SMT. SHAMIM versus STATE (GNCT OF DELHI) on 19 September 2018

[2018] 11 S.C.R. 677

SMT. SHAMIM

v.

STATE (GNCT OF DELHI)

(Criminal Appeal No. 56 of 2018)

SEPTEMBER 19, 2018

[RANJAN GOGOI, NAVIN SINHA AND K. M. JOSEPH, JJ.]

Penal Code, 1860 – ss.302/307/34 – Appellant-accusedstrongly opposed the marriage between her daughter (PW-4) andPW-1 – Brother and mother of PW-1 shot dead on the first floor oftheir house – Appellant’s acquittal reversed by High Court –Propriety of – Held: PW-4 is the daughter of the appellant – PW-4deposed that soon after the occurrence, the appellant told her thatshe got the brother and mother of PW-1 killed because PW-4 didnot listen to her and that PW-1 would be killed next– In a criminaltrial, normally the evidence of the wife, husband, son or daughterof the deceased, is given great weightage on the principle that thereis no reason for them not to speak the truth and shield the realculprit – There is no reason why the same principle cannot be appliedwhen such a witness deposes against a closely related accused –According to normal human conduct, a witness would tend to shieldand protect a closely related accused– It would require greatconviction and moral strength for a daughter to depose against herown mother who is an accused – PW-4’s statement can be consideredas a corroborative evidence being a voluntary extra judicialconfession, considering the nature of relationship between thewitness and the appellant – PW-3 (brother of PW-1) saw theappellant and the other accused with blood stained clothes –A bloodstained lock and key and Chunni of the appellant was also recoveredon confession of the appellant – PW-2 (sister of PW-1) was also areliable witness to the occurrence – No merit in the appeal– However,High Court’s direction denying the benefit of remission to theappellant till she completes twenty-five years of custody isunsustainable– Impugned judgment set aside to that extent only–Sentencing.

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678SUPREME COURT REPORTS

AEvidence – Injured witness – Appreciation of – Discussed.Criminal Trial – Witness – Minor contradictions in evidenceof – Effect of– Discussed.

Criminal Trial – Duty of a Judge – Discussed.

BAllowing the appeal to an extent, the Court

HELD: 1.1 In a criminal trial, normally the evidence of thewife, husband, son or daughter of the deceased, is given greatweightage on the principle that there is no reason for them not tospeak the truth and shield the real culprit. There is no reasonCwhy the same principle cannot be applied when such a witnessdeposes against a closely related accused. According to normalhuman behavior and conduct, a witness would tend to shield andprotect a closely related accused. It would require great courageof conviction and moral strength for a daughter to depose againsther own mother who is an accused. There is no reason why theDsame reverse weightage shall not be given to the credibility ofsuch a witness. PW-4 is the daughter of the appellant. She deposedthat two days prior to the occurrence, the appellant had threatenedthe witness to leave PW-1 else she would get his family memberskilled. Soon after the occurrence, having reached the house ofEher in-laws, PW-4 stepped out on the verandah. The appellantwho was standing on her own verandah told her that she got thedeceased killed because the witness did not listen to her andthat her husband would be killed next. In cross-examination shereiterated the same. The statement can be considered as acorroborative evidence being a voluntary extra judicial confession,Fconsidering the nature of relationship between the witness andthe appellant. PW-3 (brother of PW-1) deposed that whilereturning home at about 10.30 PM, he saw the appellant and theother accused coming out of his house with blood stained clothesand they proceeded towards the house of the appellant. A littleGlater the other accused came out from the house of the appellantand went away towards the lane. The witness reiterated the samein his cross examination. A blood stained lock and key has alsobeen recovered on confession of the appellant. [Paras 9, 10][682-G-H; 683-A-E]

