Anandi Viswas vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment 22-1-2004 passed by Additional Session Judge, F.T.C., Ramanujganj, District Surguja in Sessions Trial No. 62/2003. By the impugned judgment, accused/appellant Anadi Viswas has been convicted and sentenced in the following manner:

Case of the prosecution, in brief, is as under:

On 1-10-2002, at about 9 a.m. Sapan Kumar Gharami (PW-4) went to Police Station Balrampur along with Jatin Rai (PW-8) and Jagdish (PW-14) and gave intimation that he had gone to the village in search of a labourer and when he was returning, he saw that Pradeep Ghasiya (PW-1) of his village was grazing cattle. Deceased Manmat was lying there by the side of the road. On being asked, Pradeep Ghasiya (PW-1) told that the deceased and the appellant were abusing each other and quarreling. After the quarrel, when the deceased began to go back, he fell down there. He further told that Harendra Viswas (PW-3) had given water to the deceased. The deceased had sustained injury of his left cheek. The above was recorded as Merg Intimation vide Ex.-P-3. Investigating Officer A.S.I. Ashok Kujur (PW-16) reached the place of occurrence, gave notice (Ex. P-4) to Panchas and prepared inquest (Ex. P-5) on the dead body of the deceased. Spot-map was prepared by the Investigating Officer vide Ex. P-7. First Information Report (Ex. P-12) was registered in Police Station Balrampur. The dead body of the deceased was sent to Community Health Centre, Balrampur for post mortem examination, Dr. P.L. Verma (PW-15) conducted the post mortem examination on the dead body of the deceased and gave report (Ex. P.-10A), in which, he found (i) contusion, 3"x2" on left eye, (ii) contusion, 2"x2" on left shoulder. On opening the skull, he found that suchar was separated from each other and blood was coming out of the suchar. He opined that cause of death of the deceased was syncope due to extra and intra cranial haemorrhage and the death was homicidal in nature.

In further investigation, memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-1 and at his instance, Tangi, which was fixed in a bamboo, was recovered from him and seized vide Ex. P-2. The seized Tangi was sent to Community Health Centre, Balrampur for examination. Dr. P.L. Verma (PW-15) examined Tangi and gave report (Ex. P-11). Statements of witnesses were recorded by the police.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ramanujganj, who, in turn, committed the case to the Court of Session, Surguja, from where it was received on transfer by Additional Sessions Judge, F.T.C., Ramanujganj, District Surguja, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Anant Bajpai and Shri S.S. Rajput, learned counsel for the appellant argued that learned Additional Sessions Judge wrongly convicted the appellant. Pradeep Ghasiya (PW-1) is a child and tutored witness. His evidences is not reliable. Niranjan Sardar (PW-2) did not support the case of the prosecution. He is not an eye witness. Sapan Kumar Gharami (PW-4) and Anjan (PW-5) are not reliable witnesses. The appellant is falsely implicated. The prosecution did not adduce any cogent and reliable evidence. According to medical evidence, the deceased sustained injuries on his shoulder and left eye. Therefore, the appellant cannot be convicted u/s 304 Part II IPC.

On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the Stare/respondent, opposed the above arguments and supported the impugned judgment passed by the learned Additional Session Judge.

I have heard learned counsel for the parties at length and have also perused the record of Session Trial No. 62/2003. Conviction of the appellant u/s 304 Part II IPC is based on the evidence of Pradeep Ghasiya (PW-1), Sapan Kumar Gharami (PW-4) and Anjan (PW-5). Pradeep Ghasiya (PW-1) was 16 years old at the time of his deposition. He is a child witness.

Child witness is a competent witness. Basic innocence and truthfulness of a child witness is to be taken into consideration, however, possibility of tutoring is always present in the case of child witness and the same has to be ruled out. Therefore, a great caution is required while appreciating the evidence of a child witness, particularly, when the child witness is solitary eye witness of the incident.

In Nivrutti Pandurang Kokate and Others Vs. State of Maharashtra, the Hon''ble Supreme Court observed as follows:

6.... The 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 kind. A child of tender age can be allowed to testily if he has intellectual capacity to understand questions and give rational answers hereto. This position was concisely stated by Brewer, J. in Wheeler v. United States, 40 L Ed 244. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana Vs. State of Karnataka,

In Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, , It was held as follows: (SSC p. 343, para 5)''

5.... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered u/s 118 of the Evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demean our must be like any other competent witness and there is no likelihood of being tutored.

