THE STATE OF MADHYA PRADESH v. BALVEER SINGH

Citation: [2025] 2 S.C.R. 836, 2025 INSC 261

Court: Supreme Court of India

Bench: J.B. Pardiwala and Manoj Misra, JJ.

Judgment text

SUPREME COURT OF INDIA The State of Madhya Pradesh v. Balveer Singh [2025] 2 S. C. R. 836 : 2025 INSC 261 The State of Madhya Pradesh v. Balveer Singh (Criminal Appeal No. 1669 of 2012) 24 February 2025 [J. B. Pardiwala* and Manoj Misra, JJ. ] Issue for Consideration Does the Evidence Act, 1872 prescribe any particular age as a determinative factor to treat a witness to be a competent witness; Does the Evidence Act treat evidence of a child on the same footing as any other witness; Before the evidence of the child witness is recorded, is it necessary for the Trial Court to record its opinion and satisfaction that the child witness understands the duty of speaking the truth; Whether the Court should apply s. 106 of the Evidence Act in criminal cases with care and caution; Does s.

106 of the Evidence Act absolve the prosecution from the duty of proving that a crime was committed; In the instant case, whether the High Court committed any error in acquitting the respondent of offences u/ss. 302, 201, and 34 of Penal Code, 1860. Headnotes† Evidence Act, 1872 - s. 118 - No prescription of any particular age as a determinative factor to treat a witness to be a competent one: Held: 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, s.

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. [Para 26] * Author The State of Madhya Pradesh v. Balveer Singh Evidence Act, 1872 - Principles pertaining to the appreciation of evidence of a child witness - Discussed.

[Para 34] Evidence Act, 1872 - Child witness is deemed to be on the same footing as any other witness - Precaution needs to be taken by the Court: Held: The evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long the child is found to be competent to testify - The only precaution which the court should take while assessing the evidence of a child witness is that such witness must be a reliable one due to the susceptibility of children by their falling prey to tutoring - However, this in no manner means that the evidence of a child must be rejected outrightly at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection - While appreciating the testimony of a child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence - At the same time, one must be mindful that there is no rule requiring corroboration to the testimony of a child witness before any reliance is placed on it.

[Para 35] Evidence - Tutored testimony - Two broad effects in testimony; (i) improvisation or (ii) fabrication - Discussed. [Paras 50-54] Evidence - Testimony - Classification of categories: Held: Irrespective of whether the testimony of a witness is tutored or not, the same, generally may be classified into three categories: - (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. [Para 55] Evidence - Appreciation of testimony - The judicially evolved principles for appreciation of ocular evidence in a criminal case - Discussed.

[Para 56] Evidence - Assessing the value of the evidence of the eyewitnesses - Two principle considerations: Held: In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of 838 the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence - In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence.

[Para 57] Evidence - Evidence of child witness - Opinion and satisfaction of trial Court: Held: Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion - The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court - The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.

[Paras 58 (iii), (iv)] Evidence - Circumstantial Evidence: Held: In a case of circumstantial evidence, the judgment remains essentially inferential - The inference is drawn from the established facts as the circumstances lead to particular inferences - The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question - All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. [Para 64] Evidence Act, 1872 - s. 106 - Burden of proving fact especially within knowledge: The State of Madhya Pradesh v. Balveer Singh Held: S.

106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him - The word "especially" means facts that are pre-eminently or exceptionally within the knowledge of the accused - The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in s. 106 of the Evidence Act - s. 106 of the Evidence Act is an exception to s. 101 of the Evidence Act - S. 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and s.

106 is certainly not intended to relieve it of that duty - On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, "especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience". [Para 68] Evidence Act, 1872 - s. 106 - Application with care and caution: Held: The court should apply s. 106 of the Evidence Act in criminal cases with care and caution - It cannot be said that it has no application to criminal cases - The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in s. 106 of the Evidence Act. [Para 75] Evidence Act, 1872 - s. 106 - s.

106 does not absolve the prosecution from the duty of proving that a crime was committed: Held: Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused - This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence - It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed - To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its 840 legitimate burden - So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

[Para 76] Evidence Act, 1872 - s. 106 - Explanation by accused: Held: s. 106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory - If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation - But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. [Para 77] Evidence Act, 1872 - s.

106 - Crimes committed in secrecy: Held: The crimes that are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence - No member of the family like in the case on board, even if he is a witness of the crime, would come forward to depose against another family member - If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of its choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused - It is to resolve such a situation that s. 106 of the Evidence Act exists in the statute book. [Paras 86, 87] Penal Code, 1860 - ss. 302, 201 and 34 - Evidence Act, 1872 - ss.

118, 106 - Prosecution case was that on the night of incident respondent-accused killed his wife by choking her neck with his leg - Thereafter, he cremated the body in the night itself - Prosecution examined 8 witnesses - PW-6 (minor daughter of deceased) was examined as a sole eye-witness to the incident - Trial Court convicted respondent u/ss. 302, 201 r/w. s. 34 of the IPC relying on the testimony of PW-6 - However, the High Court acquitted the respondent discarding the testimony of PW-6 - Correctness: The State of Madhya Pradesh v. Balveer Singh Held: There is nothing on record to indicate that PW-6 was a tutored witness - Trial Court recorded in its judgment, wherein it has been noted that PW-6 was cross examined at length for approximately 1.

5 hours, and her demeanour throughout the same was believable, with nothing to indicate that she had been tutored or was deposing falsely - It also has taken note of the fact that in the entire cross examination no significant contradictions were found - Thus, the High Court committed an egregious error in discarding the testimony of PW-6 - The incriminating circumstances emerging from the evidence on record are (i) The failure on the part of the respondent accused in not explaining in any manner as to what had actually happened to his wife i. e.

, the deceased or how she died on the fateful night of the incident, more particularly when he did not dispute that he was in the company of his wife at the relevant point of time; (ii) The unnatural conduct of the respondent accused in not informing the family members either about the death of their daughter or the cremation of her body, despite the fact that her family members were residing in the very same village; (iii) The fact that the respondent-accused after clandestinely cremating the deceased's body fled away and could not be found either at the house or in the field where the body had been burnt as stated by PW-3 and PW-6, respectively, again raises suspicion about the cause of death of the deceased; (iv) The suspicious circumstances under which the deceased died coupled with the fact that the accused had a fight with the deceased two to three days before the incident; their strained relationship and the accused frequently treating the deceased cruelly, as deposed by PW-3, PW-4, PW-5, and PW-6, respectively, further raise concerns and points towards the involvement of the respondent accused in the alleged crime; (v) It is also not the case of the respondent accused that the deceased was suffering from any ailment nor is there any evidence worth the name to suggest the possibility of her death occurring due to any health issue - Thus, in this regard, it was all the more important for the respondent accused to explain in what circumstances and in what manner his wife suddenly died on the fateful night of the incident - The aforementioned circumstances constitute more than a prima facie case to enable the prosecution to invoke s.

106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the day & date his wife died - Thus, the impugned judgment and order of acquittal passed by the High Court is hereby set aside, and 842 the judgment and order of conviction passed by the Trial Court is restored.

[Paras 59, 65, 89, 91] Evidence Act, 1872 - Delay in recording police statement - The High Court, in the impugned judgment allowed the appeal of the accused and acquitted him holding that the testimony of PW-6 did not inspire confidence particularly in view of the inordinate delay of 18-days in recording her police statement - Correctness: Held: There is nothing on record that would lead to the inference that the delay in recording the statement of PW-6 was done deliberately in order to manipulate or concoct the case against the respondent accused herein, and rather such delay appears to be inadvertent with no sinister motive or design in mind - The statement of PW-6 was recorded on the same date as the statement of PW-5 - If at all the investigating agency intended to allow the doctoring of the testimony of PW-6 then it would have only delayed the examination of the child witness (PW-6) and not of PW5 as- well, thus this delay in examination appears to be attributable to the routine manner in which the IO proceeded with the course of investigation and the overall investigation inertia and not to give effect to any unfair practice.

