Gayaram Kaushik Vs State of Chhattisgarh

Gayaram Kaushik, S/o Late Ramswarup, aged about 26 years, R/o Village Dhatura, Thana Kusumunda, Chowki Hardibazar, District Korba (C.G.) ... Appellant(s)

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Versus

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State of Chhattisgarh, through: Station House Officer, Police Station Kusumunda, District Korba (C.G.)

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... Respondent(s)

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For Appellant	:-	Mr. V.R. Tiwari, Sr. Advocate,
		along with Mr. N.K. Malviya
		and Mr. Atul K. Kesharwani,
		Advocates.
For Respondent-State	:-	Mr. Ashish Shukla, Addl. Advocate General.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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C A V Judgment

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Sanjay K. Agrawal, J.

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1. Assail in the present Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for

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short ‘CrPC’) is to the Judgment dated 29.1.2018 passed by learned Additional Sessions Judge, Katghora, District Korba (Trial Court) in Sessions Case No.5/2016.

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2. By the impugned judgment, the sole appellant herein has been convicted for offence under Section 302 (three counts) of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder to suffer Rigorous Imprisonment for Life (three counts) and to pay fine of Rs.2000/- on each count and in default of payment of fine to suffer additional Rigorous Imprisonment for One year on each count, for committing murder of his wife Ambika Kaushik (D-1), aged about 23 years, and two minors sons Yuvraj Kaushik (D-2), aged about 5 years, and Harsh Kaushik (D-3), aged about 2 years. He has further been convicted for offence under Section 201 of

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IPC and sentenced thereunder to suffer Rigorous Imprisonment for Three years and to pay fine of Rs.1000/- and in default of payment of fine to suffer additional Rigorous Imprisonment for Three months, for concealing the evidence of murder of the abovementioned three deceased persons. Both the sentences have been directed to run concurrently.

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Prosecution’s case, in brief:-

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3. In the intervening night of 13.10.2015 and 14.10.2015, the appellant has committed murder of his wife D-1 Ambika Kaushik and two minor sons D-2 Yuvraj Kaushik and Harsh Kaushik. According to the prosecution, in the night, the appellant asked favour of his wife D-1 Ambika Kaushik to make physical relationship with her, to which she denied as the appellant was in a drunken state. On account of the said issue, a quarrel took place between the appellant and his wife, Ambika Kaushik (D-1), hearing which their two minor sons, Yuvraj Kaushik (D-2) and Harsh Kaushik (D-3) both wake up and started crying. In order to stop Yuvraj Kaushik from crying, the appellant gagged his mouth and strangled his neck and also slammed him down which made him unconscious and ultimately he died. Seeing that, when Ambika Kaushik (D-1) and Harsh Kaushik (D-3) started crying, the appellant assaulted them with an iron pipe and also slammed Harsh Kaushik (D-3) against the wall. There was bleeding started from the heads of both Ambika Kaushik (D-1) and Harsh Kaushik (D-3) and they stopped breathing and died. Thereafter, the appellant pulled the dead-bodies of three deceased persons (D-1,

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D-2 & D-3) to the pit made for putting cow-dung in the garden of his house and he further dig the said pit with the use of a pick-axe and hid the dead bodies of the three deceased persons in the pit covering them with the cow-dung. After that, the appellant put on new clothes and went to K.J.S. Coal Washery, Dhatura for doing his duties.

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4. PW-1 Ku. Varsha Maravi, who had gone to sleep in the house of the appellant at the fateful night and was sleeping in that night along with the deceased persons in a room of the house, had seen the appellant assaulting the deceased persons (D-1, D-2 & D-3) with an iron pipe. She had not reacted out of fear and seen the entire incident from the room of the house and in the morning she went to her house.

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5. In the morning around 6:00 a.m. on 14.10.2015, the appellant came back from his duties and informed the neighbours as well as PW-4 Laxmichand Kashyap (brother of D-1 Ambika Kaushik) about the deceased persons not found present by him in his house. PW-4 Laxmichand Kashyap reached the house of the appellant immediately and found bloodstains scattered all over the house and on the bed in the house and also saw a bloodstained iron pipe lying there He also noticed

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that the cow-dung pit in the house garden of the appellant was dug up. On his information, Rojnamcha Sanha No.9/2015 was registered at Police Chowki Hardibazar and the matter was informed to the Police Station Kusumunda.