1.2 PW-2 (sister of PW-1) was an injured witness whosethroat was slit in the occurrence. The evidence of an injuredwitness carries great weight as it is presumed that having been avictim of the same occurrence, the witness was speaking the truth.Notwithstanding the grueling nature of her cross examination,she withstood the same tenaciously. There may be someinconsistencies in her evidence, minor and trivial in nature. Butthat cannot erase her credibility as a reliable witness to theoccurrence. She deposed that the appellant came upstairs afterthe deceased persons had been shot dead by the other accused.While the accused were leaving, the appellant tripped over thewitness. The blood stained ‘Chunni’ of the appellant discoveredthe next day on her confession, therefore stands explained. Whileappreciating the evidence of a witness, the approach must bewhether the evidence of the witness read as a whole inspiresconfidence. Minor discrepancies on trivial matters not touchingthe core of the case, hypertechnical approach by taking sentencestorn out of context here or there from the evidence, attachingimportance to some technical error without going to the root ofthe matter would not ordinarily permit rejection of the evidenceas a whole. Minor omissions in the police statements are neverconsidered to be fatal. The statements given by the witnessesbefore the police are meant to be brief statements and could nottake place of evidence in the court. Small/trivial omissions wouldnot justify a finding by court that the witnesses concerned areliars. The prosecution evidence may suffer from inconsistencieshere and discrepancies there, but that is a shortcoming from whichno criminal case is free. The main thing to be seen is whetherthose inconsistencies go to the root of the matter or pertain toinsignificant aspects thereof. In the former case, the defence maybe justified in seeking advantage of incongruities obtaining inthe evidence. In the latter, however, no such benefit may beavailable to it. [Paras 11-12] [683-E-H; 684-A-E]

1.3 Each criminal trial is but a quest for search of the truth.The duty of a judge presiding over a criminal trial is not merelyto see that no innocent person is punished, but also to see that aguilty person does not escape. One is as important as the other.

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ABoth are public duties which the Judge has to perform. The trialcourt had erred and misappreciated the evidence to arrive at anerroneous conclusion. Further, the appellant was convicted withthe aid of Section 34 I.P.C., there appears no justification to singleher out for differential treatment for sentencing. In any event theHigh Court has not ascribed any special reasons for the same.BTherefore, the direction for denial of remission to the appellantfor twenty-five years is unsustainable. The judgment is set asideto that extent only. [Paras 15, 16] [685-F-H; 686-A]

State of U.P. v. Krishna Master & Ors. (2010) 12 SCC324 : [2010] 9 SCR 563 – relied on.C

Chandrappa & Ors. v. State of Karnataka (2007) 4 SCC415 : [2007] 2 SCR 630 – referred to.

Case Law Reference

From the Judgment and Order dated 10.08.2015/Order onESentence dated 12.08.2015 of the High Court of Delhi at New Delhi inCriminal Appeal No. 354 of 2015Abhay Kumar, Saurabh Mishra, Vineet Kr. Singh, Himanshu PalSingh, Ms. Shefali Vohra, Advs. for the appellant.

Ms. Geetha Luthra, Sr. Adv., P. K. Dey, T. A. Khan, Bharat Singh,FUjjwal Jain, Ms. Shivani Luthra Lohiya, Karan Nagrath, B. V. BalaramDas, Advs. for the respondent.

The Judgment of the Court was delivered by NAVIN SINHA, J. 1. The appellant has been convicted by theGHigh Court under Sections 302/307/34, I.P.C. and sentenced to lifeimprisonment, after reversing her acquittal ordered by the trial court.The appellant has further been denied the benefit of any remission insentence, till she completes twenty-five years of custody.

2. The Trial Court convicted four of the seven accused andacquitted the appellant and two others. The High Court dismissed theH

appeals against convictions, declined to interfere with the acquittals, withthe exception of the appellant.

3. On 27.03.2006 at night, Pappu and Anisha (hereinafter referredto as ‘the deceased’) were shot dead on the first floor of their house.PW-2, Heena suffered multiple injuries on her neck with a razor. Thedeceased and PW-2 are the brother/mother/sister respectively of PW-1,Ishrat Ali. PW-4, Shabnam is the daughter of the appellant, who marriedPW-1, against the wishes of the appellant. PW-3, Md. Imran is the brotherof PW-1. The parties resided in houses across each other with commontopography, divided by a lane 5 to 6 feet wide. PW-1 and PW-4 aftertheir marriage had shifted to a separate residence. PW-3 upon returninghome saw the appellant standing outside his house, followed by the otheraccused coming out of the house with blood stained clothes. The witnessentered the house to find the corpses and PW-2 in an injured conditionunable to speak, and informed PW-1 and PW-4 who then came to thespot. Earlier, in the evening, PW-2 had noticed the appellant standing onthe verandah of her own house looking towards the house of the witness.PW-4 stepped out on the verandah when the appellant told her that theincident was the consequence of the witness not listening to her, andthat she had got the deceased killed and her husband will meet the samefate.

