CRLA 1265 of 2006                                                                                                                                                     REPORTABLE 1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2006

BABLI @ RAJWANTI ..... APPELLANT

VERSUS

STATE OF HARYANA ..... RESPONDENT

O R D E R

1. Six persons, Rohtas, his wife Phoolwati, Babli @  

Rajwanti, Sadhu Ram, Pada @ Jai Singh and Har Krishan  

were  tried  for  offences  punishable  under  Section  

302/149  IPC  for  having  committed  the  murders  of  Om  

Prakash, his wife Satwanti, and their four children,  

Rekha, Ajit, Dharmender and Rakesh on the late evening  

of  20th June,  1996  in  village  Jhanswa  Kalan,  Police  

Station Sahlawas, District Rohtak, Haryana.

2.1 The trial court in its judgment dated 10th April,  

1997,  Sessions Judge,  Rohtak, convicted Rohtas, Sadhu  

Ram, Pada @ Jai Singh and Har Krishan for the aforesaid  

offences and sentenced them to death whereas the other  

accused were sentenced to imprisonment for life.  The

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accused thereupon filed an appeal in the High Court of  

Punjab  and  Haryana  whereas  the  matter  was  referred  

under Section 366 of the Code of Criminal Procedure by  

the Sessions Judge for the confirmation of the death  

sentence.  The High Court vide the impugned judgment  

dismissed  the  appeal  but  also  declined  the  murder  

reference thereby reducing the sentence on Sadhu Ram,  

Pada and Har Krishan to life as well.  The present  

appeal  has  been  filed  at  the  instance  of  Babli  @  

Rajwanti alone as it appears that the other accused  

have accepted their conviction and sentence.   

2.2 The case was initiated on the statement of P.W.  

3 - Manju, the only surviving child  of Om Prakash and  

Satwanti  and the only one who witnessed the incident  

from outside the house as she was returning home after  

watching TV in the house of Ram Chander Brahman who  

lived  just  across  the  road.   She,  accompanied  by  

Pradhan Suraj Bhan, went to police Station Sahlawas and  

lodged a report at about 11:45p.m. in which the names  

of the accused, the weapons that they were carrying and  

the  injuries  caused  by  them  were  given.   On  the  

completion  of  the  investigation,  the  accused  were  

brought  to  trial  and  convicted  and  sentenced  as  

mentioned above.  The trial court as well as the High  

Court have, perforce, relied almost exclusively on the

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statement of P.W. 3 – Manju.   

3. Mr. K.B. Sinha, the learned senior counsel for  

the appellant cognizant of the fact that the entire  

matter would hinge on Manju's statement has sought to  

challenge her credibility.  He has first pointed out  

that the evidence of a child witness was always beset  

with problems as a child would often be swayed by his  

or her imagination and was also liable to tutoring and  

it was, therefore, incumbent on the court to be fully  

convinced  about  the  reliability  of  such  a  witness  

before basing its decision only on this evidence.  He  

has also submitted that there was no apparent motive  

for the appellant to have joined the others in the  

assault as she could not have been a beneficiary in the  

property  dispute between the accused and the deceased  

groups who were very closely related to each other.  He  

has finally submitted that in any case there was no  

evidence to show that the appellant shared the common  

object to commit murder with that of her co-accused as  

it was not clear as to the injuries that she had been  

caused to the deceased.

4. The learned counsel for the State has, however,  

supported the judgment of the trial court.  

5. It is true, as contended by Mr. Sinha, that the

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entire case would hinge on Manju's evidence as she is  

the only survivor of Om Prakash's family.  In the FIR,  

she has given full details as to what she had seen from  

just  outside  her  house  as  she  was  returning,  after  

having gone to watch the TV at a neighbour's place.  

When  Manju  was  brought  into  the  witness  box,  the  

Sessions Judge put several questions to her to test her  

intelligence and her capacity to understand as to what  

she  was  talking  about  and  after  he  had  satisfied  

himself about her suitability as a witness that she was  

questioned by the parties.  We find that the answers  

given by Manju were spontaneous, and natural, given in  

the vernacular of the area which greatly enhances her  

value as a good witness.  Manju in the course of her  

examination in chief supported the facts in the FIR and  

when  cross  examined  she  met  the   cross  examination  

forthrightly  and  with  confidence.   We  see  from  her  

cross examination that except for one or two irrelevant  

answers which were not in any way material to the case,  

no  fact  could  be  elicited  by  the  defence  from  her  

statement.  It is true, as contended by Mr. Sinha, that  

the possibility of tutoring of a child is a possibility  

but it must also be accepted that the tutoring would  

ordinarily take place for the purposes of the questions  

to be asked in the examination in chief and it would be  

difficult to tutor a child with respect to the question

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which might be asked in the cross examination.    

6. Mr. Sinha has, however, cited Abbas Ali Shah v.  

Emperor AIR 1933 Lahore 667 and  Nirmal Kaur v.  State  

AIR 1992 SC 1131 in support of his submission with  

regard to the evaluation of the evidence of a child  

witness.  These judgments merely reiterate the well  

settled position that as a child witness is prone to  

tutoring and a fanciful imagination the Court must be  

satisfied  about  the  capacity  of  the  child  before  

relying on his or her evidence.  In any case, it is for  

the trial court who has seen the demeanour of the child  

to ascertain as to whether the child was a reliable  

witness.  

7. We have also examined Mr. Sinha's argument with  

regard to the lack of motive insofar as the appellant  

herein was concerned.  We see from the geneaology  that  

the appellant was the daughter of Hawa Singh and the  

sister of Sadhu Ram who was one of the accused and  

whose conviction has become final.  It is also true  

that  all  the  accused  were  the  first  cousins  of  Om  

Prakash and thus very closely related to each other.  

Undoubtedly appellant who is a married lady may not be  

a  beneficiary out of the property dispute which had  

led to the murders but the fact that she had joined the  

others is proved from the statement of P.W. 3 – Manju,

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more particularly, as she had caused specific injuries  

to some of the deceased.  The factum of traditional  

family  loyalties  within  a  rustic  family  with  an  

agricultural background cannot be ruled out.

8.   Mr. Sinha has finally submitted that a case under  

Section 302 of the IPC was not made out against the  

appellant  and  at  the  worst  it  could  be  a  case  of  

culpable  homicide  not  amounting  to  murder.   We  are  

unable to accept this contention.  We see from the  

record that the appellant had caused as many as 6 or 7  

injuries most of them on the head of the deceased with  

a rapri that she was carrying and in any case she had  

joined the other co-accused who between them had caused  

as  many  as  50  injuries  to  the  six  deceased  in  a  

particularly vicious and brutal manner.   

9. For the reasons given above, we are not inclined  

to  interfere  in  this  matter.   The  appeal  stands  

dismissed.  

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [A.K. PATNAIK]

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NEW DELHI      JANUARY 28, 2010.