Inder Singh vs The State of Pepsu

Chopra, J.—Inder Singh Appellant was tried for the murder of his brother Kehar Singh''s wife, Mst. Indo, with a single stroke of gandasa on her neck when she lay on a cot at her house at village Rainwala, P.S. Sadar Faridkot. He was convicted by the Additional if Sessions Judge, Bhatinda District, at Faridkot u/s 302, I.P.C. and sentenced to transportation for life. The convict has appealed through jail.

The evidence as regards motive is scanty. The suggestion is that Mst. Indo, the deceased, was carrying on a liaison with Sarwan Singh son of Sucha Singh (P.W. 2) and this was resented by the Appellant Sucha Singh deposed that five or seven days prior to the incident in question the accused expressed his resentment over the suspected intimacy of Sarwan Singh with Mst. Indo. The witness thereupon inquired from his son and the latter denying his intimacy with Mst. Indo professed that she was just like a mother to him.

Inder Singh Appellant lived in a house adjacent to that of his brother Kehar Singh. The house of their third brother Chanan Singh'' is contiguous to that of Kehar Singh and has; a common court-yard and the same outer door Chanan Singh is dead and his son Kahla Singh and daughter Barkate are the two eye wit-nesses in the case. Their evidence is that they had come to their house at 1 P.M. on 26-7-1951 to take their meals when they saw the accused striking at the neck of Mst. Indo with a gandasa Mst. Indo was then lying on a cotf in her house near the outer door. The accused warned the two children to be quiet and him self slipped out of the house, mounted the horse that he had left under a Neem tree at a few paces and disappeared.

The witnesses in the meantime woke up Mohinder Singh (P.W. 5) who was sleeping at a distance of about 30 karams under a Tahli tree, told him what they had seen and also pointed out the accused riding the horse. Alarm raised by the children attracted Sucha Singh chaukidar and Gurbachan Singh (P.Ws. 2 and. 6) and they too were apprised of the murder by the children. All of them saw Mst. Indo-lying dead on the cot. Report of the incidents was lodged by Sucha Singh at Chauki Sadaq at a distance of six miles from the village, at 5 P.M. the same day. M. Hazura Singh A.S.I., recorded the report in the roznamcha and sent a copy of it to P.S. Sadar Faridkot'' for registration of a case. He himself left for the spot and reached there within another two hours. After preparing the necessary memos he recorded the statements of the two children the same evening.

Post mortem examination on the dead body of Mst. Indo conducted by Dr. P.L. Bedi, Civil Surgeon, Faridkot, revealed that it had an incised wound 5�" x 2" on front of the neck above the clavicles. The wound went deep into the neck cutting through trachea and large vessels and resulted in instantaneous death., The injury, in the opinion of the doctor, was sufficient in the ordinary course of nature to cause death.

The principal ground of attack on the evidence of Kahla Singh and Barkate is that they are both of tender age. The boy is aged'' 12 and the girl 7. Placing his reliance on a number of authorities, Mr. D.S. Nehra, the learned Counsel for the Appellant urged that a child is always to be regarded as a dangerous witness because he may not understand the sanctity of oath and comprehend the danger and impiety of falsehood and also because he can easily be taught to relate a story with the conviction that he has in fact seen it. While appreciating the force of the salutary principle enunciated by the counsel I cannot also lose sight of the fact that it is not one of invariable application. It cannot be laid down as an infallible rule that in no case the evidence of a child below a particular age should be accepted or acted upon; every case must depend on its own facts. If in a particular case the possibility of the witness having been tutored can with certainty be excluded and his evidence is free from any defect, is fairly impressive and can safely be regarded as a true disclosure, of the facts as they occurred, it ought not to be rejected simply because it has come from the mouth of a boy or a girl of tender age. The competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess, and no fixed rule can be laid down as to the credit that should be assigned to his testimony. Obviously the question depends upon a number of circumstances, such as the possibility of tutoring, the consistency of the evidence, how far has it stood the test of cross-examination and how far it fits in with the rest of the evidence.

In the present case it can hardly be suggested that the witnesses were tutored. (His Lordship reviewed the evidence and continued): I have, therefore, no doubt, in my mind that they were natural witnesses of the occurrence and that they had. not been interfered with when they denounced the Appellant to be responsible for the single fatal blow to Mst. Indo At the trial they successfully stood the test of, cross-examination and there is nothing improbable in the story told by them. The learned trial Judge who had the inestimable advantage of hearing statements of the witnesses and of forming his own opinion from their demeanour as to the truth and credibility of the story put forth by them, has believed them as truthful witnesses and I do not see sufficient grounds to differ from the conclusion arrived at by him.

