IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 509 OF 2006

Virendra @ Buddhu & Anr.                                                …. Appellants   

versus

State of U.P.                                                                              …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal  is  filed by the two accused who have been convicted by the

Division Bench of the Allahabad High Court under Section 302 read with

Section  34  of  the  Indian  Penal  Code  (for  short  ‘IPC’)  and  sentenced  to

undergo imprisonment for life.   

2. Originally, there were three accused persons, namely, Virendra @ Buddhu,

Ram Asrey @ Tami and Girish Chandra @ Gappu and they were charged

under Section 302 read with Section 34 IPC and Girish Chandra was also

charged under Section 307 IPC.  The Trial Court after recording evidence

and  hearing  arguments  acquitted  all  the  accused  persons  of  the  charges

leveled against them under Section 302 read with Section 34 IPC and Girish

Chandra  from  the  charges  leveled  against  him  under  Section  307  IPC.

Being  aggrieved  by  the  order  of  acquittal  passed  by  the  Trial  Court  an

appeal was filed by the State of U.P. before the Allahabad High Court.  The

said appeal was allowed in part to the extent that acquittal of the accused –

appellant  in the present  appeal  was set  aside and they were sentenced to

undergo imprisonment for life under Section 302 read with Section 34 IPC,

while the acquittal of third accused, namely, Girish Chandra was affirmed

by the same judgment and order of the High Court of Allahabad.  Being

aggrieved by the said order of the High Court the present appeal was filed

by the accused persons, in which notice was issued and an order was also

passed  rejecting  the  prayer  for  bail  but  with  direction  for  expeditious

disposal of the appeal.  Pursuant to the said order, the present appeal was

listed before us for hearing and disposal and we heard the learned counsel

appearing for the parties.  In this appeal, learned counsel appearing for the

parties have taken us through the entire evidence on record in support of

their contentions before us.

3. Before analyzing the submissions made before us by the counsel appearing

for the parties, it will be necessary to set out the factual position leading to

the filing of the present appeal by both these accused persons.

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 On 05.10.1979 at about 4.45 p.m. Smt. Sarla Devi, wife of Rameshwar

Dayal (hereinafter referred to as ‘deceased’) lodged a First Information Report

at  police  station  Shamshabad,  District  Farrukhabad alleging  that  Pyarey Lal

who happened to be her grand father in relation had executed a sale deed of his

landed property in favour of her son Pradeep Kumar but subsequently Het Ram

and Sahdev got a deed of will regarding the same property allegedly executed

by their maternal uncle Pyarey Lal in their favour.  Therefore, in respect of the

same piece of land, litigation was going on between her deceased husband on

one hand and Het Ram and Sahdev on the other hand.  Three months prior to

the occurrence Sahdev was murdered and in connection with the said murder

her son Pradeep Kumar, brothers Jaidev and Rakesh were falsely roped in as

accused and Pradeep was still  in  jail  at  the  time of  murder of  his  deceased

father.  It was also alleged that proceedings under Section 107 and 117 of the

Code  of  Criminal  Procedure,  1973  (for  short  ‘Cr.P.C)  were  also  going  on

between the deceased on one hand and Het Ram on the other hand.  It was

further alleged that Het Ram and his  son Virendra @ Buddhu were nursing

grudge  against  the  deceased.   On  the  fateful  day  i.e.  on  05.10.1979,  early

morning the  deceased, the complainant Sarla Devi, P.W. 1 and their daughter

Km. Guddi, P.W. 2 had gone for taking a holy dip into the river Ganges on the

pious occasion of “Poornamashi”.  Thereafter, at about 10.00 a.m. while they

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were  returning  back  after  seeing  Patavar  in  their  field  through  the  field  of

Raghubar Dayal and reached near mango tree standing in that field, Virendra

alias Buddhu along with his cousins Ram Asrey alias Tami and Girish Chandra

alias Gappu armed with country made pistols emerged from Patavar standing at

the medh of Chhavinath and rushed towards the deceased.  Ram Asrey was

shouting that the deceased should be caught hold of as they had to take revenge

of  the  murder  of  their  maternal  uncle.   Upon hearing  the said shouting  the

deceased tried to  run for his  life but  he could not  escape and Virendra and

Girish caught hold of him under the mango tree and Virendra and Ram Asrey

fired at him with country made pistols causing fatal injuries on him.  On hue

and cry raised by Smt. Sarla Devi and Guddi, Girish fired commanding them

not  to  come  forward  and  all  the  three  accused  ran  away  towards  left.