4. The Trial Court convicted four accused under Sections 449/302/307/34 and awarded life imprisonment. The appellant was acquittedon benefit of doubt with regard to her presence, failure to recover herblood stained ‘chunni’ and lack of any evidence with regard to conspiracy.

5. The High Court in appeal against her acquittal, afterreappreciation of evidence ascribed motive to the appellant, beingperturbed and strongly opposed to the marriage between PW-4 and PW-1. The evidence of PW-2, the injured witness was considered credibleand reliable coupled with the recovery the next day of blood-stainedlock and key and the appellant’s ‘chunni’ with blood stains on it pursuantto the disclosure made by the appellant. The appellant was thus convictedin like manner under Sections 302/307/34, I.P.C.

6. Learned counsel for the appellant referring to the evidence ofthe prosecution witnesses contended that none of them has spoken havingseen blood on the clothes of the appellant. There was no material toconclude a common intention on part of the appellant as it had not been A

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Aconclusively established that she was present during the assault.Considering that the houses were located opposite each other acrossthe lane, the presence of the appellant on her own verandah before andafter the occurrence was but natural and cannot lead to any inferenceof guilt. The appellant could not have been simultaneously present atthe place of occurrence and her own house. Merely standing outside theBhouse of the deceased cannot be sufficient to infer common intention.PW-2 is unreliable as her statement was recorded late and she has mademany additions and alterations to her original statement includingcontradictions. If on appreciation of the same evidence the trial courthad arrived at a possible view to acquit the appellant, the High Court onCa reappreciation of the same evidence ought not to have convicted theappellant. Reliance was placed on Chandrappa & Ors. vs. State ofKarnataka (2007) 4 SCC 415. The test of rarest of rare cases shouldhave been applied and the appellant ought not to have been denied thebenefit of remission before twenty-five years.

D7. Learned senior counsel appearing for the State submitted thatthe order of the High Court is well considered and reasoned based onreappreciation of the evidence. PW-4, the daughter of the appellant haddeposed against her own mother. PW-2 was an injured witness whosecredibility had to be high. The presence of the appellant has beenestablished by the evidence of PW-2 and PW-3. The disclosure madeEby the appellant has led to recovery of the blood stained lock and key, asalso her ‘chunni’ with blood stains on it. The conclusion of the trial courtto the contrary has been found to be perverse.

8. We have considered the submissions on behalf of the partiesand perused the materials and evidence on record. The High Court hasFelaborately discussed the cautions and limitations to be kept in mind byan appellate court while interfering with an order of acquittal, inter aliawith reference to Chandrappa (supra). We therefore see no reasonto burden our order by repetition with the said discussion.

9. In a criminal trial, normally the evidence of the wife, husband,Gson or daughter of the deceased, is given great weightage on the principlethat there is no reason for them not to speak the truth and shield the realculprit. We see no reason why the same principle cannot be appliedwhen such a witness deposes against a closely related accused.According to normal human behavior and conduct, a witness would tend H

to shield and protect a closely related accused. It would require greatcourage of conviction and moral strength for a daughter to depose againsther own mother who is an accused. There is no reason why the samereverse weightage shall not be given to the credibility of such a witness.PW-4 is the daughter of the appellant. She has deposed that two daysprior to the occurrence the appellant had threatened the witness to leavePW-1 else she would get his family members killed. Soon after theoccurrence having reached the house of her in-laws she stepped out onthe verandah. The appellant who was standing on her own verandahtold the witness that she had got the deceased killed because the witnessdid not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, canbe considered as a corroborative evidence being a voluntary extra judicialconfession, considering the nature of relationship between the witnessand the appellant.

10. PW-3 has deposed that while returning home at about 10.30PM he had seen the appellant and the other accused coming out of hishouse with blood stained clothes and they proceeded towards the houseof the appellant. A little later the other accused came out from thehouse of the appellant and went away towards the lane. The witnesshas reiterated the same in his cross examination and has also specificallydenied the suggestion that the appellant was not seen coming out fromthe house of the witness. A blood stained lock and key has also beenrecovered on confession of the appellant.

11. PW-2 is an injured witness whose throat was slit in theoccurrence causing loss of voice requiring hospitalization for two months.The evidence of an injured witness carries great weight as it is presumedthat having been a victim of the same occurrence the witness wasspeaking the truth. She has deposed that the appellant came upstairsafter the deceased persons had been shot dead by the other accused.On the exhortation of the appellant accused Naushad, brother of PW-4, again assaulted the witness on her throat with the razor. While theaccused were leaving the appellant tripped over the witness. The bloodstained ‘Chunni’ of the appellant discovered the next day on herconfession, therefore stands explained.