The evidence of the two eye witnesses is further attacked on the ground that they had denied the so patent deformity in two of the limbs of the accused and had falsely introduced the presence of a heap of dung with the help of which the accused mounted the horse. (His Lordship considered these contentions and negative them continued).

It was also contended that the prosecution had intentionally withheld the persons who were admittedly present under the Tahli tree where Mohinder Singh was sleeping. Some of them were boys of tender age but one or two were adults also and it was urged that their non-production was fatal to the prosecution case. It has to be remembered that the place of occurrence was not visible from the Tahli tree and none of those persons is alleged to have seen what occurred inside the house. They, therefore, could only have vouchsafed to the presence of the two child-witnesses and to the facts disclosed by them after the murder. For this, there is already ample and credible evidence on the record and there was no good in multiplying the same. As already observed nothing material could be pointed out against the three witnesses examined on the point and the non-production of others who were not in a position to go any further, cannot detract from their testimony or adversely affect the prosecution case.

The accused simply denied the charge and stated that the children deposed against him at the instance of their mother Mst. Shamo, whose relations with him were not cordial. He did not lead any evidence in defence and there is nothing on record to substantiate his assertion of enmity with Mst. Shamo.

Lastly, it is contended that the accused, a cripple, with his right arm and left leg atrophied could neither walk or wield a gandasa, nor could he mount or ride a horse. Since the alleged physical deformity falsified the entire prosecution version we called the accused in Court to see the condition of his limbs ourselves. Instead of ourselves hazarding an opinion on the physical capability of the accused to do the acts ascribed to him we got him medically examined by Dr. Jagdish Singh, First Surgeon, Rajindra Hospital, Patiala and recorded the latter''s statement as a court witness. The statement of the expert in, the science is to the effect that there is some wasting of the accused''s right fore-arm, which was confined only to the lower portion of it and was not due to any organic disease. The rest of his right arm and the whole of the left arm are quite normal. Their being no organic impediment in the use of his upper extremities and their being no stiffness of the fingers of his right hand, the Doctor is of the opinion that the accused can hold and wield a weapon with both of his arms and that he, therefore, was capable of having inflicted the particular injury to the deceased with the gandasa (P-3) shown to him in Court.

As regards the left leg, the Doctor found the marked wasting in it to be confined to the muscles of its front aspect, which probably was due to an attack of poliomyelitis or peripheral neuritis. His right leg, however, is quite normal and the left leg also can be used to some extent. The accused can, therefore, walk-though not like a normal man and with the same speed. The doctor is further of the opinion that the accused can, mount a saddled horse unaided and ride it. As regards his capability to mount a horse without a saddle, the doctor stated that he could not give any; definite opinion because he himself did not know much of riding. According to the prosecution the horse had no saddle on it at the time, and the position taken by the accused is that he could ride only when he was placed on the back of a horse by somebody else.

He admitted that he owned a horse and that he was arrested when he was grazing it at the outskirts of the village. It is also in evidence that the accused had often been seen riding the horse. No question was, however, put to the witnesses as to whether they had also seen him mounting it himself. From the condition of his limbs, as described by Dr. Jagdish Singh, I am inclined to think that the accused can himself mount an unsaddled horse as well, particularly by getting on a raised ground and making the horse stand close to it. The accused is keeping a horse for some years and is using it for the purpose of riding. It can be safely presumed that he can or has made some contrivance to climb it as well. There is no evidence and nothing to suggest that every time he wanted to ride he was placed on the back of the horse by someone else. For all these; reasons I do not find any physical impossibility or even an improbability in the prosecution story that the accused dealt the fatal blow to Mst. Indo and thereafter disappeared by riding, a horse.

As regards the offence there can be no dispute. The injury on the neck given by a formidable weapon cut through the trachea and large vessels and resulted in instantaneous death. The intention of the assailant could have been no other than to take the life of, the victim. The Appellant has, therefore, been rightly convicted u/s 302, I.P.C. He has already been awarded the lesser penalty provided by the law.

The learned trial. Judge appears to have been influenced by the malingering attitude adopted by the Appellant and for that reason made a recommendation to the local Government to commute his sentence to seven years rigorous imprisonment. The evidence of Dr. Jagdish Singh and his opinion with respect to the condition of the Appellant''s limbs makes me think that no such recommendation is necessary. In the result the appeal fails and is dismissed.

Gurnam Singh, J.

I agree.