Dhirendra Kumar vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 12-09-2006 passed by 4th Additional Sessions Judge, Bilaspur in Sessions Trial No. 25/2006. By the impugned judgment, accused/appellant Dhirendra Kumar has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Case of the prosecution, in brief, is as under:

On 22-06-2005, Fekuram (deceased) was in his house. At about 2 pm, appellant Dhirendra Kumar, armed with a Tangiya (axe), went to the house of the deceased and called him to come out of the house but the deceased did not come out. Thereafter, the deceased took his meal and went towards the street. The appellant met the deceased there and asked him why was he (deceased) creating panchayati (problems) in the appellant''s house and caused the deceased to run. The deceased ran towards the house of Latel Suryawanshi. When the deceased reached near the closed door of the house of Latel Suryawanshi and pushed the door to enter the house, the appellant gave a Tangiya blow on the forehead of the deceased and fled from there. When the deceased pushed the door inside, Ku. Ramala (PW-3) came out of the house and she witnessed the incident. When the deceased pushed the door, Ku. Ramala (PW-3) sustained injury on her left side of forehead. The deceased was taken to CIMS, Bilaspur on the same day. Dr. Vikram Khetrapal (PW-12) examined the deceased, admitted in the hospital and gave his report (Ex. P-24), in which, he found one injury on the left forehead frontal region. The brain matter had come out and the frontal bone was fractured into pieces. The deceased died at about 11 pm. Information of death of the deceased was sent to Police Chowki, CIMS, Bilaspur where Merg Intimation (Ex. P-7) was recorded and regular Merge Intimation (Ex. P-4) was recorded in Police Station, Hirri.

The Investigating Officer reached CIMS, Bilaspur, gave notice (Ex. P-5) to Panchas and prepared inquest (Ex. P-6) on the dead body of the deceased. The dead body of the deceased was sent to CIMS, Bilaspur for post mortem examination vide Ex. P-26 where post mortem examination was conducted by Dr. Vijay Kumar (PW-11), who gave his report (Ex. P-13) in which he found-

i) 8 X 1 cm fracture on left temporal region in bone deep. Brain matter had come out.

ii) blood was oozing out from nose and ear

iii) extra dural Himotoma was present in temporal parietal region

iv) incised wound 6.4 X 08 cm into bone deep on left temporal region

v) blood clots were present

vi) Fracture was present beneath injury

He opined that the cause of death of the deceased was haemorrhage and coma due to grievous head injury and the death was homicidal in nature.

In further investigation, spot map was prepared vide Ex. P-12 and Patwari Lakhanlal (PW-18) also prepared spot map vide Ex. P-25. Memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-8 and at his instance, the Tangiya was seized vide Ex. P-9. Plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-10. Full shirt of the appellant was seized vide Ex. P-11. Dehati Nalishi was recorded vide Ex. P-15. Thereafter, regular FIR (Ex. P-16) was lodged by Panchkunwar (PW-1) in Police Station, Hirri. Ku. Ramala (PW-3) was also sent to Primary Health Centre, Chakarbhata vide Ex. P-27 and Dr. A.K. Sanyal (PW-6) examined her and gave his report vide Ex. P-2, The seized articles were sent to Forensic Science Laboratory, Raipur vide Ex. P-21. FSL Report (Ex. P-29) was received there from.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bilaspur, who, tin turn, committed the case to the Court of Session. Bilaspur, from where, it was received on transfer by 4th Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Shri M.D. Dhote, learned counsel for the appellant argued that the evidence of Ku. Ramala (PW-3) is not reliable. Presence of Ku. Ramala (PW-3) at the place of occurrence has not been established. Looking to the evidence of Ku. Ramala (PW-3), it appears that she was inside the house and when the deceased pushed the door, she sustained injury and became unconscious. Therefore, it is not possible for her to witness the incident. Therefore, the evidence of Ku. Ramala (PW-3) cannot be based for conviction of the appellant.

Smt. Madhunisha Singh, 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. 25/2006. The conviction of the appellant is based on the testimony of Ku. Ramala (PW-3), who is eye-witness of the occurrence and whose evidence is corroborated by medical evidence.

