Bharatlal Bhandari vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 24-6-2005 passed by 2nd Additional Sessions Judge (FTC), Mungeli in Sessions Trial No. 268/2004. By the impugned judgment, accused/appellant Bharatlal Bhandari has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Case of the prosecution, in brief, is as under:

Rekhchand @ Kejaha (PW-1) was residing in Village Charanitola and was doing agricultural work. On the date of incident i.e. 13-4-2004, at about 3.30 p.m., he was in his Kothar situated at Village Charanitola. At that time, his son Neelchand (PW-5), running, came to him and told that his elder brother Radheshyam was assaulted by some unknown person near the door of Dr. Laxminarayan with sharp-edged weapon (Tabbal). Radheshyam was assaulted on the back of his neck once and on his head 2-3 times. A hole was made on the right side of the neck with a pointed weapon. Blood had oozed out from the neck, head and below the eye. When Rekhchand (PW-1) was going along with his son Neelchand (PW-5) to the place of occurrence, his brother Alen (PW-2), Bhabhi (sister-in-law) Peelabai (PW-12), Kaushilyabai, Udayram (PW-7), Bankelal and Sitaram had met him on the way, along with whom, Radheshyam was brought to Lormi Hospital in a tractor. Rekhchand (PW-1) lodged First Information Report (Ex. P-1) in Police Station Lormi expressing his suspect that the appellant, who had earlier threatened Radheshyam of his life, would have assaulted and injured Radheshyam. Radheshyam was sent to Community Health Centre, Lormi for medical examination vide Ex. P-10A. Dr. Sagar Shukla (PW-15) examined injured Radheshyam and gave his report (Ex. P-10) in which he found near about 6 injuries. He referred the patient to District Hospital, Bilaspur for radiological examination. Radheshyam died during treatment at CIMS, Bilaspur. Merg Intimation (Ex. P-12) was recorded in Police Station, City Kotwali, Bilaspur. Another Merg Intimation (Ex. P-18) was recorded in Police Station, Lormi. Investigating Officer Sub-Inspector L.C. Mohale (PW-22), Police Station, Lormi reached CIMS, Bilaspur, gave notice (Ex. P-2A) to Panchas and prepared inquest (Ex. P-2) on the dead body of deceased Radheshyam. The dead body was sent for post-mortem examination vide Ex. P-13. Dr. Arvind Shukla (PW-23) conducted autopsy of the deceased and gave his report (Ex. P-13A), in which, he found--

(1) fresh marks of abrasions over left cheek, forehead, left side above the outer � of eye-brow,

(2) repaired (freshly) wound over left fronto-parietal region, frontal bone beneath this wound cut horizontally, obliquely, 7 cms x 0.5 cm depth out level only,

(3) freshly repaired wound over right parieto-occipital region parallel to segital suchar, underlying parietal-occipital bone cut and brain matter had come out, 8 cms x 1.5 cms,

(4) fresh wound over left occipital region and on underlying bone 5 cms x 0.5 cm,

(5) repaired wound over outer and right side of neck.

He opined that cause of death was shock as a result of head injury and haemorrhage caused by injury No. 3.

In further investigation, memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-8 and at his instance the weapon of assault, i.e., Tangia (Axe) was seized from him vide Ex. P-9. Spot map (Ex. P-1) was prepared by Patwari Santosh Raj Patwardhan (PW 8). Another spot map (Ex. P-16) was prepared by Investigating Officer Sub-Inspector L.C. Mohale (PW-22). Plain soil, blood stained soil and blood stained white cloth were seized from the place of occurrence vide Ex. P-7. The appellant was arrested vide Ex. P-15. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex. P-20. Report (Ex. P-22) was received therefrom.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Mungeli, who, in turn, committed the case to the Court of Session, Bilaspur, from where it was received on transfer by 2nd Additional Sessions Judge (FTC), Mungeli, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri Arun Kochar, learned counsel for the appellant argued that Alen (PW-2), Neelchand (PW-5) and Rekhchand (PW-1) did not witness the incident. Had they witnessed the incident, the same would have been mentioned in the FIR (Ex. P-1). The FIR (Ex. P-1) was lodged by Rekhchand (PW-1). In the FIR (Ex. P-1), it is mentioned that Neelchand (PW-5) had told Rekhchand (PW-1) that deceased Radheshyam was killed by some unknown person. It is further mentioned therein that Alen (PW-2), Udayram (PW-7), Peelabai (PW-12) and Kaushilyabai had met Rekhram (PW-1) on the way, but they did not tell him name of the assailant. Had they witnessed the incident, they would have disclosed name of the assailant to Rekhram (PW-1), and Rekhram (PW-1) would have mentioned the name of the assailant in the FIR (Ex. P-1). He further argued that evidence of Peelabai (PW-12) regarding oral dying declaration is not reliable. He further argued that Omshiva (PW-3) is a child witness. He is a tutored witness. His evidence is not cogent and reliable, therefore, his evidence cannot be based for conviction. Alen (PW-2) and Neelchand (PW-5) are not eyewitnesses. The prosecution did not prove the oral dying declaration. Therefore, the solitary evidence of child witness Omshiva (PW-3) is not reliable and cannot be based for conviction. Hence, the appellant deserves to be acquitted.

Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 268/2004. The conviction of the appellant is mainly based on the testimonies of Omshiva (PW-3), Alen (PW-2), Neelchand (PW-5), Chandrikabai (PW-10) and Bhanchandrika (PW-11).

Rekhchand (PW-1) deposed that on the date of incident, at about 3-4 p.m., he was in the Kothar. His son Neelchand (PW-5), running, came to him and told that elder brother Radheshyam (the deceased) was killed by someone in the lane near the house of Dr. Laxminarayan. He, running, went to the place of occurrence. On the way, he saw that the appellant was fleeing with a Tangia (Axe) and the Tangia (Axe) was smeared, with blood. He took the deceased to Lormi in a tractor. He saw injuries on the back of the head and neck of the deceased. He lodged the FIR (Ex. P-1), which bears his signatures.

Alen (PW-2) deposed that deceased Radheshyam was his son. Deceased Radheshyam was also known as Munna. On the date of incident, the appellant had assaulted the deceased with a Tangia (Axe) when the deceased was sitting in the Parachhi of Das. He had reached the place of occurrence on hearing noise. When he reached there, he saw that the appellant was assaulting Radhe (The deceased) with the Tangia (Axe). Having seen him, the appellant fled from there.

Neelchand (PW-5) deposed that on the date of incident, the appellant had killed deceased Radheshyam with the Tangia (Axe). At about 3-4 p.m., he was present near the lane and was hearing cricket commentary. The appellant assaulted the deceased in front of the house in the lane. Thereafter, he went to his father Rekhchand (PW-1), who was in the Kothar and told him that the appellant had assaulted the deceased with the Tangia (Axe). The appellant had assaulted the deceased on the head and neck.

Peelabai (PW-12) deposed that her daughter-in-law had shouted near the house of Dr. Laxminarayan. Having heard her shout, she reached the place of occurrence. She saw that her son Radheshyam (the deceased) was lying there. On being asked from the deceased, he told that the appellant had assaulted him. She further deposed that the deceased had sustained injuries on the head and neck.

Had really Alen (PW-2), Neelchand (PW-5) and Udayram (PW-7) seen the incident, Neelchand (PW-5) would have told the name of the assailant, i.e., the appellant, to Rekhchand (PW-1) instead of telling him that some unknown person had assaulted the deceased. Had any oral dying declaration been made by the deceased before Peelabai (PW-12), she would have told about it to Rekhchand (PW-1) and mention thereof would have taken place in the case diary statement (Ex. D-9). But, in Ex. D-9, nothing is mentioned regarding oral dying declaration. In case diary statement (Ex. D-3) of Alen (PW-2), case diary statement (Ex. D-5) of Neelchand (PW-5) and case diary statement (Ex. D-6) of Udayram (PW-7) also, name of the appellant has not been mentioned specifically and it appears that his name was added therein later on. Had the above witnesses really witnessed the incident, this fact would have taken place in the FIR (Ex. P-1). But, the FIR (Ex. P-1) does not reveal so. This makes evident that the above witnesses did not witness the alleged incident. Therefore, these witnesses are not eye-witnesses. Their evidence is not reliable and is, therefore, not taken into consideration.

Now, we shall examine whether the evidence of Omshiva (PW-3) is cogent and reliable and can be based for conviction? It is not disputed that Omshiva (PW-3) is a child witness. On the date of deposition, his age was 11 years.

In Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, it was held that "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 questions 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 demeanour must be like any other competent witness and there is no likelihood of being tutored." The same view has been further reiterated in Nivrutti Pandurang Kokate and Others Vs. State of Maharashtra,

In State of M.P. Vs. Ramesh and Another, , the Hon''ble Supreme Court held as follows:

In Rameshwar Vs. The State of Rajasthan, this Court examined the provisions of section 5 of the Oaths Act, 1873 and section 118 of the Evidence Act, 1872 and held that (AIR p. 55, para 7) every witness is competent to depose unless the Court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under: (AIR p. 56, para 11)

11.....It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.

