D.R. Khanna, J.
(1) Prem Shankar Sachhan alias Prem Shankar Thakur, aged about 22 years of village Nonaptor, District Kanpur (U. P.), stands convicted under section 302 of the Indian Penal Code for having committed the murder of Smt. Ved Khanna, aged about 53 years, on the night between 5th and 6th October, 1977, at her residence at No. 89, Darya Ganj, Delhi. The sentence awarded was imprisonment for life. He was also sentenced under section 342 I. P. C. for having wrongfully confined her maternal grand-son Sumedh Bhardwaj (P.W. 1) in a room of the said house to two months' rigorous imprisonment.
(2) The prosecution case has been that Mr. P. L. Khanna (P. W. 12) and his wife late Smt. Ved Khanna resided at No. 89 Darya Ganj, Delhi. They had a retinue of employees attending to house-hold and other duties. Their son Sharan Khanna (P. W. 13) also resided in the same property, but he had separate set of servants. On the night of occurrence, be was not at Delhi but had gone to Bombay. His employee Narinder Singh alias Nainu (P. W. 4), however, was left behind in the house.
(3) Shri P. L. Khanna has a daughter who had gone to Chicago, U.S.A., to join her husband there some months before the occurrence. She left behind her son named Sumedh Bhardwaj, aged 7 years, with her parents as he was studying in IInd standard of St. Columbus School. New Delhi. In order to look after Sumedh, an Ayah named Adarsh Mathur (P.W. 14) had been engaged. She was 20 Years of Age. She used to sleep in the room where Sumedh slept. She, however, decided to get married on 8-10-1977, and, thereforee, wanted that she should he released from the service. An advertisement was, thereforee, issued by the Khannas In Nav Bharat Times of 29th September, 1977, which is Ex. Public Witness 12]A, seeking services of inexperienced Ayah servant who could look after and keep company with a seven years old child. He was expected to know some reading and writing. In response thereto, the appellant approached them on the afternoon of the same date, and stated that though he had no experience of looking after children, he was a graduate and had been working at a dhaba at Rs. 30 per month with a single meal a day. Mr. P. L. Khanna, however, told him that without verification of his antecedents he could not be engaged, and asked him to leave. On the next afternoon, the appellant again called on them and brought his certificates and photo- graph. Mrs. Ved Khanna then interviewed him and ultimately engaged him at Rs. 70 per month with free board and lodging.
(4) On 2-10-1977, Mr. P.L. Khanna left for MuMorric as their house was under construction there, leaving behind his wife and Sumedh. On 3rd and 4th there was a telephonic talk between Mrs. Ved Khanria and Mr. P. L. Khanna, in which the for- mer apprised him that Ra]'u Phillips, one of the servants employed by them was not up to the mark, and enquired whether she shciild allow him to continue in the job. He told her that he should be paid off. Raju Phillips, thereforee, left on 4-10-1977. Mrs. Ved Khanna had also informed Mr. P. L. Khanna that Adatsh Ayah also wished to leave on 4-10-1977 on which the latter told her why she could not stay till his return on 6-10-1977.
(5) Adarsh, however, left the job on the morning of 4-10-1977. She as Public Witness 14 stated that when ^he appellant had joined service as a servant, he had told her on her enquiry as to why he had so taken up the employment, that his father had been murdered due to some property dispute, and on that score his mind was upset and he had to leave his house and join such petty jobs. He gave his address of Kanpur to her and also said that he was aplayerof'kabaddi'.
(6) On the evening of 5th October, 1977, there was a dinner party at the house of the sister of Mrs. Ved Khanna at 9. Panchsheel Park, New Delhi. Mrs. Ved Khanna, Sumedh and the appellant then went there in a car driven by Slikh Dev Singh (P.W. 3). The dinner was attended by a large number of invitee Sukh Dev Singh and the appellant, however, were served their meals outside. At that time Shanti Devi (P.W. 11 ), an Ayah of another invitee, who was a common, relation, was present. The appellant then enquired how his Mem Sahib (Mrs. Ved Khanna) was Sukh Dev told him that she was a strict lady, and he must have come to know of that during his employment of four-five days. The appellant then said 'MEM Sahib Ke Pass Bahut Jewellery Hai Aur Mem Sahib Bahut Paise Wali HAIN' (Mem Sahib must be possessed of a lot of jewellery, and she must be very rich). To this Sukh Dev nodded in the affirmative. Shanti Devi has gone further to depose that the appellant even then said that he would murder her, and take away all the jewellery along with him. She then told him that he should not behave like a 'NAMAK HARAM'. The appellant further told her that his father was a notorious dacoit who had been murdered, and that his brother was a police employee at Jhansi. This part of the deposition of Shanti appears to be an exaggeration as none such was stated by her in her statement before the police. Sukh Dev also had nothing to say about that.