[Para 44] Evidence Act, 1872 - s. 165 - Duty of Judge - There was delay in recording statement of PW-6 by IO - Accused also failed in putting a question in regard to delay in examination of PW-6: Held: While it is true that primarily it was for the accused to question the IO to explain the delay in recording the statement of PW-6, but at the same time the Trial Judge should not have remained a mute spectator, acting like a robot or a recording machine to just deliver whatever stands feeded by the parties - The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one - Thus, even if the accused had failed in putting a question in regards to delay in examination of PW-6, the presiding judge was duty bound to put this question to the IO in exercise of his powers u/s. 165 of the Evidence Act. [Paras 42, 43] Case Law Cited Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341; Pradeep v.

State of Haryana [2023] 10 SCR 1021 : 2023 SCC OnLine SC 777; Ratansinh Dalsukhbhai Nayak v. State of Gujarat The State of Madhya Pradesh v. Balveer Singh (2004) 1 SCC 64; Panchhi v. State of U. P [1998] Supp. 1 SCR 40: (1998) 7 SCC 177; Suryanarayana v. State of Karnataka [2001] 1 SCR 1 : (2001) 9 SCC 129; Arbind Singh v. State of Bihar (1995) Supp 4 SCC 416; Digamber Vaishnav v. State of Chhattisgarh [2019] 2 SCR 844 : (2019) 4 SCC 522; State of M. P. v. Ramesh (2011) 4 SCC 786; Ranbir & Ors. v. State of Punjab [1974] 1 SCR 102 : (1973) 2 SCC 444; State of U. P. v. Satish [2005] 1 SCR 1132 : (2005) 3 SCC 114; Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404; Nagendra Sah v. State of Bihar (2021) 10 SCC 725; Tulshiram Sahadu Suryawanshi and Anr. v. State of Maharashtra [2012] 7 SCR 1083 : (2012) 10 SCC 373; Trimukh Maroti Kirkan v. State of Maharashtra [2006] Supp. 7 SCR 156 : (2006) 10 SCC 681; State of W. B. v. Mir Mohammad Omar and Ors. [2000] Supp.

2 SCR 712 : (2000) 8 SCC 382; Ram Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311 - relied on. Munna Pandey v. State of Bihar, 2023 INSC 793 : [2023] 11 SCR 1005; V. K. Mishra v. State of Uttarakhand (2015) 9 SCC 588; Ramratan and others v. State of Rajasthan [1962] 3 SCR 590 : AIR 1962 SC 424; Guli Chand and others v. State of Rajasthan AIR 1974 SC 276; Badri v. State of Rajasthan [1976] 2 SCR 339 : AIR 1976 SC 560; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [1983] 3 SCR 280 : AIR 1983 SC 753; Leela Ram v. State of Haryana [1999] Supp. 3 SCR 435 : AIR 1999 SC 3717; Tahsildar Singh v. State of UP [1959] Supp. 2 SCR 875 : AIR 1959 SC 1012; Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116; Balvir Singh v. State of Uttarakhand [2023] 12 SCR 815 : 2023 SCC OnLine SC 1261; Anees v. State Govt. of NCT 2024 INSC 368 : [2024] 6 SCR 164; Dharm Das Wadhwani v. State of U. P. (1974) 4 SCC 267 - referred to.

Books and Periodicals Cited A Treatise on Judicial Evidence, Jeremy Bentham; An Essay on the 'Principles of Circumstantial Evidence' by William Wills by T. and J. W. Johnson and Co. 1872; Professor Glanville Williams - Proofs of Guilt; Kenny's outlines of Criminal Law, 17th Edn. 1958; Webster's Third International Dictionary (1961 Edn. ) referred to. List of Acts Code of Criminal Procedure, 1973; Penal Code, 1860; Evidence Act, 1872.

844 List of Keywords Death under suspicious circumstances; Unnatural death report; Child witness; Sole eye-witness; Morgue enquiry proceedings; Morgue enquiry report; Cremation in clandestine manner; Tutored testimony; Deposing falsely; Delay in recording witness statement; Testimony of witness who is at inimical terms with accused; Preliminary examination of child witness; Competent to testify; Dangerous witness; Witnesses liable to be influenced easily; Tutored part separated from untutored part; Trial judge not a mute spectator; Delay due to routine manner of investigation; Evidence not to be discarded on procedural technicalities; Improvisation; Fabrication; Doctored or false statement; Twin conditions of fabrication; Reasonable likelihood of tutoring; Opportunity of tutoring child witness; Wholly reliable testimony; Wholly unreliable testimony; Neither wholly reliable nor wholly unreliable testimony; Ocular evidence; Minor discrepancies; Photographic memory; Power of observation; Witness not a human tape recorder; Piercing court examination; Rule of prudence; Minimum age of witness; Demeanour of child witness; Factum probandum; Factum probans; Circumstantial evidence; Chain of evidence; Ex vi termini; Unnatural conduct of accused; Absconding accused; Facts especially in knowledge of the accused; Shifting of burden of proof; Evidential burden; Persuasive burden; Positive and negative facts; Prima facie case; Crimes committed in secrecy of the house; Crimes committed in four walls of the house; Crime against women.

Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1669 of 2012 From the Judgment and Order dated 29. 06. 2010 of the High Court of M. P. at Jabalpur in CRLA No. 524 of 2004 Appearances for Parties Advs. for the Appellant: Pashupathi Nath Razdan, Sarthak Raizada, Mirza Kayesh Begg, Ms. Maitreyee Jagat Joshi, Ms. Akanksha Tomar, Argha Roy. Advs. for the Respondent: Lakhan Singh Chauhan, Hitesh Kumar Sharma, Akhileshwar Jha, Amit Kumar Chawla, Anil Shrivastav. The State of Madhya Pradesh v. Balveer Singh Judgment / Order of the Supreme Court Judgment J. B. Pardiwala, J. For the convenience of exposition, this judgment is divided into the following parts:- INDEX* A. CASE OF THE PROSECUTION ...................................... 2 i. The Incident. .............................................................. 2 ii. Oral Evidence on Record. ........................................ 6 iii. Trial Court's Judgment & Order. ............................. 18 B.

IMPUGNED ORDER ......................................................... 28 C. ANALYSIS ........................................................................ 34 i. Evidence of Child Witness and Test for parsing Tutored Testimony. ................................................... 35 ii. Principles of Law relating to appreciation of Circumstantial Evidence. ........................................ 70 a. Incriminating Circumstances emerging from the evidence on record. ............................................. 73 iii. Principles of Law governing the Applicability of Section 106 of the Evidence Act. ............................ 76 iv. What is "prima facie case" (foundational facts) in the context of Section 106 of the Evidence Act? . 88 D. CONCLUSION .................................................................. 93 * Ed. Note: Pagination as per the original Judgment. 846 1.

This appeal is at the instance of the State of Madhya Pradesh and is directed against the judgment and order dated 29. 06. 2010 passed by the High Court of Madhya Pradesh of judicature at Gwalior in Criminal Appeal No. 524 of 2004 ('Impugned Order') whereby the High Court allowed the appeal filed by the respondent herein and acquitted him of the offence under Section(s) 302, 201 and 34 respectively of the Indian Penal Code, 1860 (for short, the 'IPC'). A. CASE OF THE PROSECUTION 2. The deceased, namely, Birendra Kumari was married to the respondent accused. In the wedlock, two sons and a daughter named Rani were born. Rani at the time of the incident in 2003, was seven years of age. i. The Incident. 3. On 15. 07. 2003 sometime during the midnight, Bhoora Singh alias Yashpal i. e. , the complainant along with his father Bharat Singh; the maternal cousin brother of the deceased's father, heard cries and screams of the deceased coming from the house of the accused.