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6. PW-21 Smt. Sadhna Singh, Inspector of Police Station Kusumunda, reached the spot and on the suspicion of the dead-bodies of deceased persons hidden in the cowdung pit the same was excavated vide Ex. P-30 in presence of S.D.M. Virendra Lakda and from the said cow-dung pit the dead-bodies of three deceased persons (D-1, D-2 & D-3) were recovered. One pocket diary was also seized from the said cow-dung pit vide Ex. P-24. Merg intimations in respect of three deceased persons were recorded vide Exbts. P-8, P-9 & P-10 and Dehati Nalishi was registered against unknown vide Ex. P-11. Crime Details Form (Ex. P-22) was prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh. Bloodstained and plain cow-dungs were seized from spot vide Ex. P-26. The pick-axe which was used to dig up the cow-dung pit was also seized from the spot vide Ex. P-27. Seizure of iron rod was made from the house vide Ex. P-25. Bloodstained mattress cover of the bed was

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seized from the house vide Ex. P-28. Similarly,

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bloodstained samples of the distemper on which blood was found scattered on the wall of the house as well as the plain samples of distemper and bloodstained piece of the floor were seized vide Ex. P-24. FIR was registered vide Ex. P-71 at the instance of PW-3 Laxmichand Kashyap. Inquest Panchnamas were prepared vide Exbts. P-15, P-16 & P-17. Post-mortem of three deceased persons i.e. D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik was conducted vide Exbts. P-18, P-19 & P-20 by PW-16 Dr. A.N. Kanwar who found the death of all the three deceased persons to be homicidal in nature. Memorandum statement of the appellant was recorded vide Ex. P-31 pursuant to which, a sari, vest and jeans pant all smeared with bloodlike stains were seized vide Ex. P-21. Appellant was arrested vide Ex. P-6. Nazri Naksha was prepared by the Patwari V.R. Kaushik vide Ex. P-32. During the investigation, statements of the witnesses were recorded under Section 161 of CrPC. The statement of the child witness, PW-1 Ku. Varsha Maravi, was recorded under Section 161 of CrPC vide Ex. P-1. Her statement under Section 164 of CrPC was recorded vide Ex. P-2 and the order-sheets for recording of her statement are Ex. P-3.

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7. After completion of the entire investigation, the appellant was charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court,

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was committed to the court of Sessions for trial. After committal, the appellant appeared before the Trial Court where charges were framed against him for offences under Sections 302 and 201 of IPC to which he denied and entreated for trial.

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8. During the course of trial, in order to prove its case, the prosecution examined as many as 22 witnesses as PW-1 to PW-22 and exhibited 71 documents vide Exhibits P-1 to P-71. After closure of the prosecution evidence, s tatement of the accused/appellant was recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the evidence produced by the prosecution, pleaded innocence and false implication.

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9. On conclusion of trial, learned Trial Court, by the impugned judgment dated 29.1.2018, after appreciating the oral and documentary evidence available on record, held the appellant guilty of the offences punishable under Sections 302 and 201 of IPC for committing murder of his wife D-1 Ambika Kaushik and two minor sons D-2 Yuvraj Kaushik and D-3 Harsh Kaushik and

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concealing the evidence of their murder, and accordingly convicted and sentenced him as mentioned above in the second paragraph of this judgment, which led to filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Trial Court.

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:Submissions on behalf of the appellant

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10. Mr. V.R. Tiwari, learned Senior Counsel appearing for the Appellant, assailing the conviction of the appellant recorded by the learned Trial Court to be unjustified and praying for setting aside the impugned judgment, submits as under:-

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1. PW-1 Ku. Varsha Maravi who is a child witness aged about 8 years, her testimony is not reliable and trustworthy as she is a tutored witness and has not seen the incident. Her statement has been recorded in violation of proviso to sub-Section (1) of Section 4 of the Oaths Act, 1969 as she was below 12 years of age and the learned Trial Court was not satisfied that she understood the duty of speaking the truth and as such her testimony is liable to be rejected in light of the decision of the Supreme Court in the matter of Pradeep v. State of

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Haryana1 and Golla Yelegu Govindu v. State of

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Andhra Pradesh2 .

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1. The statement of PW-1 Ku. Varsha Maravi recorded under Sections 161 of CrPC (Ex. P-1) as well as under Section 164 of CrPC (Ex. P-2) are in variance of her statement recorded before the Trial Court, as to from which place she has seen the appellant assaulting the deceased persons.