(7) Smt. Ved Khanna, Sumedh, Sukh Dev and the appellant returned from that party at about 11 or 11.30 p.m'. Smt. Ved Khanna then retired to her bed room which was on the ground floor, while Sumedh and the appellant slept in another bed-room on the ground floor. The other servants in the house, namely, Public Witness 2 Raj Mani (who had been employed from 29-9-1977), Public Witness 3 Sukh Dev Singh (who had been in service .as a driver from February, 1977) and Public Witness 4 Narinder Singh, alias Nainu (who had been employed from July, 1977 with Sharan Khanna the son of P. L. Khanna in the same house) went upstairs as their rooms were on the upper Boor. The construction of the house was such that with the closure of the main gate of the court-yard,the entire house stood locked. The stairs for going up Were outside this main gate. It was through those stairs that the servants went up. Raj Mani was the last to go after locking the main gate from outside. Those locks were mostly lever locks affixed in the doors of the house. There was another door leading to the back lane from the office situated on the ground floor. The Khannas were keeping a mixed breed Alsatian dog as well. Mrs. Ved Khanna on her part dosed the door of her bed-room from inside, while the appellant did the same of the room in which he and Sumedh slept.
(8) According to Sumedh, at about mid-night, he woke up on hearing noise raised by his maternal grand-mother Ved Khanna, and then found the appellant giving her beating and tying her up. He then gave a kick to the appellant who, however, picked up a small hammer which was lying nearby, and hit him on his left eye-brow and little finger of the left hand. He then cried and raised an alarm. The appellant then went out and shut the door from outside. He tried to. knock the door from inside, but none could hear him. He also tried to call his grand-mother 'Mama Mama', but there was no response. At that time, according to him, the light and the fan were on.
(9) In the morning at about 6.45 a.m., Raj Mani came down from upper floor, and after opening the main gate prepared lemon water for Mrs. Ved Khanna. He knocked her door, but finding no response, kept the lemon water in the refrigerator. He then dusted the kitchen and the office. Similarly Sukh Dev Singh, driver had also come down as he had to drive Sumedh to the school at about 7.30 a.m. Finding Sumedh had not got up from the sleep and came out of the room, he went to the market for taking tea and returned shortly thereafter. In the meanwhile, they heard Sumedh shouting from inside his room 'Mani Mani Darwaza Kholo, Prem Thakur Nein Mem Sahib Ke Haath Pair Baadh Diye Hain Aur Prem Shankar Thakur Darwaja Band Kar Ke Bhag Gaya Hai' (Mani, the door should be opened, Prem Thakur had after tying the hands and feet of Mem Sahib and closing the door, run away). Raj Mani then called Narinder Singh who then telephoned Col. A. K. Khanna (P. W. 5) a brother of P. L. Khanna, who was residing in Nizamuddin, and apprised him of what Sumedh had been shouting from inside the room. Col. Khanna then gave the telephone number of his brother Lt. Gen. M. M. Khanna (P. W. 20) residing in defense Colony. Narinder Singh then rang up Lt. Gen. M. M.Khanna who was then going to take his break-fast. The time was about 8.00 a.m. On receiving the telephone which was to the effect 'Sumedh Sahib andar Chilla Raba Hai Ki Mama Ko Prem Shankar Ne Maar Diya Hai, Aur Bahar Se Darwaza Band Hai, Aur Prem Nabin Hai Ghar Main'. (Sumedh Sahib was shouting from inside that Prem Shankar after killing Mama and closing the door from outside had gone away).He then told Nainu that he would be reaching shortly, and that in the meanwhile he should break open the door. As such, the servants pushed the door inside resulting in its latch-lock giving way along with screws Ex. P. 11 and Ex. P. 12. What they found inside was that Ved Khanna was lying tied at her hands, feet and neck, with face downward. Prem Shankar was not there, but his one pair of shoes, Ex. P. 1, one pair of socks Ex. P. 2 and belt Ex. P. 3 were lying there. So also an ice-breaking small hammer (Ex. P. 4) which was bent. A steel almirah and two wooden almirahs were lying open. The bangles, earrings and the two finger rings which Mrs- Ved Khanna used to wear were also missing. A lock with a pulled out lock of the cupboard was there.