After some time, the screams of the deceased stopped. At about in the morning, they learnt from the other inhabitants of the village that the deceased had died during the night and that her body had been cremated. 4. Accordingly, the complainant along with his father went to the Indar Police Station at around 9:00 AM and lodged an unnatural death report / information under Section 174 of the Code of Criminal Procedure, 1973 (for short, the 'Cr. P. C. ') in connection with the death of the deceased under suspicious circumstances, which was registered in entry no. 404 of the general diary as Morgue No. 07 of 2003 dated 16. 07. 2003. In the said report, the Complainants stated that on the fateful night of the incident, at around 12:00 AM, they heard the cries and screams of the deceased which eventually ceased. Shortly, thereafter they saw the accused along with his family members cremating the deceased in their field.

It was further stated that when they went to the house of the accused to inquire about the incident, the daughter of the deceased (Rani) informed that her mother had died. The said unnatural death information report reads as under: - The State of Madhya Pradesh v. Balveer Singh "Informant Bhoora @ Yashpal along with his companion father Bharat Singh came to the police station and orally reported that tonight at around 12 o' clock from the house of Balveer Yadav of their village, the noise of her wife Virendra Kumari crying and screaming were coming out, after some time, the noise stopped coming, thereafter, around 3 o'clock in the night Balveer and his family members were cremating Virendra Kumari in their field, then I went to Balveer's house and inquired from her daughter Rani why dear, what happened, then she told that Mummy has died, then I got to know that Virendra Kumari has died, her body has been burnt, therefore I am reporting that an investigation be conducted.

The report was read over and heard and has been written in the same manner as it was stated. Based on the aforesaid statement, Marg No. 7/03 under Section 174 Cr. P. C. was registered, taken under investigation, and the investigation was entrusted to ASI MP Singh. " 5. Upon receiving the information, enquiry was undertaken by ASI Mahendra Singh Chauhan. In the course of the enquiry, it was revealed that the respondent accused on the night of the incident had killed his wife i. e. , the deceased in the porch on the first floor by throwing her to the ground and thereafter choking her neck with his leg. The enquiry further revealed that thereafter the body was cremated in the night itself with the help of his sister, Jatan Bai. 6. In view of the aforesaid, first information report bearing no. 142 of 2003 dated 20. 07.

2003 came to be registered against the respondent accused herein and her sister, Jatan Bai for the offence punishable under Section(s) 302, 201 read with 34 respectively of the IPC. The relevant contents of the FIR are reproduced below: - "I am posted as Station in charge at Police Station Indar. On 16/7/03, on the basis of information received from Informant Bhoora @ Yashpal S/o Bharat Singh Yadav R/o Village Singharai, Marg No. 7/03 was registered in the General Diary Entry No. 404 and taken under investigation. Its investigation was conducted by ASI Mahendra Singh, on receiving the investigation report, it was attested by 848 me, where offence under Section 302, 201, 34 IPC were found proven against Balvir Singh Yadav and Jatan Bhai, therefore, Crime No. 142/03 registered against both the accused under relevant offence sections and taken under investigation.

Copy of Marg Intimation and Inquiry Report is as follows: Informant Bhoora @ Yashpal along with his companion father Bharat Singh came to the police station and orally reported that tonight at around 12 o' clock from the house of Balveer Yadav of their village, the noise of her wife Virendra Kumari crying and screaming were coming out, after some time, the noise stopped coming, thereafter, around 3 o'clock in the night Balveer and his family members were cremating Virendra Kumari in their field, then I went to Balveer's house and inquired from her daughter Rani why dear, what happened, then she told that Mummy has died, then I got to know that Virendra Kumari has died, her body has been burnt, therefore I am reporting that an investigation be conducted. The report was read over and heard and has been written in the same manner as it was stated. Sd/- Yashpal Singh. Based on above information, Marg No. 7/03 under Section 174 Cr. P. C.

was registered and taken under investigation and investigation was entrusted to ASI M. S. Chauhan. Investigation Report - Respected SO Police Station Indar Subject: In relation to the commission of offence under Section 302, 201, 34 IPC on the investigation of Marg No. 7/03 Section 174 Cr. P. C. , it is stated that on the basis of order issued by his good-self, I ASI Mahendra Singh conducted the investigation of Marg No. 7/03 under Section 174 Cr. P. C. after reaching the spot Village Singharai, during the course of investigation, recorded the statement of complainant Bhoora @ Yashpal Singh Yadav, Kumari Rani, D/o Balvir Singh Yadav, Bharat Singh Yadav R/o Village Singharai and Badal Singh Yadav, Police Station Badarvas. On spot map of the place of incident was prepared and seizure proceedings were conducted, from the investigation up till now and the statement of Kumari Rani Yadav, it has been found that Balvir Singh Yadav The State of Madhya Pradesh v.

Balveer Singh husband of the deceased Virendra Kumari murdered her by slamming Virendra Kumari on the floor of the porch of the house and choked her neck by pressing his foot and Kumari Jatan Singh helped her brother Balvir Singh in the murder, later on, during the night itself, Balvir Singh Yadav took the dead body of his wife on his shoulders to his field and discreetly burnt it. Therefore, prima facie the offence under Section 302, 201, 34 IPC has been found to be proven against Balvir Singh Yadav S/o Samadar Singh Yadav, Jatan Bhai D/o Samadar Singh Yada, residents of Singharai. Therefore, it is requested, the investigation report for further action along with case diary is forwarded to you. Mahendra Singh ASI Police Station Indar. " 7.

In the course of the investigation, the statement of the complainant and his father were recorded, spot map / site plan of the place of occurrence was prepared along with the seizure memo for the bones and burnt bangles found at the place of cremation of the deceased along with a plastic diesel can in the presence of the complainant and the village watchman; Narain Singh. Accordingly, on 22. 07. 2003 the respondent accused was arrested. 8. Upon conclusion of the investigation, charge sheet was filed on 30. 07. 2003 against the respondent accused, Balveer Singh and the co-accused; Jatan Bai for the offences Section(s) 302, 201 read with 34 of the IPC. On 03. 08. 2003, the police statement of the child witness; Rani i. e. , the daughter of the respondent accused and deceased was recorded. The investigation revealed that the co-accused at the time of incident was a juvenile, accordingly, her trial was separated.

The case against the respondent accused was committed for trial to the Court of Session and registered as S. T. No. 197 of 2003. Charge was framed against the respondent accused for the offence enumerated above by the Addl. Session Judge to which the respondent accused pleaded not guilty and claimed to be tried. ii. Oral Evidence on Record. 9. The prosecution examined a total of 8 witnesses in support of the charge. Narain Singh (PW2) the watchman of the village was examined as a panch witness to the seizure memo and for establishing the accounts of the fateful night of the incident. Bhoora Singh alias 850 Yashpal (PW3) and Bharat Singh (PW4) were examined to establish the chain of events when the incident occurred along with Badal Singh (PW5), the father of the deceased to prove the harassment caused by the respondent accused towards his deceased wife. Rani (PW6) the daughter of the respondent accused and the deceased was examined as the sole eye-witness to the incident.