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed the higher court of from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witness are amenable to tutoring and often live in a world of make believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion the there is an impress of truth in it, thee is no obstacle in the way of accepting the evidence of a child witness.

The above position was highlighted in Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, , SSC pp. 67-68, paras 6-7. Looked at from any angle the judgment of the trial court and the High Court do not suffer from any infirmity to warrant interference."

Pradeep Ghasiya (PW-1) turned hostile and did not support the case of the prosecution but his evidence is not discarded in toto. His evidence can be relied upon at least upto the extent he supported the case of the prosecution.

Pradeep Ghasiya (PW-1) deposed that on the date of incident, at about 7 a.m., the appellant and the deceased were quarreling with each other. The deceased was saying the appellant that the appellant had got his maize grazed by cattle. He further deposed that it is rue that the appellant and the deceased were going quarreling with each other.

Harendra Viswas (PW-3) deposed that he, after hiring a labourer, was coming to his house. On the way, he saw that the appellant and the deceased were quarrelling with each other. Pradeep Ghasiya (PW-1) met him on the way. He told him that the deceased had fallen down. He went to the deceased and dropped died. In cross-examination, in paragraph 3, he deposed that it is wrong to say that he did not see the appellant committing Marpeet with the deceased.

Sapan Kumar Gharami (PW-4) deposed that he had gone to engage labourer and was returning. He saw that the appellant was, causing the deceased to run, assaulting him with a Lathi. The deceased fell down. At that time, Pradeep Ghasiya (P W-1) also came there and told that the appellant assaulted the deceased due to which the deceased fell down.

Anjan (PW-5) deposed that on the date of incident, at about 7 a.m., he Sapan Kumar Gharami (PW-4), Lalsu, Cheepa and Chihu were sitting in front of his house on the road. After sometime, he saw that the appellant was causing to run the deceased and was assaulted him with a Lathi. The deceased fell down and died. The deceased had sustained injury on the left cheek near the eye.

Merg Intimation (Ex. P-3) was lodged by Sapan Kumar Gharami (PW-4). In Ex. P-3, the name of the appellant is mentioned as assailant. In inquest (Ex. P-5) also, the name of the appellant is mentioned as assailant. Pradeep Ghasiya (PW-1) though turned hostile and did not support the case of the prosecution yet he specifically deposed that the deceased and the appellant were quarrelling on the issue of grazing of maize. After sometime, the deceased fell down.

Sapan Kumar Gharami (PW-4) and Harendra Vishwas (PW-3) specifically deposed that Pradeep Ghasiya (PW-1) told them that the deceased and the appellant were quarrelling. He also told that the deceased had fallen down. Harendra Vishwas (PW-3) specifically deposed that he had dropped water in the mouth of the deceased. Anjan (PW-3) also deposed that he saw the incident. He also saw that the deceased had sustained injury on the left cheek near the eye. Dr. P.L. Verma (PW-15), who conducted post mortem examination on the dead body of the deceased, deposed that on post mortem examination, he found (i) contusion, 3"x2" on left eye, (ii) contusion, 2"x2" on left shoulder. On opening the skull, he found that suchar was separated from each other and blood was coming out of the suchar.

I have carefully perused the evidence of above prosecution witness. They categorically deposed that on the fateful day, the appellant assaulted the deceased with the Lathi. From medical evidence, I find that cause of death of the deceased was syncope due to extra and intra cranial haemorrhage and the death was homicidal in nature.

Learned Additional Sessions Judge held in paragraph 24 of the impugned judgment that a quarrel had taken place between the appellant and the deceased on the issue of grazing of maize. On this account, the appellant had given two blows with blunt portion of the Tangi. There was no premeditation. The incident took place in a spur of moment and the appellant assaulted in a heat of passion on sudden quarrel. Learned Additional Sessions Judge found the appellant guilty of the offence u/s 304 Part II IPC.

From the above discussion, I find that the learned trial Judge rightly arrived at the finding of conviction of the appellant under Session 304 Part II IPC and the sentence of rigorous imprisonment for 5 years with payment of fine of Rs. 10,000/- awarded by him to the appellant is just and proper. Therefore, the impugned judgment of conviction and sentence does not call for any interference by this Court. The appellant shall be entitled to set-off the period already undergone by him against the above sentences awarded to him. The compensation part of the impugned judgment is upheld. In the result, the appeal fails and is hereby dismissed.