SMT. SHAMIMversusSTATE (GNCT OF DELHI)

                       [2018] 11 S.C.R. 677                             677


                          SMT. SHAMIM                                   A
                                 v.
                    STATE (GNCT OF DELHI)
                  (Criminal Appeal No. 56 of 2018)
                                                                        B
                      SEPTEMBER 19, 2018
[RANJAN GOGOI, NAVIN SINHA AND K. M. JOSEPH, JJ.]
       Penal Code, 1860 – ss.302/307/34 – Appellant-accused
strongly opposed the marriage between her daughter (PW-4) and           C
PW-1 – Brother and mother of PW-1 shot dead on the first floor of
their house – Appellant’s acquittal reversed by High Court –
Propriety of – Held: PW-4 is the daughter of the appellant – PW-4
deposed that soon after the occurrence, the appellant told her that
she got the brother and mother of PW-1 killed because PW-4 did
not listen to her and that PW-1 would be killed next– In a criminal     D
trial, normally the evidence of the wife, husband, son or daughter
of the deceased, is given great weightage on the principle that there
is no reason for them not to speak the truth and shield the real
culprit – There is no reason why the same principle cannot be applied
when such a witness deposes against a closely related accused –         E
According to normal human conduct, a witness would tend to shield
and protect a closely related accused– It would require great
conviction and moral strength for a daughter to depose against her
own mother who is an accused – PW-4’s statement can be considered
as a corroborative evidence being a voluntary extra judicial
confession, considering the nature of relationship between the          F
witness and the appellant – PW-3 (brother of PW-1) saw the
appellant and the other accused with blood stained clothes –A blood
stained lock and key and Chunni of the appellant was also recovered
on confession of the appellant – PW-2 (sister of PW-1) was also a
reliable witness to the occurrence – No merit in the appeal– However,   G
High Court’s direction denying the benefit of remission to the
appellant till she completes twenty-five years of custody is
unsustainable– Impugned judgment set aside to that extent only–
Sentencing.

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                                      677
678           SUPREME COURT REPORTS                     [2018] 11 S.C.R.


A           Evidence – Injured witness – Appreciation of – Discussed.
            Criminal Trial – Witness – Minor contradictions in evidence
      of – Effect of– Discussed.
            Criminal Trial – Duty of a Judge – Discussed.
B           Allowing the appeal to an extent, the Court
             HELD: 1.1 In a criminal trial, normally the evidence of the
      wife, husband, son or daughter of the deceased, is given great
      weightage on the principle that there is no reason for them not to
      speak the truth and shield the real culprit. There is no reason
C     why the same principle cannot be applied when such a witness
      deposes against a closely related accused. According to normal
      human behavior and conduct, a witness would tend to shield and
      protect a closely related accused. It would require great courage
      of conviction and moral strength for a daughter to depose against
      her own mother who is an accused. There is no reason why the
D     same reverse weightage shall not be given to the credibility of
      such a witness. PW-4 is the daughter of the appellant. She deposed
      that two days prior to the occurrence, the appellant had threatened
      the witness to leave PW-1 else she would get his family members
      killed. Soon after the occurrence, having reached the house of
E     her in-laws, PW-4 stepped out on the verandah. The appellant
      who was standing on her own verandah told her that she got the
      deceased killed because the witness did not listen to her and
      that her husband would be killed next. In cross-examination she
      reiterated the same. The statement can be considered as a
      corroborative evidence being a voluntary extra judicial confession,
F     considering the nature of relationship between the witness and
      the appellant. PW-3 (brother of PW-1) deposed that while
      returning home at about 10.30 PM, he saw the appellant and the
      other accused coming out of his house with blood stained clothes
      and they proceeded towards the house of the appellant. A little
G     later the other accused came out from the house of the appellant
      and went away towards the lane. The witness reiterated the same
      in his cross examination. A blood stained lock and key has also
      been recovered on confession of the appellant. [Paras 9, 10]
      [682-G-H; 683-A-E]

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          SMT. SHAMIM v. STATE (GNCT OF DELHI)                          679