Mahender Singh Chauhan (PW7) and Rajender Kumar Chhari (PW8) were examined to prove the contents of the unnatural death report, the FIR and the seizure memos. Mahesh Kumar Mishra (PW1) the Patwari of the village was also examined to establish the place of occurrence and cremation of the deceased. 10. Rani (PW6), the daughter of the accused and deceased and the sole eye-witness to the incident deposed that on the fateful night of the incident, the deceased was sleeping in the open courtyard of the house. She deposed that at that time, the deceased, her two infant brothers and her aunt Jatan i. e. , the co-accused were present in the house. At that time, the respondent accused came and grabbed the deceased from her neck and hit a blow on her body with a stick causing her to fall. Thereafter, the respondent accused exerted pressure on her neck with his feet and as a result the deceased screamed for help.

When she ran to help her mother, the respondent accused slapped her and the co-accused pulled her away. She deposed that she did not witness what happened next but later she saw her mother dead and her body being taken by the respondent accused to the barn. She further deposed that early in the morning she found the body of her mother burning. She deposed that she had informed Bhoora Singh (PW3) in the morning that the deceased had been killed. In her cross examination, she denied the suggestion of being tutored at the instance of PW3 or PW4. She denied that Bhoora Singh and Bharat Singh had told her to repeat or memorize the police statement given by her. She admitted not having told the police about the respondent hitting the deceased with a stick before attempting to choke her. She further denied the suggestion that the deceased was suffering from ailment, clarifying that her mother had fallen sick only once i. e. , three-months before the incident took place.

She further revealed that when her mother asked the respondent accused to take her for treatment, the accused hit her. Apart from this, nothing substantial was elicited through her cross-examination. The State of Madhya Pradesh v. Balveer Singh 11. Mahesh Kumar Mishra (PW1), the village patwari deposed that he had assisted the police in preparation of the site-map of the place of incident and identified his signatures on the same. In his cross, he stated that there are around 5-6 houses between the house of the Complainant and the accused. He further stated that there is also a Basti between the two houses where approximately 100 people live. In the last, he admitted that cremations are often done by the people of the village in their own fields or barns, wherever they find space. Apart from this, nothing substantial could be elicited from his cross-examination. 12.

Narain Singh (PW2), the village chowkidar deposed that when the police checked the verandah of the deceased, they could find nothing and that the bangles belonging to the deceased were recovered and collected from the place where the body was burnt. He identified his signatures on the seizure memo drawn of the ashes, bones and bangles belonging to the deceased as-well as a green coloured diesel cannister. In his cross, he stated that the house of the Complainant is 5-6 furlongs away from the accused's house making it impossible for any noise of shouting to travel between them. He further admitted that there are houses of 150 people approx. between the two places. In his cross he also stated that, 4-5 years ago, there had been a dispute between the complainant and the accused, because of which they were not on talking terms. He also deposed that there is no designated area for cremation, and people usually hold it in their own fields.

In the last, he also admitted that when he went to the house of the accused, nothing incriminating was noticed. 13. Bhoora Singh (PW3) deposed that the respondent accused and the deceased got married sometime in 1990 but their relationship turned sour about a year later. He deposed that the respondent accused had demanded a motorcycle, for which the deceased's father i. e. , PW5 had arranged a certain sum of money. He further deposed that the deceased had also previously instituted a case seeking maintenance from the accused. He deposed that he lived near the house of the deceased and the accused and that on the fateful night of the incident, he and his father heard the cries and screams of the deceased for about an hour, and assumed that there had been a quarrel between the two. When the screams stopped, they thought that the altercation had ended.

However, the next morning they came to learn that the deceased had died in the night and that 852 her body had been cremated in the accused's field. When he along with his father reached the spot where the body of the deceased was burning, the other inhabitants of the village gathered around. He deposed that the cremation of the deceased was unusually suspicious as typically the entire village would be called to attend the cremation, which was not the case here. He also recounted that two-three days before the incident, he had met the deceased who in turn had requested him to inform her father that there had been a fight between her and the accused. In the last, he deposed that, when the police reached the place of incident, they collected the ashes and remains of the deceased, her bangles and a diesel canister.

In the cross, he denied the suggestion that he could not have heard the cries of the deceased due to the distance between their houses, and stated to have heard the screams between 12:00 to 1:00 AM. He admitted not calling the other village inhabitants upon hearing the screams as it was common for the accused and the deceased to often fight. He denied having gone to the house of the accused at 3:00AM in the night and further denied stating so when confronted with his statement recorded in the morgue enquiry proceedings. He deposed that he came to know that the deceased had died only in the morning after he was informed by other people residing in the village at around 5:00 AM. He further deposed that when he reached the spot at around 6:00 AM with his father, the accused was not present however, he noticed that the other village inhabitants had already gathered. He admitted that he was not able to remember their names.

He further deposed that the body of the deceased had been burned in the night itself but admitted not knowing who was responsible for it. He deposed that he only saw the burnt body of the deceased in morning and further admitted that none of the other villagers raised any issue. He stated that he met the daughter of the deceased i. e. , PW6 after returning from the field. He in the last denied the suggestion that he was falsely deposing on account of an ongoing enmity. 14. Bharat Singh, PW4, deposed that within two years of marriage the relationship between the deceased and accused turned sour. The accused would often harass the deceased with demands for dowry. The accused had already obtained a ring and a sum of money for a motorcycle from her father. He further deposed, that on the date of incident, they had heard cries and screams of the deceased in The State of Madhya Pradesh v. Balveer Singh the night. When the screams eventually stopped, he along with his son went off to sleep.

Later they came to know that the deceased had been killed. He deposed that they saw the wood and ashes lying near the field of the accused from a distance. He deposed that they then went to the police to file a report, after which he spoke to the deceased's daughter who informed that the accused had killed the deceased. In the last, he deposed that usually cremation is not performed during the night hours and that all the inhabitants of the village would join the funeral. However, that was not the case and the accused surreptitiously burnt the body of the deceased on the fateful night of the incident. In his cross when confronted with his police statement, he denied the suggestion that he had not stated before police about the ring given to the accused. He admitted that he had not personally seen the money being given to the accused and rather had only heard about it from PW5. He acknowledged that there are a couple of houses between his place and the accused's house.

He further admitted that, he could not identify whose screams they heard on the night of the incident, but later came to know from other villagers that it was the deceased. He denied the suggestion that he and his son had gone to the accused's house at night and reiterated that they learnt about the incident only in the morning. He further admitted to have only seen the wood pyre burning from a distance and as such was unable to recollect who all had gathered. He deposed that he had spoken to the deceased's daughter, after they brought the police with them, who then recorded his statement along with the statements of PW3 and PW6 respectively. He further denied the suggestion that there was no designated crematorium in the village.

He also denied the suggestion that he was deposing falsely due to the strained relations with the accused, however, he admitted that two to four months before the incident, although the accused had stopped visiting him yet he used to meet the accused's father occasionally. Apart from this, nothing substantial was elicited from his cross-examination. 15. Badal Singh, PW5 deposed that the accused had made demands for a motorcycle within 10-12 days of the marriage, for which he gave him a sum of Rs. 45,000/-. He further stated that the accused initially took care of the deceased but later began harassing her to the extent he used to beat her. He stated that he had filed a case against the accused when he had threatened to kill the deceased, 854 and further identified the certified copy of the same in the exhibits. He also deposed bringing medicines and food for the deceased. He had also filed a maintenance case and identified the certified copy of the same in the exhibits.