(10) By about 8.15 a.m., Lt. Gen. M. M. Khanna reached the house driving his own car quite fast. As soon as he entered the house, Sumedh at once uttered, 'Uncle, Prem Shankar Ne Mama Ko Maar Diya Hai Aur Mujhe Bhi Mara Hai Hathori Se'. He also showed a mark of injury on his left side of forehead near the eye-brow and on his little finger: He picked up Sumedh. patted him and handed him over to a servant. On rushing to the bed-room, he saw his sister-in-law, Ved Khanna, lying on the floor with her face downward, and her fore-arm, legs and neck tied with different pieces of cloth. The fan and light. were on, and the cupboard and the steel almirah were open and some things lying scattered on the dressing table. There was a broken mirror with some finger prints. He tried to feel the pulse of Ved Khanna, but it as not palpable, and, thereforee. he concluded that she was dead. In the meanwhile he also sent for , doctor. He then found that the door of the office leading to the back lane was lying ajar and the dog was tied with a chain in the office. He also rang up high officials of police including Mr. Ashwani Kumar, but could not contact them. By about 8.55 a.m., he succeeded in contacting the police control room, and informed that his sister-in-law had been murdered by her servant at 89, Darya Ganj, Delhi. This message was recorded by Surender Kumar S. I. (P. W. 24), who then informed the police station Darya Ganj of the same vide evidence of Prem Singh S.I. (P. W. 17). Harbans Singh S.H.O. (P. W. 27) along with some others then proceeded to the spot. In the meanwhile the police van had also reached there. In the presence of Harbans Singh, Sumedh gave his statement which was recorded by Harbans Lal S. I. (P. W. 26). In this he mentioned how they had attended the party at Panchsheel Park, and when they returned, his maternal grand-mother slept in her bed-room, while he and Prem Shankar slept in the room in which later the dead body was recovered. At mid-night on hearing noise raised by his grand-mother, he woke up and saw the appellant giving beating to her and tying her. He then) gave a kick to the appellant, but the latter picked up a hammer and hit him on his left eye-brow and left little finger. He then cried and raised alarm but Prem Thakur went out, locking the door from outside. He tried to knock the door, but none could hear him. This statement was forwarded for registration of a case at 10.30 a.m. by a note on it by Harbans Singh S.H.O. The formal case was registered at 10.40 a.m.
(11) P. L. Khanna, husband of Ved Khanna, on his part started from' Missouri on the morning of 6-10-1977, and on reachins: his house at Delhi at about 2.45 p.m. found a number of persons present there. Nobody wished to break the news to him. Sumedh came and sat in his lap and whispered in his ear that Prem Thakur...... He then at once enquired as to who he was, at which Sumedh told him that the new servant employed for him, and committed the murder of Mama and ran away. He then went to see her dead body in mortuary and found the engagement and wedding rings worn by Ved Khanna missing, and so also her gold bangles and ear-rings. Cash amounting to Rs. 2,500 and her watch were also missing from her bed room.
(12) It may also be mentioned here that the door of the bedroom of Ved Khanna was lying closed from inside. However, as the inspection note of the learned Additional Sessions Judge and the rough plan prepared of the spot show, from that room another door opened in an adjacent room from which one could go to the door of the room in which Sumedh and the appellant had slept.
(13) From the upper floor of the building, one kurta Ex. P. 13, one payjama Ex. P. 14 and one red colour langot Ex. P. 1. 15 belonging to the appellant were also recovered.
