Isha Alias Yusuf Khan vs Hazi Rashid

This appeal by the sole appellant is directed against the judgment dated 30.07.2007, passed by First Additional Sessions Judge, Mandla in S.T. No. 89/2007, whereby appellant has been found guilty for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs.1,000/- and in default of payment of fine, to further suffer rigorous imprisonment for four months.

The prosecution case, in brief is that appellant Bhajan @ Rambhajan at around 8 P.M. in the night of 26.04.2007, committed the brutal murder of his elder brother Kehar Singh by inflicting a serious injury on his head with an axe on account of land dispute between the brothers.

According to the prosecution, the entire incident was witnessed by P.W.-2 Maheshwari bai, daughter of sister of the deceased and appellant and P.W.-12 Sohan Singh, son of the deceased.

The report in respect of the incident was lodged by PW.-1 Samlobai at 10 P.M. on the same day.

On the basis of FIR (Ex. P-2), subsequent investigation followed. Inquest report was prepared and body of deceased was sent for post mortem. Site plan was prepared and the statement of witnesses were recorded.

The post mortem on the body was conducted by P.W.-11 Dr. M.L. Chourasiya. Post mortem report (Ex.-16) indicated the cause of death as shock due to excessive haemorrhage on account of the injuries. The offending weapon, i.e., the axe was seized from the appellant, on his direction and human blood was found on the said axe.

The trial Court on the statement of P.W.-2 Maheshwari bai (minor) and P.W.-12 Sohan Singh, who are the alleged eye witnesses to the incident has recorded a finding against the appellant to the effect that he is guilty of the offence punishable under Section 302 of the I.P.C. and has sentenced him to undergo life imprisonment.

Having heard the learned counsel for the parties and on meticulous perusal of the record, it is observed that the evidence of P.W.-2 Maheshwari, aged about 12 years is very consistent and unshakable. She in no uncertain terms has stated that her Chote Mama

(accused) assaulted her Bade Mama (deceased) with axe on the head, who then fell down. She has also confirmed the presence of Sohan Singh (P.W.-12) at the place of occurrence.

P.W.-12 Sohan Singh has corroborated the statement of P.W.-2 Maheshwari bai. He has stated that his uncle (accused) took his father to his house.

On hearing the noise of altercation, he went to see and saw the accused assaulting his father on the front side of head with the axe, as a result deceased fell down and died.

In Rajkumar Vs. State of M.P. (2014) 5

SCC 353, the Supreme Court has observed thus :-

"18. It is a settled legal proposition of law that 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 or extreme old age or disease or because of his mental or physical condition. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the 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. The trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him.

This Court in State of Madhya Pradesh v. Ramesh, (2011) 4 SCC 786, after considering a large number of its judgments came to the conclusion as under:

"14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition."

In the instant case, P.W.-2 Maheshwari bai, the eye witness was a child of 12 years of age at the time of incident. The Trial Court has found her worth reliance as she has understood the questions put to her and was able to answer the same. From the statement of P.W.-2 Maheshwari bai, it is clearly established that P.W.-12 Sohan Singh was also present at the time of occurrence.

P.W.-12 Sohan Singh, remained unshakable and consistent in his statement despite his detailed cross-examination. The evidence of P.W.-2 Maheshwari bai and P.W.-12 Sohan Singh are in conformity with the FIR and the medical evidence. P.W.-11 Dr. M.L.

Chourasiya has opined that the single injury on the parietal region of the head of the deceased has been caused by the seized weapon.

On the basis of the aforesaid evidence on record and the clear unimpeachable and unassailable statement of P.W.-2 Maheshwari bai and P.W.-12 Sohan Singh, the trial Court has recorded a finding of conviction of the appellant.

In view of the aforesaid facts and circumstances of the case, we do not find any illegality or infirmity in the conclusion recorded by the trial Court in recording a finding of guilt against the appellant.

The conviction of the appellant is accordingly upheld. It is informed that the appellant is in jail, it is ordered that he shall suffer out the remaining part of his sentence in accordance with the conviction recorded by the trial Court.

The appeal being meritless is accordingly dismissed.