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The Crime Details Form (Ex. P-22) prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh and the Nazri Naksha (Ex. P-32) prepared by the Patwari V.R. Kaushik also nowhere depict as to from which place PW-1 Ku. Varsha Maravi has seen the incident. Thus, relying upon the decision of the Supreme Court rendered in the matters of 3 v. Singhara Singh State of Haryana and Another and Pratap Singh and Another v. State of Madhya Pradesh4 , it cannot be said that she has seen the incident in absence of her position shown in Exbts. P-22 & P-32, the two site plans, and even the Patwari, who has prepared Ex. P-32, has not been examined. As such, the testimony of PW-1 Ku.

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1 2023 SCC Online SC 777

2 (2018) 16 SCC 769

3 (2003) 12 SCC 758

4 (2005) 13 SCC 624

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Varsha Maravi is not reliable and trustworthy and deserves to be rejected outrightly.

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1. Appellant has successfully been able to establish the plea of alibi as is evidently clear from the statements of PW-14 Horilal Rathore, PW-15 Ravilal Jagda and PW-18 Radhashyam Sahu who have clearly stated that the appellant was on his duty in K.J.S. Coal Washery and was available in the said plant the whole night. As such, the plea of alibi also stands established.

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Submissions on behalf of the State:-

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11. Mr. Ashish Shukla, learned Additional Advocate General appearing on behalf of the State, countering the submissions made on behalf of the appellant and justifying the finding of conviction recorded by the learned Trial Court, submits as follows:-

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1. The testimony of a child witness, who in the instant case is PW-1 Ku. Varsha Maravi, could not be rejected only on the ground of she being of a tender age, as the child witness has the capacity to recapitulate the gruesome incident witnessed by her/him in the memory. As regards the violation to proviso to sub-Section (1) of Section 4 of the Oaths

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Act, though satisfaction as required by the said proviso has not been recorded, but that itself would not make the statement of the child witness (PW-1) liable to be rejected outrightly. The Court must scrutinize the evidence of a child witness with great care and caution. He relies upon the decisions of the Supreme Court rendered in the matters of Surayanarayana v. State of Karnataka 5 and State of Uttar Pradesh v. Krishna Master & Anr. 6 .

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1. The statement of PW-1 Ku. Varsha Maravi that she

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has seen the incident from the room of the house has not been controverted and there is no evidence of tutoring her and there is not even single suggestion that has been put to her of she being tutored by the relatives of the deceased. So far as her statement recorded under Sections 161 and 164 of CrPC being in variation of her statement recorded before the Trial Court is concerned, the said statements have not been put to her in accordance with law as held in Karan Singh and

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Others v. State of Madhya Pradesh 7 .

5 (2001) 9 SCC 129

6 (2010) 12 SCC 324

7 (2003) 12 SCC 587

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The burden of establishing the plea of alibi lies upon the accused/appellant and failure to prove the said plea and/or giving false evidence itself may not be sufficient to arrive at a verdict of guilt, it may be an additional circumstance. In this regard, he would rely upon the decisions of the Supreme Court rendered in the matters of S.K. Sattar v . State of Maharashtra8 , Binay Kumar Singh v . State of Bihar9 , Vijay Pal v . State (Government of NCT Delhi)10 and Subramanyam v . State of Tamil Nadu11 .

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12. We have heard learned counsel for parties, considered their rival submissions and also perused the record of the case with utmost care and circumspection.

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Homicidal death of D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik

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13. As regards the primary question as to whether the death

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of D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik was homicidal, learned Trial Court has found established the nature of their death to be homicidal relying upon the statement of PW-16 Dr. A.N. Kanwar who has conducted post-mortem examinations

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8 (2010) 8 SCC 430

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9 (1997) 1 SCC 283

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10 (2015) 4 SCC 749

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11 (2009) 14 SCC 415

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of D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik and also proved their post-mortem reports. Ex. P-18 is the post-mortem report of D-1 Ambika Kaushik, in which her cause of death has been opined to be Coma due to head injuries and the nature of her death has been opined to be homicidal. Postmortem report of D-2 Yuvraj Kaushik is Ex. P-19 in which his cause of death has been opined to be Coma and Asphyxia due to head injuries and throttling and his nature of death has been opined to be homicidal. Similarly, in Ex. P-20, which is post-mortem report of D-3 Harsh Kaushik, his cause of death has also been opined to be Coma due to head injuries and the nature of his death to be homicidal. As such, the said Medical Officer after examining the injuries found on the body of D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik has determined the nature of their death to be homicidal. Thus, the finding recorded by learned Trial Court in respect of death of three deceased persons (D-1, D-2 & D-3) to be homicidal in nature, in our considered opinion, is correct finding of fact based on medical evidence and other evidence available on record and it is neither perverse nor contrary to record. We,

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therefore, are in agreement with the said finding of learned Trial Court.