(14) The post-mortem on the body of Ved Khanna was performed by Dr. Bishnu Kumar (P. W. 18) of Maulana Azad Medical Hospital on 6-10-1977 at 2.30 p.m., and he found that her upper limbs and lower legs were tied and so also there was a cloth around her neck. A few scalp hair were also in the knot of the cloth tied around the neck. There were multiple patecheal haemorrhages throughout the face, more so over both cheeks, both sides of eye-lids and around tht chin on both sides of midline. A patecheal haemorrhage was also present at front chest on both sides particularly on the left side around the breast region. He found various abrasions, bruises and scratches on her body, specially on arms and legs. They numbered about 17. There was besides ligature mark all around the neck just over the upper part of thyroid cartilage. The death, according to him, was due to asphyxia as a result of ligature strangulation in neck. All the injuries were ante-mortem, recent and caused by some blunt object or surface. The pieces of cloth with which her hands, feet and legs were tied, were identified by him as Ex. p. 16 to Ex. P. 19. This time since death was 12 hours.
14A.Sumedh was examined at about 12.35 p.m. on 6-10-77 by Dr. Mrs. Saria Sharma (P. W. 23) of police hospital; and she found the following injuries on his person :
(I)Bruises on left side of face just lateral to left eyebrow, 1' x 1 'in size, reddish blue in colour; and
(II)He complained of pain in left little finger. Clinically there was no sign of injury.
THEIR duration was 9 to 18 hours.
(15) The appellant was arrested by PritamSingh S. I. (P. W. 21-A) on 13-10-1977 from the house of his brother in police lines Banda, as he happened to be a Sub-Inspector there. He was identified by Sukh Dev Singh driver. At that time, he was wearing a vest on which K-Capt. 77, Bbc was written. This according to the other servant and Adarsh Ayah, the appellant used to wear.
15A.On the afternoon of 22-10-1977, the appellant was examined by Dr. W. D. Butta, Dental Surgeon, Police hospital and he found depressions over his left hand which had been partially healed, and he, thereforee, could not say their duration. These marks are shown in the photo of his hand which has been produced on record
(16) From below the doors of the bed-room of Ved Khanna and of the room in which her body was found, one key each was found,
(17) The appellant in his statement under section 313 of Cr. P. C. admitted that he in response to the aforesaid newspaper advertisement approached the Khannas for a job and on his showing certificates and photograph on the next day, be was engaged by them. He also admitted that at that time Adarsh was working as Ayah for Sumedh and remained there up to 4-10-1977. He also admitted that P. L. Khanna left for Missouri on 2-10-1977, but could not say when he retimed from there. On the evening of 5-10-1977, he further admitted, he had gone with Ved Khanna, Sumedh and Sukh Dev Singh to Panchsheel Park. However, he denied that he had any talk with Sukh Dev or Shanti Devi about Ved Khanna having a lot of jewellery and money. On their return from that party at about 11.30 p.m according to him, he and Sumedh slept in a room on the upper floor where they normally used to sleep. He could not say where the other staff slept, though added that Phillips Joseph slept in the same room in which he slept. He was unaware if the main gate had been locked from out side. As regards Ex. P. 1 to Ex. P. 3, he admitted that they were his . shoes, socks and belt. But these, according 'to him, were lying in the room on the upper floor in which he used to live along with his other articles like kurta, payjama and langot. At about 6.00 a.m'., according to him, when he left the house Sumedh was still: sleeping in a room on the second floor. At that time, he had found Mrs. Ved Khanna lying murdered. He could not say about her jewellery. He admitted that vest Ex. P. 5 belonged to him, and he used to wear when residing in the said premises. He denied his complicity in the crime, and rather stated that on seeing Ved Khanna-murdered, he called Phillips and went to see him upstairs but did not find him there. Out of fear that he might not be implicated, he ran away.
(18) No defense evidence was led.
(19) After considering the evidence on record and the circumstances of the case, Shri P. L. Singh, Additional Sessions Judge convicted and sentenced the appellant as aforesaid. As regards the charge under section 323 Indian Penal Code . of causing hurt to Sumedh, it was held that the same had not been proved, as Sumedh could not remember while deposing in court, if he was given any beating by the appellant at the time of the incident.
(20) With this background of the case we have heard both the sides, and have given our utmost consideration to the entire circumstances. The appellant was admittedly employed by the Khannas to look after Sumedh, a child of 7 years, as his parents had gone to U. S. A. and he was studying in 2nd class of St. Columbus School. Much has been sought to be pleaded from the side of the appellant that on the fateful night, he didn't sleep with Sumedh on the ground floor room in which the dead body of Ved Khanna was found. Rather he was claimed to be sleeping on the upper floor, and in this regard reference has been made to the testimony of Adarsh Ayah to the effect that she used to sleep on the upper floor. However, what we find in the preset case is that there is abundant evidence on record which amply brings out that both the appellant and Sumedh slept in the ground floor room on returning quite late from the party which they had attended at Panchsheel Park. Sumedh himself as well as Raj Mani and Sukh Dev Singh servants have clearly deposed about the same. They have no ulterior motive to depose about the same, or to falsely implicate the appellant. Rather his own statement that he saw Ved Khanna lying murdered there, and on seeing which he felt apprehensive, and, thereforee, left the house in a manner shows that he had seen her dead body. As is clear from the other evidence on record, the door of that room was lying locked from outside, and it were the other servants . who had broken that open by pushing on hearing cries of Sumedh from inside. If the appellant had just come from the upper floor when she had already been murdered, he could have no occasion to see her as the room was lying locked. Corroboration to the testimony of those servants and Sumedh is available from the evidence of Lt. General M. M. Khanna and Col. A. K. Khanna when they deposed that Nainu had telephoned them that Sumedh was crying from inside the room that the appellant had tied and killed Ved Khanna, and then left after closing the door from outside. The statement of Sumedh constituting the first information report, which was recorded at about 10.00 a.m. too brought out that he had seen at mid night on hearing noise of his maternal grand-mother, the appellant beating and tying her. Ved Khanna was actually found tied at her hands, feet and neck in the morning.
(21) In our considered opinion, the acceptance of the testimony of Sumedh and other servants by the learned trial court calls for no interference. He had received minor scratches on his forehead and finger with the small hammer from the appellant Sumedh has, of course, not been able to give out verbatim details of the incident as narrated in the first information while appearing as witness in the court. This, in our opinion, is explainable to his tender age, passage of time and the possibility of his having become conscious while appearing in the court. We are not oblivious of the caution which has to be taken out the witnesses of tender age in order to ensure that they are pot tutored or are not indulging into fanciful assumptions or notoriety,. The Punjab & Haryana High Court has thus observed in the case of Ram Singh v State, 1973 CLR 482, that though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test iss tether there was possibility of any tutoring. If this test is found in the positive, the Court will act, as, a cruel prudence, convict the accused on a murder charge on the basis of child evidence unless it is corroborated to material extent in material Particular directly connecting the accused with the crime.
(22) At the same time, if otherwise the testimony of a child witness is not shown to be fainted with any such infirmities, it calls for due credence. A. child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unshed, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and unsparing, once the child is enabled to over come the initial Shock and awe, and ensured protection, security, compassion, and given confidence to come out with what was seen. It must be said that much water has flowed since the observations of Dr. Kenny, Downing Professor of Laws of England Cambridge University in which he termed the 'Children' as a most untrustworthy class of witnesses. Some of the children are fairly intelligent, truthful adn straightforward, and we do not any 'reason 'to start with a presumption of untrustworthiness in the assessment of their evidence. 'The merit of evidence has to be judged on the -touchstone of its own inherent intrinsic worth.. Courts should also while permitting full scope for cross-examination of such witnesses be careful to see that they are noy subjected to unnecessary 'confusion harassment of unduly made conscious of the awe of formal court atmosphere and the public gme.
(23) We do not find anything in the testimony of Sumedh which can show tutoring or his desire to, in any manner, indulge in publicity or fanciful assumptions.