He deposed that on the day of the incident, the deceased had already been cremated by the time he arrived. In the cross, he admitted not mentioning to the police about the gold ring given towards dowry as it was a customary practice. He further deposed that on one occasion the accused had beaten the deceased in front of the PW3 & PW4 respectively, which had prompted them to take her to the police to lodge a complaint. He admitted that there is a village settlement or basti of approximately 100 lodgings between the house of the Complainant and the accused. He admitted that his relationship with the accused had strained due to the latter's constant demands and torturing of the deceased. Apart from this, nothing significant could be elicited through his cross-examination. 16. Mahendra Singh, PW7, the Assistant Sub-Inspector (ASI), stated in his deposition that on 16. 07. 2003 he was entrusted with the investigation of case under Morgue No. 07/2003.

He further stated, that later on the same day, he prepared the site-map of the place of incident based on PW6's indications. He further seized and sealed pieces of broken bangles belonging to the deceased and the soil near the place of occurrence. He deposed that he then reached the field where the body of the deceased had been burnt, and collected her remains in the form of ashes and burnt pieces of bangles along with a diesel cannister. He further deposed that he then proceeded to record the statements of PW3, PW4, PW5 and PW6 respectively. In the last, he deposed that after the investigation he prepared a report prima facie opining that the deceased had died under suspicious circumstances and thereby suggesting the commission of offence under Section(s) 302, 201 read with Section 34 of the IPC by the accused persons. He further deposed that he accordingly handed over the report along with the morgue case diary to PW8, the Sub-Inspector, for further action.

In his cross, he admitted that the statements recorded during the morgue enquiry were not produced along with the challan as he had carried out investigation only till 17. 02. 2003 after which the investigation was undertaken by PW8. He further admitted that he did not record the statements of both the brothers of PW6 as they could not be found. Apart from this, nothing substantial could be elicited through his cross-examination. The State of Madhya Pradesh v. Balveer Singh 17. Rajendra Kumar Chhari, PW8, the Sub-Inspector (SI), deposed that upon completion of the investigation of case under Morgue No. 07/2003, he registered the First Information Report (FIR) as Crime No. 142 of 2003 against the accused persons. He further stated that during the investigation, he recorded the statements of PW3, PW4, PW5 and PW6 respectively, and that he neither added nor deleted anything from their police statement.

In his cross, he stated that the statements recorded in morgue case diary by PW7 were handed over to him. He further admitted that the statements of PW6 Rani and her two younger brothers were not recorded during the morgue enquiry as well as in the course of the investigation as they were just 3-4 years old and found to be not competent. He further stated that the police statement of PW6 had been recorded on 03. 08. 2003 at the house of her maternal grandfather i. e. , PW5. When confronted with the contradiction brought on record in PW3's testimony with his police statement, he stated that the PW3 had categorically stated in his police statement visiting the house of the accused at night and inquiring with PW6 as regards her mother's death and thus proving the said contradiction. He further admitted in his cross, that PW4 had not mentioned anything about the accused taking a ring from the deceased's father in his police statement.

He also admitted, that PW6 in her police statement had neither mentioned that the accused hit the deceased with a stick nor was any such stick recovered. However, he confirmed that PW6 in her statement had mentioned about the accused placing his leg on the neck of the deceased, but admitted that she did not use the word 'shoe' or indicate whether the accused was wearing one. Nevertheless, he reiterated that PW6 had mentioned in her statement that she was sleeping with the deceased in the veranda and that the accused had placed his leg on the neck of the deceased. In the last, he further admitted that PW6 had not stated in her police statement that the accused's mother had mixed something in the food and had offered it to the deceased. 18. Upon completion of the recording of oral as well as documentary evidence, the further statement of the accused was recorded under Section 313 of the Cr. P. C.

, in which he claimed himself to be innocent and had been falsely implicated in the alleged crime. When asked about PW6's testimony that she saw him reach the courtyard where the deceased was allegedly sleeping and the incident took place, the respondent accused answered that all the family members were 856 sleeping inside the house. When questioned about PW6's deposition that she saw him pressing the deceased's neck with his leg on the night of the incident, the respondent accused answered that it was wrong. Similarly, the respondent accused refuted the PW6's deposition that she saw the deceased die at the spot and later found her body cremated the following morning, and dismissing it as wrong. The relevant extracts of the respondent accused's further statement read as under:- "Que. No. 25: Witness Rani (PW-06) states that Birender Kumari was her mother you are her father. What do you want to say? Ans: It is right. Que. No.

26: This witness further states that on the day of incident her mother was sleeping in the corridor and this witness was not sleeping by that time. You came from the Khera in the night. What do you want to say? Ans: It is wrong. Que. No. 27: This witness further states that she was sleeping nearby in the Tibbara. What do you want to say? Ans: It is wrong. Que. No. 28: This witness further states that you caught 8 Birender Kumari from her neck. Then her mother rant towards the door. You attempted a blow of Lathi on her which hit her on her back so her mother fell down. Then you caught her mother from the neck. What do you want to say? Ans: It is wrong. Que. No. 29: This witness further states that her mother had fell down in the Dehri and you kept your leg on her neck. You were wearing shoes. What do you want to say? Ans: It is wrong. Que. No. 30: This witness further states that her mother said, "Rani save me". So, this witness rant towards here and you slapped on her cheek.

What do you want to say? Ans: It is wrong. The State of Madhya Pradesh v. Balveer Singh Que. No. 31: This witness further states that then her Bua Jatan caught this witness. What do you want to say? Ans: It is wrong. Que. No. 32: This witness further states that you 9 reached in the courtyard and Bua was also sleeping in the courtyard at that time. What do you want to say? Ans: All were sleeping in the house. Que. No. 33: This witness further states that her mother died on the spot. She saw the dead body of her mother. What do you want to say? Ans: I don't know. Que. No. 34: This witness further states that you took the dead body of her mother in the Kher during the night to cremate her and after cremating her you fled away from there. What do you want to say? Ans: It is wrong. Que. No. 35: This witness further states that you caught her mother before this witness and when she went to the field in the morning her mother was burning there. What do you want to say? Ans: It is wrong.

xxx xxx xxx Que. No. 48: Why do the witnesses speak against you? Ans: They are afraid of the police. Que. No. 49: Do you want to adduce defence witness? Ans: Yes, Sir. Que. No. 50: What do you want to say in defence? Ans: I am falsely implicated in the case. " iii. Trial Court's Judgment & Order. 19. Upon appreciation of the oral as well as documentary evidence on record, the Trial Court vide its final judgment and order dated 858 09. 08. 2004 passed in Sessions Trial No. 197 of 2003 reached the conclusion that the respondent accused herein was guilty of the offence punishable under Sections 302, 201 read with 34 of the IPC. The findings recorded by the Trial Court in its judgment and order of conviction can be better understood in five parts: - (i) First, it took note of the fact that the deceased was cremated in the night itself without informing her family members and the villagers too.

This fact stood proved through the testimony of PW6 who had deposed to have seen the accused take the deceased away. The Trial Court believed the version of the PW3 and PW4 who later found the body of the deceased burning in the field of the accused in the morning and also the say of the PW7, the ASI who conducted the inquest enquiry. The clandestine manner in which the body of the deceased came to be cremated was taken by the Trial Court as one of the incriminating circumstances against the accused establishing the death of the deceased was not natural. The Trial Court considered the strained relations of the accused with the deceased. Another incriminating circumstance against the accused that was looked into was the fact that the accused fled away from the place of incident after cremating the deceased. The relevant observations read as under:- "13.