In Mangoo and another Vs. State of Madhya Pradesh, , this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

In Panchhi and others Vs. State of UP, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that:

the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. 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 him and thus a child witness is an easy prey to tutoring. (SCC p. 181, para 11)

In Nivrutti Pandurang Kokate and Others Vs. State of Maharashtra, , this Court dealing with the child witness has observed as under: (SCC pp. 567-68, para 10)

10......... 7 ..... 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 by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses 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 that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

The evidence of a child must reveal that he was able to discern between right and wrong and the Court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The Court may ascertain his suitability as a witness by putting questions to him and even if no such question had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra,

In State of U.P. Vs. Krishna Master and Others, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child 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 may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In Md. Kalam Vs. The State of Bihar, the Hon''ble Supreme Court held as follows:

In Panchhi and others Vs. State of UP, it was observed by this Court that the evidence of a child witness cannot be rejected outright but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. The Court has to assess as to whether the statement of the victim before the Court is the voluntary expression of the victim and that she was not under the influence of others.

Omshiva (PW-3) deposed that nobody was playing cards in front of his house. The appellant had come there with the Tangia (Axe). The appellant, saying the deceased why was he sitting, began to assault the deceased with the Tangia (Axe). The appellant assaulted on the head, thereafter on the neck. He, running, went to call his mother. He narrated the incident to his mother Chandrikabai (PW-10). They, standing, saw the incident. Thereafter, the appellant fled from there.

Omshiva (PW-3) deposed that he had told his mother Chandrikabai (PW-10). He further deposed that he had told the police clearly that he had seen the deceased being assaulted. He further deposed that he had shouted when the appellant had assaulted the deceased. Having seen the incident, he had directly come in his house. Immediately thereafter, he called and took his mother (Chandrikabai - PW-10) thereto.

Chandrikabai (PW-10) deposed that his son (Omshiva - PW-3) saw that the appellant was assaulting the deceased. Having seen the incident, his son came to her and told that the appellant was assaulting the deceased. She came out of the house and saw that the appellant was assaulting the deceased on the head with a Tangia. She entered back her house.

The date and time of incident was 13-4-2004 at about 4 p.m. The FIR (Ex. P-1) was lodged on the same day at about 4:45 p.m. The case diary statement (Ex. D-4) of Omshiva (PW-3) was recorded on 14-4-2004, i.e., on the next day of the incident. Omshiva (PW-3) specifically deposed that he had told the police directly about the incident and he had shouted when the appellant had assaulted the deceased. He specifically deposed that the appellant had assaulted the deceased on the head and neck.

Dr. Sagar Shukla (PW-15) deposed that he examined deceased Radheshyam and gave his report (Ex. P-10). He further deposed that incised wounds were found on the head and neck of the deceased. Dr. Arvind Shukla (PW-23) deposed that he conducted autopsy of the deceased and gave his report (Ex. P-13A), in which, he found--

(1) fresh marks of abrasions over left cheek, forehead, left side above the outer � of eye-brow,

(2) repaired (freshly) wound over left fronto-parietal region, frontal bone beneath this wound cut horizontally, obliquely, 7 cms x 0.5 cm depth out level only,

(3) freshly repaired wound over right parieto-occipital region parallel to segital suchar, underlying parietal-occipital bone cut and brain matter had come out, 8 cms x 1.5 cms,

(4) fresh wound over left occipital region and on underlying bone 5 cms x 0.5 cm,

(5) repaired wound over outer and right side of neck.

He further deposed that cause of death was shock as a result of head injury and haemorrhage caused by injury No. 3.

The case diary statement (Ex. D-4) of Omshiva (PW-3) was recorded without any delay and his statement is corroborated by the evidence of her mother Chandrikabai (PW-10) and medical evidence too. Therefore, the evidence of Omshiva (PW-3) is cogent and reliable and can be based for conviction of the accused/appellant.

We have carefully perused the evidence of Omshiva (PW-3) and Chandrikabai (PW-10). Omshiva (PW-3) specifically deposed that on the fateful day, the appellant assaulted the deceased with the Tangia (Axe). Omshiva (PW-3) is an independent witness and he had no motive to implicate the appellant falsely. Therefore, his statement is clinching and cogent.

Therefore, the finding of the learned Additional Sessions Judge, convicting the appellant on the basis of evidence of child witness Omshiva (PW-3), does not call for any interference by this Court. For the foregoing reasons, we do not find any substance in the appeal; it deserves to be and is hereby dismissed.