CHILD WITNESS

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 & 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 fee 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, AIR 2008 SC 1460, 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.

Panchkunwar (PW-1) and Jal Bai (PW-2) deposed that the appellant came their house and knocked the door. Jal Bai (PW-2) and Uma came out of the house and they saw that the appellant was standing in front of the door of the house of the deceased and he was calling the deceased and the deceased had gone along with the appellant.

Ku. Ramala (PW-3) deposed that on the date of incident she was watching TV in the house of Ramkumar (PW-4). At about 2:30 pm, she got up for returning her house. As soon as, she tried to open the door of the house, she saw that the deceased was running towards the house of Ramkumar (PW-4) and the appellant was also running behind him and he assaulted the deceased with a Tangiya. She further deposed that the appellant gave Tangiya blow on the head of the deceased. She further deposed that when she tried to open the door, the deceased also pushed the door inside due to which she sustained injury on her forehead and the appellant assaulted the deceased with edged side of the Tangiya. Blood was oozing out. She further deposed that the deceased was taken by his wife.

Ramkumar (PW-4) and Sarita (PW-5) deposed that Ku. Ramala (PW-3) and Sarita (PW-5) were watching TV at the house of Ramkumar (PW-4). Ramkumar (PW-4) deposed that the door of the house was opened with loud sound. On being heard, he came out of his house. When he heard the sound, then he reached near the door and he saw that the deceased had closed the door and was standing near the door and he had pressed his head. He asked the deceased but he was not able to speak. Sarita (PW-5) also deposed that after watching the TV, she came out of the room. She saw that the deceased was standing near the door of the house of Ramkumar (PW-4) and he had pressed his head with his hand and blood was oozing out. At that time, Ku. Ramala (PW-3) was weeping and standing near the door.

Panchkunwar (PW-1) and Jal Bai (PW-2) deposed that Sarita (PW-5) told them that the appellant assaulted the deceased then they reached the place of occurrence. They saw that the deceased was coming out of house of Ramkumar (PW-4) and he had sustained injury on his head. They further deposed that they took the deceased to their house and thereafter the deceased was taken to the Government Hospital, Bilaspur.

Dr. Vikram Khetrapal (PW-12) deposed that on 22-6-2005, at about 4:30 pm, deceased Fekuram was admitted in CIMS, Bilaspur and he died on the same day at about 11:10 pm. He further deposed that his general'' condition was worst and he was unconscious. He further deposed that the deceased had sustained injury on the head. Dr. Vijay Kumar (PW-11) deposed that fracture on left temporal region was present and brain matter had come out. He further deposed that the cause of death of the deceased was haemorrhage and coma due to grievous head injury and the death was homicidal in nature.

The date and time of the incident was 22-6-2005 at about 2:30 pm and Dehati Nalishi (Ex. P-15) was recorded on the same day at about 4 pm. Dehati Nalishi (Ex. P-15) was lodged within VA hours of the incident. The case diary statement of Ku. Ramala (PW-3) was recorded on 22-6-2005, i.e., on the date of incident itself.

Ku. Ramala (PW-3) had disclosed the above facts without delay. Panchkunwar (PW-1) and Jal Bai (PW-2) specifically deposed that the appellant came their house and knocked the door. He had called the deceased and the deceased had gone along with the appellant. It appears that the deceased had gone along with the appellant and after sometime, the deceased sustained injury on his head and Ku. Ramala (PW-3) witnessed the incident. The evidence of Ku. Ramala (PW-3) is corroborated by medical evidence, therefore, her evidence is cogent and reliable and can be based for conviction of the appellant.

We have carefully perused the evidence of Ku. Ramala (PW-3). She specifically deposed that on the fateful day, the appellant assaulted the deceased with the Tangiya. She is an independent witness and she had no motive to implicate the appellant falsely. Her evidence is clinching and cogent. We are of the view that the finding of learned Additional Sessions Judge convicting the appellant on the basis of evidence of child witness Ku. Ramala (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.