In evidence this fact is proved that the deceased Birender Kumari who is the wife of the accused, her cremation was done in the night in the fields of Samunder Singh and in evidence it has come that without informing the villagers or the family of the deceased she had been cremated. xxx xxx xxx 20. [... ] The witness has stated that when her paternal aunt caught hold off her, after that she does not know what happened to her mother. She had seen her mother dead. Her father took her mother to the fields to burn her body which is at a little distance from the house. In the night itself her other was burnt after which her father ran away. The witness has stated that in her presence only her mother had been taken The State of Madhya Pradesh v. Balveer Singh away but she was not burnt in her presence. When she went to the fields in the morning at that time her mother was burning there. [... ] xxx xxx xxx 22. PW-3 Bhoora has stated that Birender Kumari is his ..

sister being the daughter of his maternal uncle. On the day of incident in the night he and his father were sleeping in their house upon which they had heard voices of Birender Kumari crying. [... ] In the morning when he and his father got up then they came to know that Birender Kumari has died and that she has been burnt by the accused clandestinely in their fields itself. When he and his father and the entire village went to see then the dead body was burning which fact is confirmed by Bharat Singh also. [... ] The accused used to harass and the motorcycle had not been given. He used to give beatings upon which the deceased used to come to him. Once the accused beat her very badly and did- not give her anything to eat also. Upon whiCh she had filed a case of maintenance in the JMFC Court, Kolaras of which the certified copy is Ex. P-8. The girl had been given beatings, the true copy of which report is Ex. P-9. xxx xxx xxx 25.

The deceased Birender Kumari in the night itself was taken to the fields and she was cremated which fact is confirmed apart from PW-3 Bhoora and PW-4 Bharat Singh, from the statement of Mahender Singh also that after the enquiry of report Ex. P-7 he had gone on the spot. The dead body of deceased Birender Kumari which was burnt in the fields of Balvir and Samunder Singh in which the bones of the deceased, her ashes and the burnt pieces of bangles were seized from the spot. xxx xxx xxx 29. The accused had carried Birender Kumari to the fields in relation to which direct evidence has not come. It has come in the statement of Rani that the accused took her 860 mother to the fields and Jatan had told that her mother had been taken for cremation. In the fields the deceased was cremated in the night which circumstance also goes against the accused.

If the death of deceased Birender Kumari was of ordinary nature then what was the reason that in the night without informing the reason to the family of the deceased she was cremated in the night especially when prior to the incident itself the mutual relations of the accused and deceased were not good and according to Ex. P-8 & P-9 the case in relation to not giving beatings and maintenance had been filed by the deceased in the Court. Another circumstance which indicate the involvement of the accused in the incident is that after cremation, according to Bhoora and Bharat the accused was not present in the fields. It has also come in the statement of Rani that accused and Jatan had fled from the spot. According to the arrest memo the accused has been arrested on 22. 08. 03. If in actual the accused was innocent then he would not have cremated the dead body of his wife clandestinely in the night without informing anyone nor he would have fled from the spot.

" (Emphasis supplied) (ii) Secondly, the Trial Court in order to ascertain how and in what manner the incident had taken place which led to the death of the deceased, accepted the testimony of PW6 to be true, trustworthy and reliable. The Trial Court believed the version of PW6 that her mother was sleeping in the courtyard, when the accused came and caught hold of her. The deceased tried to escape but fell down upon which the accused compressed her neck with his leg. The Trial Court recorded that PW6 had in clear terms categorically deposed that she saw her mother die on the spot itself, however had no idea what transpired thereafter except that the accused carried her body to the field. The relevant observations read as under: - "19. Now it has to be seen whether according to the version of the prosecution what incident had taken place in the room of the accused and in what manner the incident took place, in relation to it the evidence The State of Madhya Pradesh v.

Balveer Singh which has been led from it whether the version of the prosecution can be believed or not? 20. Rani (PW6) aged about is aged about 7-8 years and is the daughter of deceased and accused. This witness has stated in her chief that on the date of incident she was sleeping with her mother and brothers Sandeep and Chotu. Her mother was in the courtyard and she herself was sleeping in the open room. The accused caught hold off her mother by her neck upon which her mother ran towards the door upon which her father· caught hold off her and L gave a lathi blow to her mother which landed on her back. Her mother fell down upon which, her father caught hold off the neck of her mother. Her mother fell on the threshold. Her father put his leg on the neck of her mother. Her mother shouted "save me Rani" upon which she ran to save her but her father / accused gave her a slap. Her Bua/paternal aunt caught hold off her.

The witness has stated that when her father came at the courtyard, at that time her paternal aunt was also sleeping in the courtyard and she does not know what happened after it. The police had come in the morning. Her mother had died there itself. The witness has stated that when her paternal aunt caught hold off her, after that she does not know what happened to her mother. She had seen her mother dead. Her father took her mother to the fields to burn her body which is at a little distance from the house. " (Emphasis supplied) (iii) Thirdly, the Trial Court found that although there had been a delay in recording the statement of PW6 under Section 161 of the Cr. P. C. , yet the same, by itself, cannot be a ground to reject or doubt her testimony as an afterthought or unbelievable. No question was put by the accused to the IO in this regard nor any suggestion was put to the IO that he deliberately recorded as belated statement only to create evidence against the accused.

It further noted that the testimony of both the PW5 as-well as PW6 had been recorded on the same day. The Trial Court 862 observed that even before recording of statement of PW6, the morgue case No. 70/2003, the enquiry report and the FIR had mentioned PW6 as the main witness to the incident. Thus, it held that it cannot be said that there was any attempt to falsely project her as an eye-witness to the incident. The relevant observations read as under: - "18. [... ] In his cross examination the witness has stated that the IO investigating the morgue had given the morgue diary with the enquiry report. The-statement of Rani has been recorded by the IO on 03. 08. 03. On the same day the statement of his maternal grandfather PW-5 Badal Singh had also been recorded the statement of both of them had been recorded in the house of Badal Singh.

The registration of the case on the morgue enquiry report after delay by the IO or in relation to the recording of the statement of Rani after delay on 03. 08. 03 no questions have been put. Therefore, only on this ground that the IO recorded the statement of Rani on 03. 08. 03 and that her statement is an afterthought and on the basis of it the accused is not guilty, this statement is not believable and I do not agree with this argument. [... ] in relation to the IO recording the statement of Rani after delay no question has been put, therefore, no benefit from the same can be given to the IO. [... ] There are no such facts in the evidence that the IO deliberately recorded the statement of Rani after delay under section 161 Cr. P. C. , so that she may be projected as an eye witness as is mentioned in the morgue intimation Ex. P-7, morgue enquiry Report Ex. P-11 and the FIR Ex. P-12 that Rani is the main witness in the incident.

" (Emphasis supplied) (iv) Fourthly, the Trial Court upon evaluation of the testimony of PW6 found the same to be reliable and inspiring confidence. It found that the presence of PW6 as an eye-witness to the incident was natural and believable, as it is common for a child The State of Madhya Pradesh v. Balveer Singh of her age to be sleeping with her mother in the night. It further noted that the PW6 had been cross examined at length for approximately 1. 5 hours, and her demeanour all throughout was observed and the same suggested that she was not tutored or deposing falsely. In the absence of any contradictions in the form of material omissions, her testimony cannot be discarded solely because she resides with her maternal grandfather or that she hates the accused.

It further found that although the statement given by her during the morgue enquiry had not been produced by the prosecution, yet the same, by itself, is not fatal as no demand had been made by the accused to bring the same on record. Moreover, the Trial Court found that in both morgue inquiry report and the FIR the factum of PW6 stating that the accused killed the deceased by putting his leg on her neck is clearly recorded. The relevant observations read as under: - "17. First of all Rani was present on the spot and whether she is actually an eye witness to the incident, this fact has to be seen. In the statement of Rani in para no. 1 it has come that Birender Kumari was her mother. On the day of incident her mother was sleeping in the courtyard and near her in open room this witness was sleeping.