Sustaining  fatal  injuries  at  his  head  and  eye the deceased  died  on  the  spot

instantaneously.   

Thereafter on reaching of some of the co-villagers near the dead body

Sarla Devi went to the village and got the report scribed by Deep Chand and

then went to the police station Shamshabad situated at a distance of about 7

miles from the village.  She lodged the First Information Report, upon which a

criminal case was registered and investigations of the crime was taken up.  

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During the  course of  investigation  all  the three  accused persons  were

arrested.  Autopsy was conducted on the dead body and post-mortem report

was  obtained.   After  completion  of  the  investigation,  the  police  submitted

charge sheet against the three accused persons.  The trial court framed charges

against all the three accused persons under Section 302 read with Section 34

IPC and against accused Girish also under Section 307 IPC.  The charges were

read over to the accused and were explained to them in Hindi language.  They

pleaded not guilty and expressed their  desire to be tried.  Since the learned

counsel  for  the  accused  admitted  under  Section  294  of  the  Cr.P.C.  the

prosecution records from Ext. Ka-2 to Ext. Ka-18, the prosecution examined no

other person as prosecution witness other than Smt. Sarla Devi the complainant

as PW-1 and Km. Guddi as PW-2, who are stated to be eye-witnesses of the

said  occurrence.   The  learned  trial  court  thereafter  critically  examined  the

depositions and the evidence on record and on appreciation thereof acquitted

all the three accused persons of all the charges leveled against them.    

On appeal being filed, the High Court on re-appreciation of the evidence

and records found that the grounds of acquittal  as given by the learned trial

court were unjustified and for the reasons recorded in the judgment set aside

the order of acquittal passed against Virendra and Ram Asrey.  The High Court,

however, maintained the order of acquittal passed in favour of Girish Chandra.

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Consequently, the present appeal is filed by the two accused persons who were

held to be guilty of the charge under Section 302 read with Section 34 IPC.   

4. Mr.  Salman  Khurshid,  the  learned  senior  counsel  appearing  for  the

appellants submitted that the High Court was not justified in setting aside

the order of acquittal inasmuch as the reasons given by the High Court for

reversing the order of acquittal  are unsustainable.   He submitted that  the

discrepancies between the ocular evidence and the medical evidence are so

vital  that  no Court could convict  the two accused persons and they were

required to be treated similarly as the third accused, namely, Girish Chandra

who  was  acquitted  of  all  the  charges.   Relying  on  the  post-mortem

examination report of the deceased, he submitted that the said report clearly

proves  and establishes  that  there  was  4  oz  of  semi digested  food  in  the

stomach of the deceased at the time when autopsy was conducted, which

clearly belies the prosecution case that the deceased died at about 10.00 a.m.

in the morning inasmuch as PW-1 – Smt. Sarla Devi, wife of the deceased,

had herself  stated that the deceased did not take any food in the morning on

the fateful day and he had taken his meal at about 6-7 p.m. on 04.10.1979.

He further  submitted  that  presence  of  4  oz of  semi-digested  food  in  the

stomach  of  the  deceased  at  the  time  when  autopsy  was  done,  clearly

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pinpoints to the fact that the deceased was murdered at about 10.00 p.m. on

04.10.1979 by some unknown person and in order  to make out  a got up

story it  is now shown that the deceased was murdered in the morning in

presence of his wife and daughter while returning after taking bath on the

occasion of Poornamashi in river Ganges.  He also pointed our attention to

the discrepancy in the statement made by PW-1 – Smt. Sarla Devi and PW-2

Km. Guddi for PW-1 has stated that near the place of occurrence in the field

there  was  bajra  and  jawar  crop  standing  whereas  PW-2 Km.  Guddi  has

stated that at that time there was no crop in her field except pataur standing.

According  to  the  senior  counsel,  the  said  discrepancy  is  very  vital  and

clearly belies the prosecution case and therefore both the accused persons

should be acquitted of all the charges.   