       1.2 PW-2 (sister of PW-1) was an injured witness whose           A
throat was slit in the occurrence. The evidence of an injured
witness carries great weight as it is presumed that having been a
victim of the same occurrence, the witness was speaking the truth.
Notwithstanding the grueling nature of her cross examination,
she withstood the same tenaciously. There may be some
                                                                        B
inconsistencies in her evidence, minor and trivial in nature. But
that cannot erase her credibility as a reliable witness to the
occurrence. She deposed that the appellant came upstairs after
the deceased persons had been shot dead by the other accused.
While the accused were leaving, the appellant tripped over the
witness. The blood stained ‘Chunni’ of the appellant discovered         C
the next day on her confession, therefore stands explained. While
appreciating the evidence of a witness, the approach must be
whether the evidence of the witness read as a whole inspires
confidence. Minor discrepancies on trivial matters not touching
the core of the case, hypertechnical approach by taking sentences
                                                                        D
torn out of context here or there from the evidence, attaching
importance to some technical error without going to the root of
the matter would not ordinarily permit rejection of the evidence
as a whole. Minor omissions in the police statements are never
considered to be fatal. The statements given by the witnesses
before the police are meant to be brief statements and could not        E
take place of evidence in the court. Small/trivial omissions would
not justify a finding by court that the witnesses concerned are
liars. The prosecution evidence may suffer from inconsistencies
here and discrepancies there, but that is a shortcoming from which
no criminal case is free. The main thing to be seen is whether
                                                                        F
those inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof. In the former case, the defence may
be justified in seeking advantage of incongruities obtaining in
the evidence. In the latter, however, no such benefit may be
available to it. [Paras 11-12] [683-E-H; 684-A-E]
      1.3 Each criminal trial is but a quest for search of the truth.   G
The duty of a judge presiding over a criminal trial is not merely
to see that no innocent person is punished, but also to see that a
guilty person does not escape. One is as important as the other.

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680            SUPREME COURT REPORTS                       [2018] 11 S.C.R.


A     Both are public duties which the Judge has to perform. The trial
      court had erred and misappreciated the evidence to arrive at an
      erroneous conclusion. Further, the appellant was convicted with
      the aid of Section 34 I.P.C., there appears no justification to single
      her out for differential treatment for sentencing. In any event the
      High Court has not ascribed any special reasons for the same.
B
      Therefore, the direction for denial of remission to the appellant
      for twenty-five years is unsustainable. The judgment is set aside
      to that extent only. [Paras 15, 16] [685-F-H; 686-A]
            State of U.P. v. Krishna Master & Ors. (2010) 12 SCC
            324 : [2010] 9 SCR 563 – relied on.
C
            Chandrappa & Ors. v. State of Karnataka (2007) 4 SCC
            415 : [2007] 2 SCR 630 – referred to.
                             Case Law Reference
      [2007] 2 SCR 630                referred to              Para 6
D
      [2010] 9 SCR 563                relied on                Para 14
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 56 of 2018
            From the Judgment and Order dated 10.08.2015/Order on
E     Sentence dated 12.08.2015 of the High Court of Delhi at New Delhi in
      Criminal Appeal No. 354 of 2015
            Abhay Kumar, Saurabh Mishra, Vineet Kr. Singh, Himanshu Pal
      Singh, Ms. Shefali Vohra, Advs. for the appellant.
            Ms. Geetha Luthra, Sr. Adv., P. K. Dey, T. A. Khan, Bharat Singh,
F     Ujjwal Jain, Ms. Shivani Luthra Lohiya, Karan Nagrath, B. V. Balaram
      Das, Advs. for the respondent.
            The Judgment of the Court was delivered by
            NAVIN SINHA, J. 1. The appellant has been convicted by the
G     High Court under Sections 302/307/34, I.P.C. and sentenced to life
      imprisonment, after reversing her acquittal ordered by the trial court.
      The appellant has further been denied the benefit of any remission in
      sentence, till she completes twenty-five years of custody.
            2. The Trial Court convicted four of the seven accused and
      acquitted the appellant and two others. The High Court dismissed the
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           SMT. SHAMIM v. STATE (GNCT OF DELHI)                                681
                    [NAVIN SINHA, J.]