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Testimony of the child witness qua violation of proviso to sub-Section (1) of Section 4 of the Oaths Act and Section 118 of the Evidence Act

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14. Under Section 118 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short), a child witness is competent to depose unless the Court considers that she/he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. As regards the administration of oath to a child witness, Section 4 of the Oaths Act is relevant, which states as under:-

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“4. Oaths or affirmations to be made by witnesses, interpreters and jurors .—(1) Oaths or affirmations shall be made by the following persons, namely:—

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(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;

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(b) interpreters of questions put to, and evidence given by, witnesses; and

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(c) jurors:

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Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not

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understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

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(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ”

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15. In this regard, their Lordships of the Supreme Court in the matter of Pradeep (supra), in paragraphs 8, 9 & 10, in respect of proviso to sub-Section (1) of Section 4 of Oaths Act and Section 118 of the Evidence Act, have held as follows:-

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“8. Under the proviso to sub-Section (1) of Section 4, it is laid down that in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness. In this case, in the deposition of PW-1 Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence. Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.

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9. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily

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susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.

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10. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. ”

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16. It would also be appropriate to notice herein the provisions contained in Section 118 of the Evidence Act which states as under:-

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“118. 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. ”

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17. Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this section, all persons are competent to testify, unless they are, in the opinion of the Court, (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (I) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the

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presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide

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whether an infant is or is not disqualified to be a witness by reason of understanding or lack of

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understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in positive, the Court will

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not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth.

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18. In the matter of Panchhi v. State of UP 12 , the Supreme

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Court has held as under:-

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12 (1998) 7 SCC 177

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“ .....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. ”

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19. With regard to the testimony of child witness the v. Supreme Court in State of Karnataka Shantappa Madivalappa Galapuji and Others13 had noticed the case law and held as under:-

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“ 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 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. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129 }. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p.343, para 5):-

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13 (2009) 12 SCC 731

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“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 Act provided that such witness is able to understand the questions and able to given 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.” ”

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20. The position of law relating to the evidence of a child witness has been dealt with also by the Supreme Court

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in Nivrutti Pandurang Kokate and others V. State of Maharashtra14 and Golla Yelugu Govindu v. State of Andhra Pradesh15 . In the case of State of U.P. Vs. Krishna Master & Others16 , the Supreme Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.

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15 2008(4) SCALE 569

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16 (2010) 47 OCR (SC) 263

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14 2008 (12) SCC 565

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21. In the instant case, though learned Trial Court did not take pain to follow the proviso to sub-Section (1) of Section 4 of the Oaths Act with reference to Section 118 of the Evidence Act and did not record an opinion that the child witness (PW-1 Ku. Varsha Maravi) is able to understand the questions put to her and that she is able to give rational answers to the questions put to her, yet considering the answers given by her and recorded by the Trial Court even in the cross-examination, we are of the considered opinion that it is not a case where in non-compliance of the proviso to sub-Section (1) of Section 4 of the Oaths Act, the version of the said child witness deserves to be outrightly rejected and hence this plea is not sustainable and is hereby rejected.

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Variance in the statements of PW-1 Ku. Varsha Maravi qua her statement recorded under Sections 161 and 164 of CrPC

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5. The statement of PW-1 Ku. Varsha Maravi recorded by the Investigating Officer (PW-21) is Ex. P-1 and her statement recorded under Section 164 of CrPC by the Judicial Magistrate First Class, Katghora, District Korba on 20.10.2015 has been marked as Ex. P-2 by the prosecution by showing her signature at “v” to “v” part. The order-sheets in respect of recording of her evidence have been marked as Ex. P-3. However, so far as the

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statement of PW-1 Ku. Varsha Maravi recorded under Section 164 CrPC is concerned, no cross-examination has been made on behalf of the appellant controverting her statements recorded under Section 164 of CrPC or for that matter under Section 161 of CrPC. Since in the instant case on behalf of the defence nothing has been put to PW-1 Ku. Varsha Maravi with regard to her previous statements recorded under Sections 161 and 164 of CrPC while cross-examining her, the said plea of the appellant deserves to be and is hereby rejected.