(24) Even otherwise, we are of the opinion that the circumstances of the case leave little doubt that it was the appellant who committed the gruesome crime of murdering his employer who had given him' a job about a week earlier, seeing that he was a graduate and was just serving at Rs. 30 per month at a dhaba with one meal a day. It appears that the appellant had acted in a manner as to invite compassion and sympathy from them by representing the misfortune which had befallen on him on what he termed as the murder of his father. His duties were not as a full fledged domestic servant, but he was primarily to look after Sumedh. It is next clear that he had returned along with Sumedh and Ved Khanna at about 11.30 p.m. from the party at Panchsheel Park. Thereafter when Raj Mani and other servants left for upstairs after locking the main gate from outside, he was on the ground floor. This main gate was not opened till the next morning at about 6.45 a.m. when Raj Mani came down and prepared lime water for Ved Khanna. There was thus little likelihood of any other person coming on the ground floor. The circumstance that the back lane door of the office was lying open showed that he escaped from that routs finding the main gate closed from outside. More than anything-else, his socks, shoes and belt were found lying in the room where the dead body of Ved Khanna was discovered. These articles are admitted by him as belonging to him, and they are visible in the photographs of the room which were taken by the police on the next morning. These thus show that he infact slept in that room. We are enable to hold that these articles were planted in that room to falsely implicate the appellant as we do not find any of the witnesses produced being inimical to him. Thus he was the only grown up person present on the ground floor on that fateful night part from Sumedh. The tying of the feet, hands and neck of Ved Khanna who was other wise well-built, could not, by any stretch' of imagination, be the-work of a small child of 7 years of age. -As regards Raju Phillips Joseph, he had already left service on 4-10-1977, and was not in the house.
(25) Coupled with these circumstances is the sudden abscond- ing of the appellant from that house leaving his belongings behind in a most surreptitious manner from the back door. It appears that on finding Sumedh get up and raising noise, he thought of beating a hasty retreat after locking the door from outside so that Sumedh might not come out and awake other servants. In the meanwhile, he had already accomplished the robbing and ransacking of the two bed rooms.
(26) We are further inclined to accept the testimony of Sukh Dev Singh and Shanti Devi who have deposed that the appellant had, during the party at Panchsheel Park, enquired from them that Ved Khanna must be having a lot of jewellery and money. It is obvious that he was impressed by their living with a number of employees, and assumed that they were fairly well off. It was thus his endeavor to rob them and become rich over-night which prompted him to commit the dastardly crime. This was borne out from the steel almirah, cup-boards lying open and the ornaments, cash and watch of Ved Khanna missing. The bent small hammer which is generally used for ice breaking and the presence of the lock with uprooted latch, were clear pointers to the theft being the motive of the crime. It seemed that during that night, when he was breaking open the almirah and the cup-boards, Ved Khanna came from' her bed-room to see what was. happening, and either she found the door of the appellant's room open (as he might have done so while bringing the small hammer from near the refrigerator) or knocked the door, arid the appellant finding himself detected or cornered, decided to put an end to her life. -Fortunately the brutality which over took him then did not extend to ending the life of Sumdeh. It seems he could not perceive that the tender aged child could turn out to be a witness of the grim' drama. As already noted above, there was another door of the bed-room of Ved Khanna opening into another room, and in the circumstances the mere fact that the main gate of her room was lying closed from inside, could not be given much significance.
(27) We are unable to hold that the F.I.R. lodged in the present case did not embody what Sumedh stated, arid that it was fabricated by Harbans Singh S.H.O. The latter had stated that it was in his supervision that Harbans Lal S. 1. recorded what Sumedh stated. Harbans Lals evidence that he did so at the dictation of Harbans Singh S.H.O., seems to be an attempt to help the appellant. So also that Raju Phillips Joseph was also a suspect, as Harbans Singh has denied that. He was said to be an office assistant.
(28) The stolen ornaments, money and the watch have, of course not been recovered in the present case. The investigation failed in this regard. The lock of hair found in the knots of the cloth with which the deceased was tied, were found to belong to her. As regards the finger prints on the broken looking glass, it has not been brought out that they were of the appellant
(29) Considering all these circumstances, we are in agreement with the learned trial court in the assessment of the evidence on record that the charges under section 302 and 342 Indian Penal Code . were duly brought home to the appellant, He was rightly convicted and we find no force in the appeal to justify interference in the conviction or the sentences awarded, ft was indeed unfortunate that this appellant, who is a graduate, was, due to his exigencies and the prevailing unemployment conditions, forced to take up a job of keeping company and looking after a seven years old child, and those duties were akin to those of a household employee. However, the compassion and confidence which he had invoked in his benefactor-employers in giving hm a job in his dire needs, was criminally abused by him, and he had no qualms to rob and murder the lady 'of the house on that fateful night in most grim and cruel crime.