5. Learned  counsel  for  the  State  on  the  other  hand  while  supporting  the

judgment of the high court  stated that  the findings  recorded by the Trial

Court  were  clearly  erroneous  in  law  and  the  High  Court  has  rightly

appreciated the evidence on record while coming to its conclusion.  

6. In  order  to  appreciate  the  contentions  raised,  we  have  read  the  entire

evidence  on  record.   The  two  witnesses,  PW-1 and  PW-2,  are  the  eye-

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witnesses.  The incident had taken place in their presence when they were

coming back after taking a holy dip in the river Ganges.  PW-1 had also

stated in her deposition about the motive for the murder of the deceased as

according to her there was a long animosity between the deceased and the

accused  persons.   About  the  incident  she  has  stated  that  on  the  day  of

Poornamashi at about 10.00 a.m. when she along with her deceased husband

and daughter Km. Guddi was returning after having a holy-dip in the river

Ganges, the deceased expressed his desire that they should have a look of

their crop and then go home and when these persons reached near the field

of Chhabinath, the accused persons emerged from behind the crops.  She

had also stated that  all  the  three persons  were armed with  country made

pistols  and at  that  time Ram Asrey exhorted  others  to  catch  hold  of  the

deceased in order to take revenge of murder of their maternal uncle.  She

also stated that thereupon Ram Asrey, Virendra and Girish Chandra caught

hold of the deceased.  She further stated that first of all Ram Asrey caught

hold of the deceased and then Virendra caught hold of him and then Ram

Asrey and Girish Chandra fired shots with their country made pistols which

hit at the skull of the deceased upon which deceased fell down on the field

and died on the spot.  The accused persons fled away from there towards

west direction to the village.   

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She  also  stated  that  after  the  co-villagers  arrived  at  the  place  of

occurrence she went home and met the brother-in-law of her deceased husband,

namely, Deep Chandra and got the Report of the occurrence written by him.

She thereafter accompanied by her son-in-law Prem Chand went to the police

station Shamshabad where she submitted the said written report Ext. Ka-1 and

lodged the First Information Report Ext. Ka-2 at about 4.30 p.m.  She had of

course stated in her statement that her deceased husband took his last meal at

about 6.00 – 7.00 p.m. on the previous evening and did not take anything in the

morning.   

7. The  prosecution  also  examined Km. Guddi,  PW-2 daughter  of  deceased.

The Trial Court, of course disbelieved the evidence of PW-2, namely, Km.

Guddi, who stated her age to be about 14 or 15 years on the date of incident.

According to the Trial Court, she was not a dependable and reliable witness

as she does not understand the meaning of the expression “oath” and also as

she has no idea about the direction and boundaries of her field.  The High

Court  in  the appeal  however considered her  deposition  and held that  the

Trial Court was not justified in rejecting her testimony totally.  The Trial

Court did not administer oath to her observing that she appeared to be aged

about 12 years and also opined that she did not understand sanctity of oath.

The High Court held that PW-2 might not be in a position to understand the

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significance  of  Shapath  (oath)  but  the  Trial  Court  should  have  satisfied

himself if  she understood the significance of  desirability of  speaking the

truth.

8. The Indian Evidence Act, 1872 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  or  she  has  intellectual  capacity  to  understand

questions  and  give  rational  answers  thereto.   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.  In  Dattu  Ramrao  Sakhare v.  State  of  Maharashtra

[(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5)

“A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence

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Act  provided  that  such  witness  is  able  to  understand  the questions  and  able  to  give  rational  answers  thereof.  The evidence  of  a  child  witness  and  credibility  thereof  would depend  upon  the  circumstances  of  each  case.  The  only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable  one  and  his/her  demeanour  must  be  like  any  other competent witness and there is no likelihood of being tutored.”