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22. In this regard, the decision of the Supreme Court rendered in the matter of Karan Singh (supra) would be profitable to notice wherein it has been held by their Lordships that when a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement, it does not amount to any admission, and observed in paragraph-5 as under:-

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“5. When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement, it does not amount to any admission and if it is proved that he had given such a statement, the attention of the witness must be drawn to that statement. Section 145 of the Evidence Act is clear on this aspect. The object is to give the

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witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. In the instant case, the Exh. D-4 statement as such was not put to the witness nor the witness was given an opportunity to explain it. Therefore, D-4 statement, even if it is assumed to be a statement of PW-1 Hari Singh, that is of no assistance to the appellants to prove their case of private defence.

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Crime Details Form (Ex. P-22) and Nazri Naksha (Ex. P-32)

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6. It has been contended that on behalf of the appellant that in the Crime Details Form (Ex. P-22) prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh, it is not shown as to from which place PW-1 Ku. Varsha Maravi has seen the appellant assaulting the three deceased persons (D-1, D-2 & D-3) and therefore in light of the decisions of the Supreme Court rendered in the

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matters of Singhara Singh (supra) and Pratap Singh

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(supra), it cannot be held that the appellant has caused death of his wife and two minor sons (D-1, D-2 & D-3). However, with regard to the Crime Details Form (Ex. P-22), no question has been asked from the Investigating Officer, PW-21 Smt. Sadhna Singh that in Ex. P-22 it is not shown as to from which place PW-1 Ku. Varsha Maravi has seen the appellant assaulting the deceased persons. The defence ought to have laid

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foundation for such a plea. No plea as such has been taken as is apparent from the fact that no question with regard to the Crime Details Form (Ex. P-22) has been put to the Investigating Officer, PW-21 Smt. Sadhna Singh, as to from which place shown in Ex. P-22, PW-1 Ku. Varsha Maravi has seen the appellant assaulting the deceased persons. The Patwari who has prepared the Nazri Naksha (Ex. P-32) has not been examined. As such, the said plea raised on behalf of the appellant is also rejected.

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Plea of alibi

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7. In this regard, it is the contention of the appellant that from the statements of PW-14 Horilal Rathore, PW-15 Ravilal Jagda and PW-18 Radhashyam Sahu, it is clear that appellant was on duty in K.J.S. Coal Washery the whole night when the incident has occurred and as such the plea of alibi is established.

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8. PW-14 Horilal Rathore has stated in his examination-inchief that and he and the appellant had reached the K.J.S. Coal Washery, Dhatura at 10:00 in the night of the incident and in that night no work or activity was being carried out in the plant. He has further stated that the appellant had gone to the Shift In-charge to mark

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his attendance and the appellant was along with him

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from 10:00 pm to 10:30 pm. At this stage, he was declared hostile and leading questions were permitted to be asked from him. In his cross-examination, he has admitted that he had seen the appellant thereafter at 6:00 am in the plant.

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9. PW-15 Ravilal Jangde was also declared hostile and leading questions were permitted to ask from him wherein he himself has admitted that the appellant had met him at 1:30 pm in the plant in the night when the incident has occurred and that he cannot tell as to where the appellant was before 1:30 pm in that night.

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10. PW-18 Radheshyam Sahu is the Shift In-charge in the said K.J.S. plant. He has stated that he had marked the entry at 10:05 pm in the attendance-card allotted to the appellant and thereafter had also seen the appellant standing in the plant along with some co-workers. In his cross-examination, he has stated that after completion of duty hours at 6:00am also he had marked the departure of the appellant. He has further stated no worker is permitted to go out once he enters into the plant till his duty is over. He has admitted that on 13.10.2015 the appellant had not asked for his permission to go outside the plant.

