Chhuttu and Others vs State of U.P.

B.P. Singh, J.—Chhuttu, Chunna, Raghubir and Rajendra have filed this appeal against the judgment and order dated 23-6-1979 passed by the Vth Additional Sessions Judge, Hamirpur in S.T. No. 184 of 1978 State v. Chhuttu and Ors. u/s 302/34 IPC P. S. Panwari district Hamirpur.

The case of the prosecution, as was unfolded in the evidence of Akhlesh (PW 2) and Ors. witnesses, is as follows.

Krishna Rant, the deceased, and accused Chhottu, Chunna, Raghubir and Rajendra are residents of village Bharwara P. S. Panwari district Hamirpur. Krishna Rant was the principal in the Intermediate College, Karari. Brindaban (PW I) father of the deceased and Dariyao are first cousins Brindaban''s mother was the real sister of Dariyao, father of Moti Lal and Sunder. Accused Chhottu is the grand son of Moti Lal while Raghubir and Rajendra are son of Sunder. There was another brother of Dariyao named Mullu Suit. Sumitra is the daughter of Mullu. Smt. Sumitra had become vidow 30-35 years ago. Mullu died about 25 years back After the death of Mullu, his name continued upon his cultivable land for some years. Thereafter, Smt- Sumitra applied for mutation of her name and finally her name was recorded over the agricultural plots. Krishna Kant used to do pairvi of the case of Smt Sumitra and Krishna Kant had succeeded in getting a sale deed executed by Smt. Sumitra for 5-6 Bighas land in his name. Smt. Sumitra''s mutation case was against Moti Lal and Sunder. Smt. Sumitra had finally won her case from the Board of Revenue and after that she wanted that the land, which was transferred by her to Krishna Kant, be transferred back by Krishna Kant in her name. Both Moti Lal and Sunder had instigated Smt. Sumitra to claim back the land from Krishna Kant.

When Krishna Kant did not oblige Smt. Sumitra, she made a complaint against Brindaban, Krishna Kant and another with the allegation that they had taken away her she buffalo, but the matter was compromised on intervention of some villagers.

Six-seven years prior to the occurrence, accused Chunna and his brother Munna had assaulted Krishna Kant and a case u/s 307 IPC was registered against them. This case, however, was also compromised. Relations between the family of Brindaban on the one hand and the families of Moti Lal and Sunder on the other were strained. Chunna also nursed grievance against Krishna Kant.

On 15-5-1978 it was at about 6.30 P.M. when Krishna Kant, Akhlesh (PW 2), Tikaram, Ratiram and Khatloo were returning after answering the call of nature. When these persons reached near the flour mill of Moti Lail all the four accused i.e. Chhottu, Chunna, Raghubir and Rajendra came out of the flour mill. At that time, Chhottu was armed with a country made pistol while three accused were carrying lathis. Rajendra, Raghubir and Chunna surrounded Krishna Kant and Chhottu fired upon Krishna Kant from the pistol. Krishna Kant fell down and died on the spot. The witnesses challenged the accused and the accused ran away.

Akhlesh (PW 2) then went to his house and narratej the entire occurrence to his grand father Brindaban (PW 1). Brindaban and Akhlesh then returned to the place of occurrence. At shat time, the deceased was wearing Kurta, Dhoti, Baniyan, underwear, Safi and shoes.

After leaving the village Chowkidar and others near the dead body of Krishna Kant, Brindaban (PW 1) went to police Station Panwari, In town Panwari Brindaban (PW 1) scribed a written report Ext. ka-1 upon the shop of a general merchant. This written report Ext. ka-1 was handed over by him in P. Si Panwari on 15-5-1978 at 8.15 P.M.

Head Constable Shant Kumar Bajpai who was posted in P. S. Panwari, had received the written report from Brindaban (PW 1) and had prepared FIR Ext. ka-2 and had also made G. D. entry Ext. ka-3 about the commission of the crime.

S. I. Padam Singh Indanlia (PW 4) who was posted as S.O.P.S. Panwari In Way and June, 1978 was present at the police Station when this case was registered- He took over the Investigation as soon as the case was registered and recorded the statement of Brindaban PW-1 at the police Station. Thereafter, he left for the scene of occurrence and there he recorded the statements of Akhlesh, Ratiram, Tikaram and Khatloo.

On 16-5-1978 the I.O. inspected the scene of occurrence and carried out the inquest proceedings upon the dead body of the Krishna Kant and after routine investigation a charge sheet Ext. ka-12 was submitted in the case.

After carrying out the inquest proceedings on 16-5-1978 the I.O. had sealed the dead body of Krishna Kant in a cloth and had sent the same alongwith relevant papers to Rath for postmortem examination through constable Raj Narain.

