Ajay Parganiya vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 25th of March, 2008 passed in Sessions Trial No. 31/2007 by the Additional Sessions Judge (FTC), Bemetara, District Durg (CG). By the impugned judgment, the appellant has been convicted u/s 302, IPC and Sections 25/27 of the Arms Act. The facts, briefly stated, are as under:--

1.1. Ramcharan Soni (deceased) was grandfather of Rituraj Soni (P.W. 13). The houses of the appellant and the deceased were adjacent to each other. There was a dispute regarding plaster on a wall of house of the appellant which was just by the side of the wall of the house of deceased. The appellant wanted to get it plastered after removing the tiles adjacent to the wall, whereas, the deceased was not allowing to do so. On 11-8-2006 at about 10.30 a.m., the deceased had gone on his Luna to bring Rituraj (P.W. 13 - his grandson) from his school, i.e., Sarswati Sishu Mandir, Kusmi. The allegations are that as soon as the deceased and Rituraj (P.W. 13) were about to ride the Luna, appellant came there with a sword and attacked over the deceased by the said sword. The appellant gave repeated blows to the deceased. The deceased received multiple serious injuries and succumbed to those injuries. Rudra Kumar Soni (P.W. 9), son of the deceased, was informed. He lodged First Information Report (FIR - Exh. P-14). The Investigating Officer reached to the place of occurrence, gave notice (Exh. P-1) to the Panchas and prepared inquest (Exh. P-2) on the dead body of the deceased. The dead body was sent for post-mortem. The post-mortem examination was conducted by Dr. Sahodra Thakur (P.W. 5). She found following injuries on the dead body of the deceased:--

(i) Incised wound of 13 x 2 x 3 cm on the right ear-pinna. Lobule was incised;

(ii) Lacerated wound of 1 x � x � cm near the right eye-brow;

(iii) Lacerated wound of 8 x � X 1/8 cm on the upper portion of right forearm;

(iv) Lacerated wound of 12 x � x 1/8 cm on the right forearm;

(v) Lacerated wound of 13 x 1/8 x 1/8 cm on middle of right forearm;

(vi) Incised wound of 4 x 1 x 1 cm on the right elbow;

(vii) Incised wound of 4 x � x � cm on the right forearm;

(viii) Incised wound of 4 x 1 x � cm on the middle of right forearm;

(ix) Incised wound of 7 x 6 cm on the base of the thumb of right hand. The thumb was attached with the skin only;

(x) Incised wound of 3 x 1 x 1/8 cm on the right palm;

(xi) Incised wound of 7 x 5 cm on the right hand having fracture of ulna bone;

(xii) Incised wound of 8 x 1 x 1/8 cm on the middle of the left forearm;

(xiii) Contusion of 5 x 3 cm below the left ear-pinna;

(xiv) Stab wound of 5 x 1 cm on the left mid axillary line;

(xv) Stab wound of 5 x 1 cm on the intra-costal space on middle of axillary line; and

(xvi) Stab wound of 3 x 1 cm on the chest which had gone deep to the base of the heart.

The Autopsy Surgeon opined that all the injuries were ante-mortem and the cause of death was haemorrhagic shock on account of the above injuries and the death was homicidal in nature. The post-mortem report is Exh. P-6.

1.2. Various articles including Luna of the deceased and soil etc. were seized from the place of occurrence vide seizure memo (Exh. P-16). The blood stained sword and cloths of the appellant were seized from his possession vide seizure memo (Exh. P-20). It was a sword made of iron having length of 31 inch and breadth of 1: � inch with 2 inch thickness. Query report relating to the sword is Exh. P-8. The seized articles were sent for chemical examination to Forensic Science Laboratory (FSL), Raipur, from where a report (Exh. P-26) was received. According to the FSL Report, blood stains were found on almost all the articles except plain soil (Article F) seized from the place of occurrence.

1.3. The case of the prosecution was based on eye-witness account of Rituraj Soni (P.W. 13). The Sessions Judge relied on the testimony of this witness and convicted and sentenced the appellant as above. Hence this appeal.

Mr. Shivendu Pandya, Counsel appearing on behalf of the appellant, has argued that Rituraj Soni (P.W. 13) was a child witness; he was aged about 5 years; the deceased was his grand-father; he was residing with his parents, therefore, a chance of tutoring cannot be fully ruled out in this matter. Referring to Paragraphs 4 and 5 of his evidence, he assailed his testimony and argued that conviction based on the sole testimony of Rituraj Soni (P.W. 13) cannot be sustained.

On the other hand, Mr. Vinod Tekam, Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court.

We have heard Counsel for the parties.

In Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, , the Supreme Court said that the Court must see that the child witness is reliable and the demeanour of the witness is like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the Court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record.

In Panchhi and others Vs. State of UP, , the Supreme Court held that the law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.

