005 (2) SC 153] as regards delayed

examination of the witnesses, this Court stated:

"19. As regards delayed examination of certain

witnesses, this Court in several decisions has held that

unless the Investigating Officer is categorically asked as

to why there was delay in examination of the witnesses

the defence cannot gain any advantage therefrom. It

cannot be laid down as a rule of universal application that

if there is any delay in examination of a particular

witness the prosecution version becomes suspect. It

would depend upon several factors. If the explanation

offered for the delayed examination is plausible and

acceptable and the court accepts the same as plausible,

there is no reason to interfere with the conclusion\005"

We, therefore, do not see any reason to disbelieve the testimonies of

PWs 3 to 6 so far as A1 is concerned.

Defective investigation by itself may not lead to a conclusion that the

accused is innocent.

In Visveswaran v. State Rep. by S.D.M. [(2003) 6 SCC 73], this Court

held:

"Before we notice the circumstances proving the

case against the appellant and establishing his identity

beyond reasonable doubt, it has to be borne in mind that

the approach required to be adopted by courts in such

cases has to be different. The cases are required to be

dealt with utmost sensitivity, courts have to show greater

responsibility when trying an accused on charge of rape.

In such cases, the broader probabilities are required to be

examined and the courts are not to get swayed by minor

contradictions or insignificant discrepancies which are

not of substantial character. The evidence is required to

be appreciated having regard to the background of the

entire case and not in isolation. The ground realities are

to be kept in view. It is also required to be kept in view

that every defective investigation need not necessarily

result in the acquittal. In defective investigation, the only

requirement is of extra caution by courts while evaluating

evidence. It would not be just to acquit the accused solely

as a result of defective investigation. Any deficiency or

irregularity in investigation need not necessarily lead to

rejection of the case of prosecution when it is otherwise

proved."

In State of M.P. v. Mansingh & Ors. [(2003) 10 SCC 414], this Court

held:

"Even if it is accepted that there was deficiencies

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in investigation as pointed out by the High Court, that

cannot be a ground to discard the prosecution version

which is authentic, credible and cogent. Non-examination

of Hira Lal is also not a factor to cast doubt on the

prosecution version. He was not an eyewitness, and

according to the version of PW 8 he arrived after PW 8.

When PW 8 has been examined, the non-examination of

Hira Lal is of no consequence."

The question which now arises for consideration is as to whether we

should uphold the death sentence imposed upon A1. In the peculiar facts

and circumstances of this case, we are of the opinion that it cannot be said to

be a rarest of rare case warranting imposition of the extreme punishment.

The question as regards imposition of death sentence has been

considered recently by this Court in Aloke Nath Dutta & Ors. v. State of

West Bengal [Criminal Appeal Nos. 867-868 of 2005 disposed of on 12th

December, 2006]. We are not reiterating the same.

While upholding the sentence imposed by the learned Trial Judge as

also the High Court, we only convert the death penalty to rigorous

imprisonment of life under Section 302/149 of the Indian Penal Code.

Convictions and sentences on other charges are upheld. Criminal Appeal

Nos. 1278-1279 of 2005, so far as A1 is concerned, is dismissed subject to

the modification of sentence to the extent mentioned hereinbefore and that of

A4 is allowed.

Other accused persons are given benefit of doubt and they are

acquitted. Criminal Appeal Nos. 1280-1281 of 2005 are allowed

accordingly. They are directed to be set at liberty unless wanted in any other

case.