Subsequently, in the case of  Ratansinh Dalsukhbhai Nayak v. State of

Gujarat, [(2004)  1  SCC 64]  wherein  one  of  us  (Dr.  Arijit  Pasayat)  was  a

member the bench held that though the decision on the question whether the

child witness has sufficient intelligence primarily rests with the trial Judge who

notices his manners, his apparent possession or lack of intelligence, and the

said  Judge  may resort  to  any  examination  which  will  tend  to  disclose  his

capacity and intelligence as well as his understanding of the obligation of an

oath but the decision of the trial court may, however, be disturbed by the higher

court if from what is preserved in the records, it is clear that his conclusion was

erroneous. The bench further held as under:  (SCC p. 67, para 7)

“This  precaution  is  necessary  because  child  witnesses  are amenable to tutoring and often live in a world of make-believe. Though it  is  an established principle that  child witnesses are dangerous  witnesses  as  they  are  pliable  and  liable  to  be influenced  easily,  shaken  and  moulded,  but  it  is  also  an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

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9. In the present case, a perusal of the statement of PW 2 goes to show that she

had no idea of directions, distance, area etc.  She remained silent to some

questions put to her such as what was the area of her father’s field or whose

fields were situate around the field of her father.  The High Court observed

that it is not expected from a girl of 14 years to answer these questions put

to  her.   Besides  it,  a rustic  girl  of tender age of 14 years is  likely to be

overawed by the Court atmosphere and the piercing cross-examination made

by the defense counsel and out of nervousness she may get confused and

may not be able to answer some questions.  PW2 could not tell the actual

name of Buddu saying that it was slipping from her mind.  The Trial Court

while disbelieving her testimony stated that she could not tell the real name

of Buddhu.  The High Court held that on that ground that PW-2 could not

answer few questions, her evidence could not be rejected if otherwise it was

reliable and trustworthy.  We have been taken through her evidence by the

learned counsel and on perusal of the same we find that the testimony of

PW-1 Sarla Devi stands corroborated by the testimony of PW 2 Guddi on all

material points.  We are of the considered opinion that the prompt answers

from her,  to  the  questions  put  to  her  during  cross-examination,  can  be

accepted even though she was aged about 14 years when the occurrence had

taken place.

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Even otherwise it is not the case of the prosecution that the conviction

has to be based on the sole testimony of PW 2.  In the FIR itself there was a

reference  to  the  fact  that  PW 2  was  also  an  eye witness  to  the incident  in

addition to PW 1, as PW 2 was also accompanying the deceased and PW 1 on

the fateful day.  The testimony of PW 2 is used by the prosecution only to the

extent that the same corroborates the evidence led by the prosecution through

PW 1 and was also in conformity with the medical evidence.  It appears to us

from a reading of her deposition that she had deposed whatever she had seen

and the same corroborates the testimony of PW 1 on all material points.  She

was a rustic village girl aged about 14 years and such a girl cannot always be

expected to have an alert mind so as to be able to answer all questions such as

directions, area, and distance with precision.

10.This  brings  us  to  the  main  contention  of  the  counsel  appearing  for  the

appellants  regarding  the  presence  of  4  oz  of  semi-digested  food  in  the

stomach  of  the  deceased.   Similar  contention  was  also  raised  before  the

High Court and the High Court in its judgment had mentioned that the Trial

Court  observed  that  the  deceased  was  murdered  on  04.10.1979  at  about

10.00 p.m. because the doctor who conducted autopsy on the dead body of

the deceased mentioned in the post mortem report that stomach contained 4

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oz  of  semi-digested  food  and  PW  1  Sarla  Devi  stated  in  her  cross-

examination  that  her  husband  had  not  taken  food  after  last  evening.

Answering  the  said  contention  the  High  Court  observed  that  such

observation made by the Trial Court is wholly erroneous as both the eye-

witnesses  stated  that  the  deceased  was  murdered  while  returning  to  the

village after taking bath in the river Ganges as there was Poornamashi that

day.   Regarding  the  statement  of      PW 1  Sarla  Devi  to  the  fact  that

deceased had not taken anything on that fateful day since morning, it was

held  by the  High  Court  that  the  possibility  cannot  be  ruled  out  that  the

deceased might have taken something after taking bath in the morning and

that Sarla Devi might not have noticed the same.