Referring to various other judgments, the Supreme Court held in the matter of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, that conviction on the basis of child witness is permissible if such witness is found competent to testify and the Court after careful scrutiny of its evidence is convinced about the quality and reliability of the same.

Therefore, it is well-settled that the evidence of a child witness has to be evaluated with great care and caution and greater circumspection and its credibility has to be examined in light of the facts and circumstances of each case and if it is found credible in all respects it can be relied on for conviction in a criminal case.

It is on these principles, we shall examine the credibility of the evidence of Rituraj Soni (P.W. 13).

Rituraj Soni (P.W. 13) was aged about 5 years on the date of recording of his evidence on 26-7-2007. He was well responding to the questions asked to him. He deposed that his grandfather had died. Ajay Parganiya (appellant) had committed him (deceased) to death. He had assaulted him by a sword. The sword was a big one. Ajay Parganiya was well known to him. He identified him saying that he was standing in the accused-box. The incident had taken place where the boys used to keep their bicycles. He was present at the place of occurrence and had seen the incident. At that time, he along with his grandfather (deceased) were present there. Other persons were not there. The incident had taken place in the morning hours. He had gone to his school on a rickshaw. He was studying in the school. One Preeti Madam was teaching him. One bell had gone. Thereafter, his grandfather came to the school for taking him back on his Luna. Ajay Parganiya (appellant) had assaulted his grandfather who fell down. He was seeing all this. He was trying to get him up. Rickshaw puller etc. came there. Thereafter, he went to his house. While he was trying to get him (deceased) up, he fell down. Thereafter, the police persons came there and took his grandfather. Blood was coming out from the injuries of skull, neck and abdomen of his grandfather.

Mr. Pandya has argued that in Para 5 of his cross-examination, it appears that he was a tutored witness. He has admitted that he was telling as he was told by his parents. We have gone through Para 5 of the cross-examination of P.W. 13. In Para 5, he deposed that his grandfather came to the school at about 1.30 p.m. for taking him on his Luna. He had called him. He admitted that earlier he had visited Court premises twice, but had not entered into the Court room. On the date of his evidence, he had come along with his parents and the parents had told the name of the appellant and they had told him the facts on which he is telling. However, he further added that Ajay Parganiya (appellant) was well known to him. His (appellant) house was situated in front of their house. He is telling as his Mummy and Papa had told him, but he made it clear that Mummy and Papa had never tutored him and what he saw from his own eyes, he is deposing those things. He denied the suggestions that he had not seen the incident and therefore, he did not disclose it to any other person.

Admittedly, the appellant and the deceased were neighbours and both were residing adjacently since long back. Why a boy of 5 years, studying in Saraswati Sishu Mandir, would not be able to identify his own neighbour whom he must be seeing since long back. The boy was a regular student of the institution and it cannot be held that he may not be able to identify the appellant who was his neighbour since long. Therefore, there is no question of mistaken identity. As far as presence of this witness at the place of occurrence is concerned, we have already stated that he had gone to the school in a normal way and his grandfather (deceased) had gone to bring him back on his Luna. He has deposed that he was standing at the place where the cycle stand was there, and when they were yet to ride over the Luna, the incident took place.

A portion of evidence of a witness is not to be read in isolation. The evidence is to be read as a whole. Any casual admission, which later on is cleared by the witness without any question by the Court has not to be given much importance. If the entire evidence of a witness appears to be trustworthy and focus of the evidence is on a particular fact in issue, that has to be looked into by the Court while appreciating the evidence of the witness.

In the instant case, though at one or two places Rituraj Soni (P.W. 13) had admitted that he was told by his parents, but in the very next line, he himself deposed that he was deposing what he had, in fact, seen. Therefore, if the entire evidence of this witness is taken, it appears that he had seen the entire incident that the appellant had assaulted the deceased (grandfather of the witness) by sword who had sustained multiple serious injuries.

The evidence of this witness (P.W. 13) is corroborated by the evidence of Dr. Sahodra Thakur (P.W. 5) who performed autopsy on the dead body of the deceased and found above injuries. His (P.W. 13) evidence is further corroborated by other material available on record like contents of the FIR (Exh. P-14) and merg intimation (Exh. P-13) in which the name of the appellant has been mentioned. The FIR was lodged by his father, who any how came to know about the incident and reached to the place of occurrence. The appellant is named in the FIR (Exh. P-14). The incident took place at about 10.30 a.m. and the FIR was lodged at about 11.00 a.m.

We have carefully scrutinised the evidence of Rituraj Soni (P.W. 13) in light of the other evidence available on record. We are of the view that the learned Sessions Judge has fully justified in resting the conviction of appellant on the evidence of P.W. 13 and the conviction deserves to be upheld. For the foregoing reasons, we do not find any substance in the appellant. This appeal, therefore, is liable to be dismissed and is hereby dismissed.