12. While appreciating the evidence of a witness, the approachmust be whether the evidence of the witness read as a whole inspires A

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Aconfidence. Once that impression is formed, it is undoubtedly necessaryfor the court to scrutinise the evidence more particularly keeping in viewthe deficiencies, drawbacks and infirmities pointed out in the evidenceas a whole and evaluate them to find out whether it is against the generaltenor of the evidence and whether the earlier evaluation of the evidenceis shaken as to render it unworthy of belief. Minor discrepancies onBtrivial matters not touching the core of the case, hypertechnical approachby taking sentences torn out of context here or there from the evidence,attaching importance to some technical error without going to the root ofthe matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered toCbe fatal. The statements given by the witnesses before the police aremeant to be brief statements and could not take place of evidence in thecourt. Small/Trivial omissions would not justify a finding by court thatthe witnesses concerned are liars. The prosecution evidence may sufferfrom inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to beDseen is whether those inconsistencies go to the root of the matter orpertain to insignificant aspects thereof. In the former case, the defencemay be justified in seeking advantage of incongruities obtaining in theevidence. In the latter, however, no such benefit may be available to it.

13. PW-2 was a minor student witness aged about thirteen years.EShe broke down during her evidence and cross examination recallingthe occurrence. Her cross examination had to be deferred on morethan one date. Notwithstanding the grueling nature of her crossexamination which runs into approximately 14 pages she withstood thesame tenaciously. Her presence at the place of occurrence and injuryFcaused during the occurrence has stood unshaken. The appellant wasthe only woman present. The question for confusion of identity simplydoes not arise. The witness in her cross examination specifically deniedhaving been tutored, and from her evidence we find no reason to disbelieveher. There may be some inconsistencies in her evidence, minor andtrivial in nature. But that cannot erase her credibility as a reliable witnessGto the occurrence.

14. In State of U.P. vs. Krishna Master & Ors., (2010) 12 SCC324, disagreeing with the High Court which had doubted the credibilityof a child witness,it was observed:

“36. …… This Court fails to understand as to on what principleand on which experience in real life, the High Court made asweeping observation that it is inconceivable that a child of MadanLal’s understanding would be able to recapitulate facts in hismemory witnessed by him long ago. There is no principle of lawknown to this Court that it is inconceivable that a child of tenderage would not be able to recapitulate facts in his memory witnessedby him long ago. This witness has claimed on oath before theCourt that he had seen five members of his family being ruthlesslykilled by the respondents by firing gunshots. When a child of tenderage witnesses gruesome murder of his father, mother, brothers,etc. he is not likely to forget the incident for his whole life andwould certainly recapitulate facts in his memory when asked aboutthe same at any point of time, notwithstanding the gap of aboutten years between the incident and recording of his evidence.

37. This Court is of the firm opinion that it would be doing injusticeto a child witness possessing a sharp memory to say that it isinconceivable for him to recapitulate facts in his memory witnessedby him long ago. A child of tender age is always receptive toabnormal events which take place in his life and would neverforget those events for the rest of his life. The child would be ableto recapitulate correctly and exactly when asked about the samein future. Therefore, the specious ground on which the reliabletestimony of PW 2 Madan Lal came to be disbelieved can hardlybe affirmed by this Court.”

15. Each criminal trial is but a quest for search of the truth. Theduty of a judge presiding over a criminal trial is not merely to see that noinnocent person is punished, but also to see that a guilty person does notescape. One is as important as the other. Both are public duties whichthe Judge has to perform. The trail court had erred and misappreciatedthe evidence to arrive at an erroneous conclusion.

16. Sentencing has always been a vexed question as part of theprinciple of proportionality. The issue however need not detain us furtheras once the appellant has been convicted with the aid of Section 34I.P.C. there appears no justification to single her out for differentialtreatment for sentencing. In any event the High Court has not ascribedany special reasons for the same. We are therefore unable to sustain the AB

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Adirection for denial of remission to the appellant for twenty-five yearsand set aside the judgement to that extent only.

17. Consequentially we find no merit in the appeal except to theextent indicated.

18. The appeal is allowed only to the extent indicated.B

Divya Pandey

Appeal allowed to an extent.

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