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11. Thus, from the statement of PW-14 Horilal Rathore it is quite clear that though the appellant was along with him from 10:00pm to 10:30pm in the plant but thereafter he had seen the appellant at 6:00am in the plant and from his statement it does not reflect that except for the aforesaid time period he had seen the appellant at any other time during the duty hours. Similarly, from the testimony of PW-15 Ravilal Jangde also it is established that the appellant had met with him at 1:30 pm in the plant and before that time he did not know where the appellant was. Thus, from his statement also it is clearly reflected that that he did not know the whereabouts of the appellant before or after 1:30pm in the said night. Likewise, though PW-18 Radheshyam Sahu, the Shift In-charge, has stated that he had marked the attendance of the appellant of his entry at 10:05 pm and departure at 6:00am and the appellant had not taken permission from him to go outside the plant in the night of the incident, but from his statement also it does not reflect that he had seen the appellant in the plant at any time during the duty hours after 10:05pm when he had marked his entry till 6:00 am when his departure was marked by him. As per the statement of PW-15 Ravilal Jangde, he and the

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appellant are the residents of the same village and the K.J.S. Coal Washery is situated at a distance of around 1.5 kilometers from their village.

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12. Taking into consideration the statements of PW-14 Horilal Rathore, PW-15 Ravilal Jangde and PW-18 Radheshyam Sahu and also taking note of the short distance between the village of the appellant and factory where he was allegedly working in the night when the incident has occurred, the plea of alibi is vacillating plea which has not been proved to hold that the appellant was not present in his house in the night when the incident has occurred. The burden to prove the plea of alibi was upon the accused/appellant who has taken the said plea, which he has failed to discharge.

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13. In this regard, the Supreme Court in the matter of S.K.

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Sattar (supra) has held in paragraph-35 which states as under:-

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“35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present

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29/ 37

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(Cr.A. No. 485 of 2019)

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case. We may also notice here at this stage the proposition of law laid down in Gurpreet Singh v. State of Haryana [(2002) 8 SCC 18 : 2003 SCC (Cri) 186] as follows: (SCC p. 27, para 20)

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“ 20 . … This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact.” ”

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14. Similarly, in the matter of Binay Kumar Singh (supra), their Lordships of the Supreme Court have in paragraphs 22 & 23 held as follows:-

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22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration ( a ) given under the provision is worth reproducing in this context:

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“The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant.”

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23. The Latin word alibi means “elsewhere” and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the

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(Cr.A. No. 485 of 2019)

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mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] ; State of Maharashtra v. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63]. ”

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15. In the matter of Vijay Pal (supra), their Lordships of the

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Supreme Court have held that the burden of establishing the plea of alibi lay upon the accused, and observed in paragraph 25 as under:-

¶180

“25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive

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(Cr.A. No. 485 of 2019)

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evidence after onus as regards presence on the spot is established by the prosecution. In this context, we may profitably reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar [(1997) 1 SCC 283 : 1997 SCC (Cri) 333] : (SCC p. 293, paras 22-23)

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“ 22 . We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration ( a ) given under the provision is worth reproducing in this context:

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‘( a ) The question is whether A committed a crime at Calcutta on a certain day. The fact that, on that date, A was at Lahore is relevant.’

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23 . The Latin word alibi means ‘elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established

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(Cr.A. No. 485 of 2019)

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satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt . For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.” ”

¶190

16. Their Lordships of the Supreme Court in the matter of Subramanyam (supra) have held that failure to prove the plea of alibi and/or giving false evidence itself may not be sufficient to arrive at a verdict of guilt, it may be an additional circumstance, and observed in paragraph34 as under:-

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“34. There are two aspects of the matter. One is that the reasoning of the High Court that he did not have any land whatsoever and, therefore, he must be presumed to have been in his house only appears to be wholly incorrect. But even assuming that he did not have any land and he in fact went to PW 3 for the purpose of taking his wife to hospital may not by itself be a ground for holding him guilty. Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt. ”

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(Cr.A. No. 485 of 2019)

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17. In addition to the aforesaid, pocket diary, pick-axe, bloodstained cow-dungs and bloodstained pieces of distemper of the wall and floor of the house, iron pipe, bloodstained mattress covers were seized from the spot during the investigation by PW-21 Smt. Sadhna Singh. Subsequently, pursuant to the memorandum statement of the appellant recorded vide Ex. P-31, a bloodstained sari which was used by the appellant to wipe out the blood on the floor and also the bloodstained vest and jeans pant which he was wearing at the time of incident were seized and which was duly supported by PW-13 Budhwar Singh, Sarpanch of the village and PW-12 Santosh Kumar Karpe. As per the statement of the Investigating Officer, PW-21 Smt. Sadhna Singh, she had sent the seized articles to the FSL for chemical examination, but the FSL report has not been received from the office of the FSL. However, only for the reason that the FSL report which is a corroborative piece of evidence has not been produced on record, the entire case of the prosecution cannot be doubted, particularly when the prosecution has been able to prove its case beyond reasonable doubt on the basis of other oral and documentary piece available on record to establish the link of the appellant in committing the offence of murder

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of his wife D-1 Ambika Kaushik and two minor and innocent sons D-2 Yuvraj Kaushik and D-3 Harsh Kaushik.