Moreover,  the  doctor  who  conducted  autopsy  on  the  dead  body  on

06.10.1979  at  4.30  p.m.,  in  the  report  has  mentioned  that  rigor  mortis  had

passed through upper extremities and was present in lower extremities.  It is

mentioned  at  page  125  of  Modi’s  Medical  Jurisprudence  and  Toxicology,

Edition 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well

developed from head to  foot  in  about  12 hours,  is  maintained for  about  12

hours and passes off in about 12 hours.  In the instant case rigor mortis was

present  in lower extremities  at  the time autopsy was conducted on the dead

body after 30 hours.  As according to ocular testimony deceased was murdered

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on 05.10.1979 at about 10.00 a.m. and the doctor conducted autopsy on the

dead body on the next day at about 4.30 p.m. after 30 hours of death but rigor

mortis was found present in lower extremities.  Had he died on 04.10.1979 at

about 10.00 p.m. or so rigor mortis would have passed off from the dead body

completely  at  the  time of  autopsy.   Thus  the  ocular  testimony that  he  was

murdered  on  05.10.1979  at  about  10.00  a.m.  stands  corroborated  from the

medical  evidence  pin-pointing  that  rigor  mortis  was  present  in  lower

extremities at the time when the autopsy was conducted on the dead body after

30 hours.     

11.We find no reason to discredit the evidence of the two eye witnesses, whose

presence could not have been doubted at the place of occurrence of death of

the deceased on the sole ground that PW 1 in her cross examination has

mentioned that her husband had not taken food after the previous  evening.

They were natural witnesses who were present at the time of occurrence and

the possibility that the deceased might have taken something after taking

bath  in  the  morning  which  Sarla  Devi  might  not  have  noticed.   Such  a

situation as held by the High Court cannot be ruled out.  In a similar case of

Sarbul Singh and Others  v.  State of Punjab, [1993 Supp (3) SCC 678],

where some semi-digested food was found in the stomach of the deceased

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therein although there was evidence that they had taken food immediately

before the occurrence, this Court held as under:

“6. We see absolutely no reason to discredit the evidence of the three eyewitnesses whose presence cannot be doubted.   Now coming to the semi-digested food, it  cannot be ruled out that the  old  lady might  not  have  eaten  anything  earlier.   Merely because the illiterate witnesses stated that they took their meals immediately  before  the  occurrence  cannot  by  itself  be  a circumstance to discredit their evidence on the basis of medical evidence regarding the presence of semi-digested food.  It  is also clear from the textbooks on medical jurisprudence that the stomach contents  cannot  be determined with precision  at the time of death.  As rightly held by the High Court, the trial court grossly  erred  in  basing  its  verdict  mainly  on  the  nebulous medical observation.”

12.In this view of the matter, we are unable to accept the contentions of the

learned  senior  counsel  appearing  for  the  appellants  that  the  appellants

should  be  acquitted  for  the  reasons  stated  hereinabove.   We  reject  the

contentions because of the reasons set out hereinabove.  Reliance was also

placed by the learned senior counsel for the appellants to the fact that there

was discrepancy between the evidence of PW-1 – Smt. Sarla Devi and PW-2

Km.  Guddi  to  the  extent  that  PW-1  has  stated  that  near  the  place  of

occurrence in the field there was bajra and jwar crop standing whereas PW-

2 Km. Guddi  has  stated that  at  that  time there  was  no  crop in  the  field

except pataur standing.  The said discrepancy is of no significance at all.

Both  the  witnesses  were  found  to  be  natural  eye-witnesses,  who  were

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present at the place of occurrence on the fateful day, they were wife and

daughter  of  the deceased and they would rope in only the culprits  to  be

punished and will  not  rope in someone who is not  at  all  involved in the

incident.  The medical evidence available on record fully corroborates the

ocular evidence and proves and establishes the guilt of the accused persons.

There could be no doubt in the prosecution case regarding the manner in

which the incident happened.  The case of prosecution by recovery of blood,

pellets,  tiklis  and  empty  cartridge  from  the  place  of  occurrence  stands

proved and therefore there could be no doubt with regard to the time and

place of occurrence and also regarding the weapons used in the assault.  We,

therefore, find no reason to take a different view than what was taken by the

High Court.  

13.The appeal is devoid of merit and is dismissed.  

…………………………..J.                                                                             (Dr. Arijit Pasayat)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi, October 17, 2008

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