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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.