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Conclusion:

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18. In view of the aforesaid deliberation and discussion made herein-above, the facts which are quite apparent are that the death of three deceased persons i.e. D-1 Ambika Kaushik, D-2 Yuvraj Kaushik and D-3 Harsh Kaushik was homicidal in nature and which is established beyond doubt by the evidence of Medical Officer, PW-16 A.N. Kanwar. So far as the testimony of the child witness PW-1 Ku. Varsha Maravi that she has seen the appellant assaulting the three deceased persons the same is also found to be reliable and trustworthy. Merely because the proviso to sub-Section (1) of Section 4 of the Oaths Act with reference to Section 118 of the Evidence Act has not been followed by the learned Trial Court, that itself would not outrightly hold her testimony deserving to be rejected and as such the testimony of the child witness PW-1 Ku. Varsha Maravi is reliable and trustworthy. Similarly, as regards the variance in the statements of PW-1 Ku. Varsha Maravi recorded under Sections 161 & 164 of

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CrPC, she has not been cross-examined by the defence controverting her statements. The said statements were not put to her nor she was given an opportunity to explain the same and therefore it would be of no assistance to the appellant. So also, with regard to the Crime Details Form (Ex. P-22) prepared by the Investigating Officer, PW-21 Smt. Sadhna Singh, that it is not shown in Ex. P-22 as to from which place PW-1 Ku. Varsha Maravi has seen the appellant assaulting the three deceased persons, no question has been put to the Investigating Officer in this regard also and therefore that again would not make the statement of PW-1 Ku. Varsha Maravi deserving to be rejected which has otherwise been found to be reliable and trustworthy. Further, the appellant has also not been able to establish the plea of alibi which he has raised. Though the prosecution witnesses i.e. PW-14 Horilal Rathore and PW-15 Ravilal Jangde, the two co-workers of the appellant, and also PW-18 Radheshyam Sahu, the Shift In-charge of the K.J.S. Coal Washery, have stated that the appellant was present in the said plant the whole night when the incident has occurred, but from their statements it is not clearly established that the appellant was present or seen by them in the plant all

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along his duty hours between 10:00 pm to 6:00 am. Even as per the statement of PW-15 Ravilal Jangde, the distance of the village of the appellant and the said plant was just 1.5 kilometers. Thus, the plea of alibi also cannot be said to be proved beyond doubt so as to hold that the appellant was not present in his house in the night when the incident has occurred and the appellant has failed to discharge the said burden which was upon him to prove the said plea of alibi which he has raised. This apart, siezure of bloodstained sari which was used by the appellant to wipe out the blood on the floor and also the bloodstained vest and jeans pant which he was wearing at the time of incident was made at the instance of the appellant pursuant to his memorandum statement, which was duly supported by PW-13 Budhwar Singh, Sarpanch of the village and PW-12 Santosh Kumar Karpe. As such, the prosecution has been able to fully prove and esablish beyond reasonable doubt its case and the circumstances from which the conclusion of guilt can be drawn that it is the appellant who has committed the murder of his wife D-1 Ambika Kaushik and two minor sons D-2 Yuvraj Kaushik and D- 3 Harsh Kaushik in the intervening night of 13.10.2015 and 14.10.2015 in his house. Thus, in our considered

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opinion, the finding of conviction recorded by the learned Trial Court against the appellant for offences under Sections 302 and 201 of IPC is correct finding of fact based and oral and documentary evidence available on record. We therefore affirm the impugned judgment of conviction and sentence passed by learned Trial Court.

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19. In the result, we find no merit in this Criminal Appeal which deserves to be and is hereby dismissed.

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20. Registry is directed to send a copy of this judgment to the Superintendent of Jail where the appellant is presently undergoing his jail term, to serve the same on the appellant informing that he is at liberty to challenge the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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sharad Judge

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Digitally signed by SHARAD SHARAD KUMAR KUMAR YADAVDate: YADAV 2025.01.2017:18:36 +0530

Gayaram Kaushik v. State of Chhattisgarh

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Gayaram Kaushik v. State of Chhattisgarh

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