This witness has stated that she has two younger brothers of whom the elder is Sandeep who used to sleep with Jatan and the younger is Chotu who used to sleep with her mother and she used to sleep alone. At the time of incident her mother was feeding milk to her younger brother when her father came. Rani was present with her mother on· the date of incident. There appears to be no reason to disbelieve her ·statement which is natural that a minor child was sleeping with his mother in the night. 18. The statement of Rani during investigation was recorded by PW-7 Mahender Singh. It is correct that the statements recorded during morgue enquiry have not been produced in evidence but Mahender Singh during his cross has stated that in the statement during morgue enquiry which he had recorded, his police diary is with the police.

On behalf of the accused no 864 demand has been made for the bringing on record of those statements in the case diary that statement is annexed according to which the statement of Rani has been recorded on 16. 02. 2003. After that on the morgue enquiry report the crime was registered on 20. 02. 2003. As has been stated by PW-8 Rajender Chhari that after recording the FIR Ex. P-12, its copy was sent to JMFC, Kolaras U/s 157 Cr. P. C. which is Ex. P-13. This fact has not been challenged during cross examination. xxx xxx xxx 27. Here it will be proper to mention that PW-6 Rani has been cross examined at length and according to the record her statement was started at 12:45PM and she was cross-examined till 02:30PM and her cross examination no such fact has come which may warrant that she has deposed falsely or that she has been tutored. She has been found to be present on the spot. [... ] there are no clear contradictions in the statements of PW-6 Rani.

Her evidence appears to be believable. Her present on the spot and the circumstances of the incident are substantially proved. Only on the ground that the Rani resides with her maternal grandfather and hates her father and does not want to reside with her and after the death of mother she is residing with her maternal grandfather only, her statement cannot be disbelieved. The statement of Rani was recorded immediately after the incident at the time of morgue enquiry which fact is proved from evidence. Even if on behalf of the accused her statement has not been called in evidence, after that the statement of Rani was recorded during the investigation on 03. 08. 03 as it has come alone. The reason of delay has not been asked from the IO . Only on that ground her statement given in the Court cannot be disbelieved. 28. The statement given by Rani in the Court where the incident is stated to have taken place and the The State of Madhya Pradesh v.

Balveer Singh manner in which the accused caused the death of Birender Kumari, there is no reason to disbelieve the same. It is correct that Bhoora was not told by Rani that the death of Biren·der Kumari has been caused by the accused or that in what manner, her death was caused but in the morgue enquiry report, FIR and statement section 161 Cr. P. C. Rani had stated the manner in which the accused put his leg on the neck of the deceased and caused her death which fact is confirmed from the statement of Rani given in the Court. " (Emphasis supplied) (v) Lastly, the Trial Court also found the testimony of PW6 to be sufficiently corroborated with the other materials on record. It noted that the version of PW6 that the deceased stopped screaming after the accused pressed her neck with his leg is corroborated with the testimony of PW3 and PW4 respectively.

Similarly, her version, that in the morning she told PW3 that the deceased had been killed and that she had found the burnt bangles of the deceased stands corroborated with the testimony of PW3. The relevant observations read as under: - "16. [... ] It is clear that on the statement of a child witness reliance should not be placed in the absence of corroboration. In relation to the statement of a child witness the real test is that as to what extent a child witness remains constant on his statement and in what manner a child witness faces the cross-examination and what extent the statement given by him find a suitable place in the other evidence and the circumstances of the case. In view of these principles the investigation of the evidence given by PW-6 Rani is necessary. xxx xxx xxx 20. [... ] When she went to the fields in the morning at that time her mother was burning there.

The witness has also· stated that she had met Bhoora who is the 866 nephew of the maternal grandfather upon which she had told him that "mother has been killed". She had told this fact to Bhoora in the morning when the police had come. The witness has stated that the bangles of her mother were lying in the courtyard. [... ] xxx xxx xxx 26. Rani has also stated that the accused on the day of incident after putting his leg on the neck of mother had pressed it and she had seen her mother dead, upon which there is no reason to disbelieve the same. From the statement of PW-7 Mahender Singh as it has come above, he had recorded the statement of Rani during morgue enquiry and it has come in para 4 of the statement of Bharat Singh that the police had talked with Ranj- and had recorded her statement on the same day. This statement of Rani that she told to Bhoora that her mother has died is confirmed from the statement of Bhoora. [...

] The statement of Rani that when her mother had stopped screaming, this fact is confirmed from the statements of Bhoora and Bharat also that in the night the cries of Birender Kumari was heard and after sometime the voice has stopped. " (Emphasis supplied) 20. Accordingly, the Trial Court vide its judgment and order dated 09. 08. 2004 in ST No. 197 of 2003 held that the prosecution had succeeded in proving its case beyond a reasonable doubt, and convicted the respondent accused for the offence punishable under Sections 302, 201 read with 34 of the IPC. The operative portion of the order reads as under: - "30. In view of the abovementioned entire facts Rani who is the eye witness of the incident and in view of the circumstantial evidence in which the deceased has been cremated, the prosecution has succeeded in proving its case the accused Balvir pressed the neck of his wife with his leg due to which she died and in order to hide The State of Madhya Pradesh v.

Balveer Singh that evidence he along with the co accused went to the fields with the dead body of the deceased Birender and cremated her without informing anyone. xxx xxx xxx 32. In view of the abovementioned facts I find the accused guilty of the offence punishable under section 302 read with section 201/34 IPC. In order to hear the accused persons on the question of sentence, at this stage the decision is deferred. " 21. The Trial Court sentenced the accused to undergo rigorous imprisonment for life with fine of Rs. 1,000/- for the offence punishable under Section 302 IPC and four years of rigorous imprisonment along with fine of Rs. 2,000/- for the offence punishable under Section 201 of the IPC. B. IMPUGNED ORDER 22. The accused convict being dissatisfied with the judgment and order passed by the Trial Court, went in appeal before the High Court by way of Criminal Appeal No. 524 of 2004. The High Court vide its impugned final judgment and order dated 29. 06.

2010 allowed the appeal and acquitted the respondent accused. The impugned judgment and order of the High Court is in three-parts. In other words, the High Court allowed the appeal of the accused and set aside the Trial Court's order of conviction on three grounds: - (i) First, the High Court held that although PW6 was found to be competent to depose, yet her testimony appeared to be very shaky not inspiring confidence, more particularly, in view of the inordinate delay of 18-days in recording her police statement under Section 161 Cr. P. C. The High Court took the view that the Investigating Officer (for short, the "I. O. ") was aware that PW6 was a very important witness, yet for reasons unknown, her statement was not recorded immediately. Considering the delay, the High Court took the view that the possibility of tutoring cannot be ruled out, more particularly, since PW6 was at that time residing with PW3 i. e. , the Complainant who is at inimical terms with the accused.

It also held that even in the morgue inquiry report, PW6 never mentioned anything that would point a 868 finger against the accused herein, thus, reinforcing the fact that PW6 had been tutored, as otherwise she would have mentioned about the accused killing the deceased in the said report, and this explains why PW6 had earlier simply stated that "her mother had died". The relevant observations read as under: - "15. In the present case, from the testimony of the sole eye-witness Rani who has been examined as PW6 and who is daughter of the deceased and appellant, it is borne out that at the relevant point of time her age was seven years. We have no scintilla of doubt that the child witness is competent witness and his/her evidence cannot be thrown out just like a waste paper in a dustbin, merely because the witness happened to be a child witness, but, it is equally true that the testimony of the .

child witness should be found to be clear, cogent and trustworthy and he or she should not have been tutored or her testimony should not be unnatural. By keeping this proposition in our mind we would like to scan the testimony of this witness Rani (PW. 6). 16. [... ] The case diary statement of this witness (Ex. D. 2) was recorded on 3. 8. 2003 viz. after 18 days of the incident. At this juncture, we would like to mention that on the very next date of the incident i. e. 16. 7. 2003 it already came into the knowledge of the investigating agency that after enquiring the incident by complainant Bhura alias Yashpal (PW. 3) from this child withess the merg report (Ex. P. 7) was lodged at 9:45 AM. Hence, why the statement of this witness was not recorded earlier to it, we are unable to digest. The case diary statement (Ex. D. 2) of this witness was recorded after considerable long period on 3. 8.

