Observing that utmost care should be taken while considering evidence of child witness as they might be tutored,the Bombay High Court has set aside life sentence awarded to a 28-year-old mother of five daughters and her two neighbours on charges of killing her husband.
“Looking at the facts and circumstances of this case and that there is inordinate delay in lodging FIR for which no reasonable or plausible explanation has been given by the prosecution,we are inclined to give benefit of doubt to the three accused,” said justices P D Kode and V K Tahilramani in their recent order.
The judges took into account the evidence of Pooja,the ten-year-old daughter of the couple,whom the prosecution had cited as an eye witnesses.
Bindu,a housewife,and Nanhelal Gupta had five daughters,including Pooja. The family lived in Bhayander. Accused Lambu alias Motilal Prajapati and Chinnu alias Mainuddin Mustafa Ansari were staying in a nearby bakery and often visited
Nanhelal’s house on invitation of Bindu. Due to this,there was always a quarrel between husband and wife,according to prosecution.
On October 27,2006,Bindu called Lambu and Chinnu to her house. The duo saw Nanhelal and Lambu throttled him while Chinnu caught hold of his legs. As a result,Nanhelal died,they alleged.
The prosecution claimed that this was witnessed by Pooja. However,Bindu told her not to disclose the presence of Lambu and Chinnu to anyone and just say that thieves had entered their house. She told Pooja to visit the house of her cousin Mahendra Gupta and inform him. Accordingly,Pooja went to him and narrated the story.
Later,Bindu and her two neighbours were arrested by police. The trio was convicted by a lower court on charges of murder and sentenced to life imprisonment on November 18,2009 following which they moved the High Court through lawyer Arfan Sait.
The high court held that the prosecution has not proved the case against the appellants beyond reasonable doubt and questioned its claim that Pooja,”the only evidence on which the prosecution is relying upon” was an eye witness when she
had categorically stated that she did not know how her father was killed as she was sleeping at that time.
The judges said,”we are of the opinion that the prosecution has not proved its case against the appellants beyond reasonable doubt. There is no evidence of any recovery or seizure in relation to any of the appellants. The only evidence on which the prosecution is relying upon,is that of Pooja,who,according to prosecution,is an eye witness.”
The judges said they found it unsafe to rely upon Pooja’s evidence because she had stated that on the day of the incident she went to bed at 9.30 PM and when her father came to the house she was fast asleep. It would be pertinent to note that the incident occurred at 2 AM.
The judges noted that Pooja had not said she got up at 2 AM after hearing noise or shouts. Thus,it appears that Pooja continued sleeping and had not witnessed any incident.
This was fortified by the evidence given by Pooja when a direct question was to put to her. In her reply,the ten-year-old girl said she not aware about the incident with her father in the night as she was sleeping at that time.
“The evidence of child witness thus requires to be scrutinised carefully because such witness is susceptible to tutoring. In this case,the evidence of Pooja shows that she has not actually witnessed the incident,” the bench observed.
“Pooja has categorically admitted that Mahendra brought her to the court. She has also admitted that she was staying with Mahendra. Thus,it appears that this witness was under the influence of Mahendra,” the judges said.
Moreover,when Pooja went to Mahendra’s house to inform about the incident,he lodged the FIR on the next morning. He is residing in a city like Mumbai,hence,the police station could not have been very far from his house.
In such a case,the delay on his part in lodging the FIR raises serious doubt about genuineness of the prosecution case,the bench said.
No reasonable or plausible explanation has been put forward by the prosecution for Mahendra not immediately lodging the FIR,the judges observed.