Dr. S. G. Pandey (PW 5), who was posted as Medicial Officer in Civil Hospital. Rath on 16 5-1978, had carried out the postmortem examination upon the dead body of Krishna Kant at 615 P.M. The result of the postmortem examination was as follows --

The age of the deceased was about 40 years and 18 to 36 hours had elapsed since his death.

External examination.

Body of a young adult (middle aged) of good average built. Mouth half open. Eye half open. Bloody discharge from mouth and nostrils. Abdomen distanded, blisters present, skin paled of at places. Faecal matter on anus. Rigor mortis is passing from upper part, present in lower limbs which is passing of from lower limbs.

Ante-mortem injuries.

(1) Gun shot wound of entry 3 cm x 3 cm x abdominal capacity deep in centre of abdomen 6 cm above in umbilicus. Blackening, scorching and tattooing present. Wound in an area of 10 cm x 10 cm (including wound). Intestine is peeping out from the wound.

(2) Contusion 17 cm x 17 on the left side of face as whole or left eye, black eye, sub-conjunctival haemorrhage is present on the left eye.

Abdomen.

Walls ruptured below injury No. 1, peritoneum ruptured. Cavity contains 2.5 lbs blood. Oeosophagus NAD. Teeth 16/16. Stomach-ruptured badly. Contains 2 on of semi digested food in lower part. Rest part lacerated. Part of stomach was peeping from injury No. 1. Small and largo intestines N.A.D. Faecal matter. Liver badly ruptured at many places. Kidney ruptured at one place. Bladder was empty. Two shots taken out from the muscles of right side of back lumber region. 10 cm from the middle. Three shots were taken out from the abdominal cavity right side. Three pieces of wad taken out from the abdominal cavity lower region. Three pieces of broken fountain pen were taken out from the abdominal cavity (one broken nib and two pieces of lower part of pen). Death was due to shock and haemorrhage as a result of injury No. 1.

Dr. S. C. Pandey proved his report, Ext. ka-13, About injury No. 2, he has deposed that it can be caused by fall on hard surface.

At the trial, the accused pleaded not guilty and claimed to be tried.

I5 In all the prosecution examined five witnesses i.e. Brindaban (PW 1), Akhlesh ''PW 2), HC. Sant Kumar Bajpai (PW 3). S. I. Padam Singh Indaulia (PW 4) and Dr. S. C. Pandey ("PW 5) in the case. On the other hand, the accused examined Radhey Lal (DW 1) and Laxman Singh Chauhan (DW 2), in their defence.

The learned Sessions Judge accepted the evidence of the prosecution witnesses and held that accused Chhottu was guilty of the offence punishable u/s 302 IPC while Chunna, Raghubir and Rajendra were guilty of the offence punishable u/s 302 IPC read with Section 34 IPC.

It is against this judgment and order that the Appellants have come in appeal.

We have heard the learned counsel for the parties and we have gone through the record of the case.

The fact that Krishna Kant died on 15-5-1978 near the flour mill of Moti Lal in village Bharwara is not disputed. It is also not disputed that the cause of death of Krishna Kant was the injury caused by fire-arm. These facts are also proved by the formal evidence of S. I. Padam Singh Indaulia (PW 4) and Dr. S. C. Pandey (PW 5). The only contention of the Appellants is that they were not responsible for the murder of Krishna Kant and were falsely implicated in this case.

The prosecution has relied upon the evidence of Brindaban (PW 1) and Akhlesh (PW 2). It may be mentioned here that admittedly Brindaban (PW 1) is not a witness of fact. He, on his own admission, was at his house at the time when the occurrence took place and had not witnessed the occurrence in which his son was murdered. Thus, there Is solitary testimony of Akhlesh (PW 2).

Before discussing the evidence of Akhlesh (PW 2), we may deal with the question as to how his evidence is to be approached by us. Admittedly, Akhlesh (PW 2) was aged about 8 years when the occurrence took place. u/s 118 if the Indian Evidence Act, a boy aged 8 years is competent to give evidence In a criminal trial if It appears to the court that he understands the questions put to him and is capable of giving rational answers. It is left to the judge of the Court to come to a conclusion whether the child witness was capable of giving rational answers. There is no rule of law that a Judge, before recording the statement of a child witness in a criminal trial, may put question to him for the purpose of ascertaining the fact if the child witness was capable of understanding the question put to him and was also capable of giving rational answers. But the rule of prudence is that it is always desirable that a Trial Judge, before recording the evidence of a child witness, satisfies himself by putting questions to the child witness so that he may be In a position to conclude if the child witness as understanding the questions put to him and If the anwers given by him were rational. Of course, if the Trial Judge has not adopted this procedure and if he has generally put questions to the child witness and has failed to record the same, such a lapse will not be fatal to ''h? prosecution case But it is always desirable that the Trial Judge should lease on record the questions that he had put to the child witness in the preliminary examination and the answers given by the witness Tie reason is very simple. When the Trial Judge makes the examinition of the child, the appllate court, in case an appeal is filed after the decision in the case, can also examine the same and come to its own conclusion if the child witness was or was not competent to depose.