appeals against convictions, declined to interfere with the acquittals, with   A
the exception of the appellant.
       3. On 27.03.2006 at night, Pappu and Anisha (hereinafter referred
to as ‘the deceased’) were shot dead on the first floor of their house.
PW-2, Heena suffered multiple injuries on her neck with a razor. The
deceased and PW-2 are the brother/mother/sister respectively of PW-1,          B
Ishrat Ali. PW-4, Shabnam is the daughter of the appellant, who married
PW-1, against the wishes of the appellant. PW-3, Md. Imran is the brother
of PW-1. The parties resided in houses across each other with common
topography, divided by a lane 5 to 6 feet wide. PW-1 and PW-4 after
their marriage had shifted to a separate residence. PW-3 upon returning
home saw the appellant standing outside his house, followed by the other       C
accused coming out of the house with blood stained clothes. The witness
entered the house to find the corpses and PW-2 in an injured condition
unable to speak, and informed PW-1 and PW-4 who then came to the
spot. Earlier, in the evening, PW-2 had noticed the appellant standing on
the verandah of her own house looking towards the house of the witness.        D
PW-4 stepped out on the verandah when the appellant told her that the
incident was the consequence of the witness not listening to her, and
that she had got the deceased killed and her husband will meet the same
fate.
      4. The Trial Court convicted four accused under Sections 449/            E
302/307/34 and awarded life imprisonment. The appellant was acquitted
on benefit of doubt with regard to her presence, failure to recover her
blood stained ‘chunni’ and lack of any evidence with regard to conspiracy.
        5. The High Court in appeal against her acquittal, after
reappreciation of evidence ascribed motive to the appellant, being             F
perturbed and strongly opposed to the marriage between PW-4 and PW-
1. The evidence of PW-2, the injured witness was considered credible
and reliable coupled with the recovery the next day of blood-stained
lock and key and the appellant’s ‘chunni’ with blood stains on it pursuant
to the disclosure made by the appellant. The appellant was thus convicted
in like manner under Sections 302/307/34, I.P.C.                               G
       6. Learned counsel for the appellant referring to the evidence of
the prosecution witnesses contended that none of them has spoken having
seen blood on the clothes of the appellant. There was no material to
conclude a common intention on part of the appellant as it had not been
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682             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A     conclusively established that she was present during the assault.
      Considering that the houses were located opposite each other across
      the lane, the presence of the appellant on her own verandah before and
      after the occurrence was but natural and cannot lead to any inference
      of guilt. The appellant could not have been simultaneously present at
      the place of occurrence and her own house. Merely standing outside the
B
      house of the deceased cannot be sufficient to infer common intention.
      PW-2 is unreliable as her statement was recorded late and she has made
      many additions and alterations to her original statement including
      contradictions. If on appreciation of the same evidence the trial court
      had arrived at a possible view to acquit the appellant, the High Court on
C     a reappreciation of the same evidence ought not to have convicted the
      appellant. Reliance was placed on Chandrappa & Ors. vs. State of
      Karnataka (2007) 4 SCC 415. The test of rarest of rare cases should
      have been applied and the appellant ought not to have been denied the
      benefit of remission before twenty-five years.
D            7. Learned senior counsel appearing for the State submitted that
      the order of the High Court is well considered and reasoned based on
      reappreciation of the evidence. PW-4, the daughter of the appellant had
      deposed against her own mother. PW-2 was an injured witness whose
      credibility had to be high. The presence of the appellant has been
      established by the evidence of PW-2 and PW-3. The disclosure made
E     by the appellant has led to recovery of the blood stained lock and key, as
      also her ‘chunni’ with blood stains on it. The conclusion of the trial court
      to the contrary has been found to be perverse.
            8. We have considered the submissions on behalf of the parties
      and perused the materials and evidence on record. The High Court has
F     elaborately discussed the cautions and limitations to be kept in mind by
      an appellate court while interfering with an order of acquittal, inter alia
      with reference to Chandrappa (supra). We therefore see no reason
      to burden our order by repetition with the said discussion.
             9. In a criminal trial, normally the evidence of the wife, husband,
G     son or daughter of the deceased, is given great weightage on the principle
      that there is no reason for them not to speak the truth and shield the real
      culprit. We see no reason why the same principle cannot be applied
      when such a witness deposes against a closely related accused.
      According to normal human behavior and conduct, a witness would tend
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           SMT. SHAMIM v. STATE (GNCT OF DELHI)                              683
                    [NAVIN SINHA, J.]

to shield and protect a closely related accused. It would require great      A
courage of conviction and moral strength for a daughter to depose against
her own mother who is an accused. There is no reason why the same
reverse weightage shall not be given to the credibility of such a witness.
PW-4 is the daughter of the appellant. She has deposed that two days
prior to the occurrence the appellant had threatened the witness to leave
                                                                             B
PW-1 else she would get his family members killed. Soon after the
occurrence having reached the house of her in-laws she stepped out on
the verandah. The appellant who was standing on her own verandah
told the witness that she had got the deceased killed because the witness
did not listen to her and that her husband would be killed next. In cross-
examination she reiterated the same. The statement, in our opinion, can      C
be considered as a corroborative evidence being a voluntary extra judicial
confession, considering the nature of relationship between the witness
and the appellant.
       10. PW-3 has deposed that while returning home at about 10.30
PM he had seen the appellant and the other accused coming out of his         D
house with blood stained clothes and they proceeded towards the house
of the appellant. A little later the other accused came out from the
house of the appellant and went away towards the lane. The witness
has reiterated the same in his cross examination and has also specifically
denied the suggestion that the appellant was not seen coming out from
the house of the witness. A blood stained lock and key has also been         E
recovered on confession of the appellant.
       11. PW-2 is an injured witness whose throat was slit in the
occurrence causing loss of voice requiring hospitalization for two months.
The evidence of an injured witness carries great weight as it is presumed
that having been a victim of the same occurrence the witness was             F
speaking the truth. She has deposed that the appellant came upstairs
after the deceased persons had been shot dead by the other accused.
On the exhortation of the appellant accused Naushad, brother of PW-
4, again assaulted the witness on her throat with the razor. While the
accused were leaving the appellant tripped over the witness. The blood       G
stained ‘Chunni’ of the appellant discovered the next day on her
confession, therefore stands explained.
      12. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole inspires
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684             SUPREME COURT REPORTS                           [2018] 11 S.C.R.


A     confidence. Once that impression is formed, it is undoubtedly necessary
      for the court to scrutinise the evidence more particularly keeping in view
      the deficiencies, drawbacks and infirmities pointed out in the evidence
      as a whole and evaluate them to find out whether it is against the general
      tenor of the evidence and whether the earlier evaluation of the evidence
      is shaken as to render it unworthy of belief. Minor discrepancies on
B
      trivial matters not touching the core of the case, hypertechnical approach
      by taking sentences torn out of context here or there from the evidence,
      attaching importance to some technical error without going to the root of
      the matter would not ordinarily permit rejection of the evidence as a
      whole. Minor omissions in the police statements are never considered to
C     be fatal. The statements given by the witnesses before the police are
      meant to be brief statements and could not take place of evidence in the
      court. Small/Trivial omissions would not justify a finding by court that
      the witnesses concerned are liars. The prosecution evidence may suffer
      from inconsistencies here and discrepancies there, but that is a
      shortcoming from which no criminal case is free. The main thing to be
D
      seen is whether those inconsistencies go to the root of the matter or
      pertain to insignificant aspects thereof. In the former case, the defence
      may be justified in seeking advantage of incongruities obtaining in the
      evidence. In the latter, however, no such benefit may be available to it.
              13. PW-2 was a minor student witness aged about thirteen years.
E     She broke down during her evidence and cross examination recalling
      the occurrence. Her cross examination had to be deferred on more
      than one date. Notwithstanding the grueling nature of her cross
      examination which runs into approximately 14 pages she withstood the
      same tenaciously. Her presence at the place of occurrence and injury
F     caused during the occurrence has stood unshaken. The appellant was
      the only woman present. The question for confusion of identity simply
      does not arise. The witness in her cross examination specifically denied
      having been tutored, and from her evidence we find no reason to disbelieve
      her. There may be some inconsistencies in her evidence, minor and
      trivial in nature. But that cannot erase her credibility as a reliable witness
G     to the occurrence.
             14. In State of U.P. vs. Krishna Master & Ors., (2010) 12 SCC
      324, disagreeing with the High Court which had doubted the credibility
      of a child witness,it was observed:

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           SMT. SHAMIM v. STATE (GNCT OF DELHI)                                685
                    [NAVIN SINHA, J.]

      “36. …… This Court fails to understand as to on what principle           A
      and on which experience in real life, the High Court made a
      sweeping observation that it is inconceivable that a child of Madan
      Lal’s understanding would be able to recapitulate facts in his
      memory witnessed by him long ago. There is no principle of law
      known to this Court that it is inconceivable that a child of tender
                                                                               B
      age would not be able to recapitulate facts in his memory witnessed
      by him long ago. This witness has claimed on oath before the
      Court that he had seen five members of his family being ruthlessly
      killed by the respondents by firing gunshots. When a child of tender
      age witnesses gruesome murder of his father, mother, brothers,
      etc. he is not likely to forget the incident for his whole life and      C
      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 of his evidence.
      37. This Court is of the firm opinion that it would be doing injustice
      to a child witness possessing a sharp memory to say that it is           D
      inconceivable for him to recapitulate facts in his memory witnessed
      by him long ago. A child of tender age is always receptive to
      abnormal events which take place in his life and would never
      forget those events for the rest of his life. The child would be able
      to recapitulate correctly and exactly when asked about the same
      in future. Therefore, the specious ground on which the reliable          E
      testimony of PW 2 Madan Lal came to be disbelieved can hardly
      be affirmed by this Court.”
       15. Each criminal trial is but a quest for search of the truth. The
duty of a judge presiding over a criminal trial is not merely to see that no
innocent person is punished, but also to see that a guilty person does not     F
escape. One is as important as the other. Both are public duties which
the Judge has to perform. The trail court had erred and misappreciated
the evidence to arrive at an erroneous conclusion.
       16. Sentencing has always been a vexed question as part of the
principle of proportionality. The issue however need not detain us further     G
as once the appellant has been convicted with the aid of Section 34
I.P.C. there appears no justification to single her out for differential
treatment for sentencing. In any event the High Court has not ascribed
any special reasons for the same. We are therefore unable to sustain the
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686            SUPREME COURT REPORTS                        [2018] 11 S.C.R.


A     direction for denial of remission to the appellant for twenty-five years
      and set aside the judgement to that extent only.
             17. Consequentially we find no merit in the appeal except to the
      extent indicated.
            18. The appeal is allowed only to the extent indicated.
B

      Divya Pandey                                     Appeal allowed to an extent.




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G




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