2003, and hence, it cannot be ruled out that this child witness was tutored particularly when she was residing with her maternal uncle and it is borne out from the testimony of complainant Bhura alias Yashpal (PW. 3) who is also the maternal uncle of this witness that they are in inimical terms with the appellant. The State of Madhya Pradesh v. Balveer Singh 17. [... ] Since it is borne out from the testimony of complainant Bhura alias Yashpal (PW. 3) that there is enmity between appellant and his in-laws and the case · diary statement (Ex. D. 2) of Rani (PW. 6) was recorded on 3. 8. 2003 at the residence of' her maternal grandfather, according to us, the possibility of tutoring her cannot be ruled out, and therefore, according to us, it would be hazardous to place reliance on the statement of this witness and to convict the appellant on her solitary statement. [... ] xxx xxx xxx 19. [... ] Bhura alias Yashpal (PW.

3) (who is in inimical terms with appellant) has stated in the merg report that he saw appellant and his family members cremating the deceased at 3:00 in the late night and thereafter he went to the house of the appellant and enquired from the child witness Rani (PW. 6) that what has happened and this much only was told by her that her mother had died. Nowhere in the merg report it has been mentioned that Rani (PW. 6) has stated anything accusing the appellant since it did not find place in the merg report. For this reason also we find that if the case diary statement (Ex. D. 2) of Rani (PW. 6) was recorded on 3. 8. 2003 she was already tutored because if she would have stated of the same night that appellant had killed the deceased, certainly this fact should have· been mentioned in the merg report.

" (Emphasis supplied) (ii) Secondly, the High Court observed that although the police had recorded PW6's statement during the morgue inquiry immediately after the incident, yet the accused never came to be arrested on the strength of the said statement. It further observed that the respondent accused came to be arrested on 22. 08. 2003, only after the statement of PW6 had been recorded under Section 161 of the Cr. P. C. on 03. 08. 2003. This according to the High Court indicates that prior to 03. 08. 2003 there was no evidence against the accused sufficient enough to effect his 870 arrest. This necessarily would lead to a legitimate inference that the statement of PW6 recorded during the morgue enquiry must have been unfavourable to the prosecution & therefore, was suppressed during the trial. The relevant observations read as under: - "17. In the present case the appellant was arrested on 22. 8.

2003 as it is borne out from the judgment of the learned Trial Court, and therefore, according to us till 3. 8. 2003 thee was no material and evidence against the appellant with the investigating agency to arrest him. It is borne out from the testimony of the investigating officer that the merg statements were recorded and, according to us, since the appellant was arrested only on 22. 8. 2003 and earlier to the statement recorded under section 161 of Cr. P. C. of Rani (PW. 6) on 3/8/2003, there was no evidence against the appellant with the investigating agency, and therefore, in these state of . affairs, according to us, the merg statements were quite relevant and the same have been suppressed by the investigating agency because they must be, against the prosecution. [...

]" (Emphasis supplied) (iii) Lastly, the High Court held that apart from the oral evidence of PW6, being unreliable there were other reasons to extend the benefit of doubt to the accused, more particularly the contradictions in the form of material omissions in the testimony of PW3 and the fact that he was at inimical terms with the accused. It observed that the PW3 when confronted with his statement in the morgue report, he denied having stated that he went to the house of the accused at 3:00 AM in the night. He had further stated that during the cremation of the deceased, the other inhabitants of the village were also present and that none of them entertained any doubt over the death of the deceased nor did he interact with the accused. Thus, the High Court took the view that it was difficult to hold that the deceased had been cremated in the night or that she had been killed by the accused. Furthermore, placing reliance on the testimony The State of Madhya Pradesh v.

Balveer Singh of PW1 and PW2, the High Court held that it is equally difficult to hold that the Complainant could have heard the screams of the deceased, particularly considering the distance between his house and that of the accused. The relevant observations read as under: - "20. [... ] Later-on in the same para this witness says that at 6:00 in the morning he went to the field of appellant along with his father, but they never interacted with appellant that how the deceased had died. In very specific words this witness has stated that earlier to 6:00 AM he did not go to the ' house of appellant where he was informed by the child witness Rani (PW. 6) that the deceased had died. In very specific words this witness is saying that he did not go in the night at 3:00 to the house of appellant and he never saw his sister (the deceased) · being cremated in the field. [... ] This witness was confronted with his merg report (Ex. P.

7) and he admitted that it bears his signature, however, ,he has specifically stated that in the merg report (Ex. P. 7) he did not state to the police that at 3:00 in the night he went to the house of the appellant and if such type of statement is written in the merg report he cannot say how it has been written. Further he says that he did not . inform the police personnels that he made enquiry from the child witness Rani (PW. 6) at 3:00 in the night [... ] 21. Hence, it is difficult to hold that during the odd ' hours in the night the deceased was cremated. If the testimony of complainant Bhura alias Yashpal (PW. 3) is taken into consideration in proper perspective it is difficult to hold that during the odd hours in the night the deceased was cremated and she was not cremated during the dawn hours.

It is also borne out from the testimony of this witness that during the cremation the inhabitants of the village were also present because specifically he is saying that when the deceased was being cremated no dispute raised 872 by the inhabitants of the village [... ] And therefore, if the deceased was cremated in presence of inhabitants of the village, it is difficult to hold that the deceased was killed by the appellant. 22. The testimony of complainant Bhura alias Yashpal (PW. 3) who keep inimical terms with the appellant is further more doubtful because in his statement he has admitted that he heard the sound of hue and cry during the late hours at 12:00 in the night in his house which is 4 to 5 furlongs far away from the house of appellant. In this context, para 4 of the cross examination of this witness may be seen. But, if this piece of evidence of this witness is kept in juxtaposition to the testimony of independent eye witness Narayan (PW.

2) who is village chowkidar, who in para 2 of his cross-examination has categorically stated that the distance between the house of appellant and the complainant Bhura Singh alias Yashpal is 5 to 6 furlongs and if somebody would shout from the house of appellant the persons residing in the · house of appellant the persons residing in the house of complainant Bhura alias Yashpal would not hear the sound. It is borne out from the testimony of Patwari of the village namely Mahesh Kumar Mishra (PW. 1) as well as Narayan (PW. 2), who is chowkidar of the village that village people happen to cremate the dead body in the field itself and because there is no separate cremation ground, and therefore, if the deceased was cremated' in the field it was not an unnatural act. " (Emphasis supplied) 23. In such circumstances, referred to above, the appellant State is here before this Court with the present appeal. C. ANALYSIS 24.

Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that The State of Madhya Pradesh v. Balveer Singh falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order. i. Evidence of Child Witness and Test for parsing Tutored Testimony. 25. The High Court, while setting aside the conviction, found the testimony of the child witness, Rani (PW6), to be unreliable and tutored. Before we proceed to undertake the analysis of PW6, Rani's oral evidence it is essential to understand how the testimony of a child witness should be looked into and appreciated. 26. The 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. 27. In Dattu Ramrao Sakhare v. State of Maharashtra reported in (1997) 5 SCC 341 this Court held that as long as a child witness is found to be competent to depose i. e. , capable of understanding the questions put to it and able to give rational answers, the testimony of such witness can be considered