In the present case, the learned Sessions Judge has not made any preliminary examination of Akhlesh (PW 2). In case he has done so, we find no record of the same in the file of the trial conrt. However, we shall be examining the evidence of Akhlesh (PW 2) on Its own intrinsic value. There have been many decisions of the various High Courts of the country where the view taken is that it is dangerous and risky to rely upon the evidence given by a child witness unless it stands corroborated by some other independent witness.

Kenny in his Outlines of Criminal Law at page 420 (1952 Edition) opined that children are a most untrustworthy class of witness, and it is found from common experience that they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, although Intelligent children are very often acutely observant of facts and events external to themselves and remember them with great accuracy.

Dr. Hans Gross in his book, Criminal Investigation, 1934 edition, at pages 61-62 has written as follows --

the child, as yet devoid of principles, places great faith in the words of grown tip people; so, if a grown up person brings influence to bear on it especially some time after the occurrence, the child will imagine it has really seen what it has been led to believe.

At another place Dr. Haas Gross has remarked as follows J--

The result is the same, when the influence is undesigned. An important event happens; it is naturally much talked of ail sorts of hypotheses are started, there is gossip of what others have seen or might in certain circumstances have seen. If a child, which has itself seen something of the occurrence, hears these conversations, they become deeply engraved on its own mind, and ultimately it believes It has itself seen what the others have related.

Thus, we are of the view that speaking generally children of tender age may not be regarded as trustworthy witnesses.

Now we may proceed to examine the evidence of Akhlesh (PW 2). We may point out that the occurrence took place at some distance away from the house of Brindaban (PW 1) and Akhlesh (PW 2) and in the normal course of events Akhlesh (PW 2) should not have been there. It is not a case where the occurrence took place in front of house or near the house of a witness and in such a case the witness may be called a natural or likely witness. Akhlesh (PW 2) has come out with a pretext for his presence upon the scene of occurrence. He has claimed that he had gone to ease himself along with his father and was coming back after answering the call of nature. Whatever little experience we have got of Indian village life it is beyond our comprehension to envisage a situation where a father, who is a principal in an Intermediate College, would go to answer the call of nature In the company of his eight years son. It is highly unlikely that Akhlesh (PW 2) had accompanied his father to answer the call of nature. It is also unlikely that even the deceased Krishna Kant had gone to answer the call of nature at that time and it was on his way back to his house that he was murdered If Akhlesh (PW 2) is to be believed, the deceased was wearing Kurta. Dhoti, Safi and shoes when the occurrence had taken place. The very fact that Krishna Kant was wearing Safi at the time of his death rules out the possibility that he had gone to answer the call of nature. The matter does not rest here. Akhlesh (PW 2) has stated. In his cross-examination that all the three witnesses viz. Tikaram, Ratiram and khatloo bad accompanied him and his father when they had left their house for the tank where they were going to answer the call of nature. He goes on to state that the three witnesses had gone to the flour mill to get the wheat crushed and after leaving the wheat upon the flour mill they had come upon the tank and after answering the call of nature, all of thorn were returning together. It is highly unlikely that while Akhlesh and his father had proceeded straight to the tank and these three witnesses, who were carrying wheat with them for the purpose of getting the wheat crushed, were returning together after answering the call of nature. Thus, Akhlesh (PW 2) cannot be termed as wholly realiable witness.

Furthermore, three Independent witnesses u e. Ratiram. Tikaram and Khatloo were named in the FIR. No effort was made by the prosecution to examine any one of these witnesses. Where independent witnesses were available but were not examined at the trial, it would be reasonable to presume that either they had not witnessed the occurrence or they were not willing to support the prosecution version of the occurrence.

Under these circumstances, we are not prepared to place much reliance upon the evidence of Akhlesh (PW 2). There was enmity between these four Appellants and the deceased and the contention of the Appellant''s counsel that Krishna Kant was murdered in the late hours of the evening when it was dark and no one had seen the actual murderer and the Appellants were implicated out of enmity has force.

The appeal is allowed and the Appellants are acquitted of the charges with which they were charged- The judgment and order of the trial court are set aside. The Appellants are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged.