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Judgment
Sashikanta Mishra, J.
The appellants have preferred this appeal against the judgment dated 27.09.2008 passed by the learned Additional Sessions Judge, Sundargarh, whereby they were convicted under Sections 302, 201 and 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default, whereof to undergo rigorous imprisonment for one year. It was further directed that the fine amount, if realized, would be paid to the father of the deceased as compensation.
Prosecution case, briefly stated, is as follows: -
On 15.09.2007, the dead body of a 5-year-old boy was recovered from the Minor Irrigation (MI) project pond of the village. The body was identified as that of Dusa, the youngest son of Hiradhar Barik, the informant. Upon the request of the informant, Indramani Khuntia, a co-villager, informed the OIC of Talsara Police Station over telephone. When police arrived at the spot, the informant stated that when he returned from his field at noon, he did not find his son, Dusa, at home. His mother informed him that the deceased had gone to school along with his siblings to attend the Ganesh Puja function. The informant thereafter went to the school, but could not find the deceased. At the school, Rima Khuntia told him that while she was proceeding to the school along with the deceased, the accused persons met them near the embankment and took the deceased with them. When questioned, the accused persons told him that they had left the deceased at home. Thereafter, upon search, the dead body of the deceased was found in the pond with a stone placed over it. The villagers apprehended the accused persons while they were trying to flee from the spot. The OIC, Talsara Police Station, prepared a report on the basis of the information furnished by the informant, read over the same to him and obtained his left thumb impression thereon. Upon completion of investigation, charge-sheet was submitted against the accused persons under Sections 302, 201 and 34 of the Indian Penal Code, 1860.
The plea of the accused persons was one of complete denial.
To prove its case, the prosecution examined eight witnesses and proved nine documents. The defence did not adduce any evidence, either oral or documentary. Furthermore, two material objects were proved by the prosecution.
After analysing the evidence on record, the learned Trial Court held that the prosecution had been able to establish the charges against the accused-appellants U/s 302, 201 and 34 of the IPC. The conviction was based upon the evidence of PWs.1, 3, 5, 6 and 7, the existence of motive, the last-seen theory, recovery of the dead body from the MI pond and the extra-judicial confession allegedly made by the accused persons before the informant and the co-villagers. Accordingly, the learned Trial Court convicted the appellants and sentenced them as stated hereinbefore.
Heard Mr. J.R. Dash, learned counsel for the appellants and Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State.
Mr. Dash assails the impugned judgment of conviction on the following grounds: -
The evidence on record does not prove beyond reasonable doubt that the death of the deceased was homicidal in nature but only that it was caused due to asphyxia because of drowning.
The evidence of PW-3, the child witness, is not reliable as she was clearly tutored which is evident from her answer to the query of the Court that she had come to depose against accused Iswar.
There are discrepancies in the evidence of the prosecution witnesses regarding the time of disappearance of the deceased and the time when he was allegedly seen in the company of the accused persons.
The alleged previous quarrel between the accused persons and the parents of the deceased, by itself, cannot constitute sufficient motive for commission of the offence.
Santamani, another villager who allegedly saw the deceased in the company of the accused persons, was not examined by the prosecution.
The time of recovery of the dead body was not established and, therefore, the prosecution failed to prove beyond reasonable doubt that the deceased was last seen in the company of the accused persons at or around the time of his death.
Per contra, Ms. Suvalaxmi Devi, learned Additional Standing Counsel for the State, would submit that the evidence of PW-3 clearly establishes that the accused persons had taken the deceased away with them. The evidence of PW-7 further establishes that the deceased was last seen in the company of the accused persons near the spot of occurrence. The evidence of PW-6 regarding the previous altercation between the parents of the deceased and the accused persons establishes the motive for commission of the offence. The recovery of the dead body from the pond and the cause of death are corroborated by the medical evidence. It is submitted that all the circumstances, when taken together, form a complete chain pointing unerringly towards the guilt of the accused persons.
Before dealing with the rival contentions, it would be apposite to consider the evidence on record. Perusal of the evidence shows that there is neither any eyewitness to the occurrence nor any other direct evidence. The medical evidence establishes that the cause of death was asphyxia due to drowning. The said aspect is not disputed by either side and is corroborated by the evidence of PW-4, the doctor who conducted the post-mortem examination and prepared the report. The first question that arises for consideration is whether the drowning was accidental or homicidal.
The following injuries were found on the person of the deceased:-
Lacerated injury 2 cm x ½ cm x ½ cm on the inner surface of the upper lip in midline, horizontally.
Lacerated wound 1.5 cm x. ½ cm x ½ cm present horizontally on the lower lip.
While the medical evidence does not, in express terms, indicate that the death was homicidal in nature, PW-4 during his cross-examination has stated that the injuries found on the lips of the deceased are ante-mortem in nature and can happen when the mouth is forcibly pressed by someone and not when a person simply falls into the water. Thus, the evidence of PW-4, supports that the death of deceased was homicidal in nature. That apart, it is borne out of the evidence that a stone was pressed over the body apparently to prevent it from floating. This by itself shows foul play and not accidental fall into the water. The question for determination now is whether the accused-appellants were the authors of the said crime.
As mentioned earlier, there is no direct evidence present in the case to prove the guilt of the accused. The conviction is based primarily on the evidence of PW-3 with regard to the last seen theory corroborated by the evidence of PW-7. The defence argued that the evidence of PW-3 is not reliable due to existence of discrepancies and the possibility of her being tutored. It would apposite to refer to the case of Suryanarayana Vs State of Karnataka, 1wherein the supreme court observed the following regarding the evidentiary value of the testimony of child witness after cross examination: -
5.Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen.While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.
(Emphasis Added)
Basing on the settled position of law, the responsibility of the Court is to check the competence of the child witness to testify. Moreover, when the evidence of the child witness withstood the cross examination and stood firm with her testimony, the Court can presume that the evidence is reliable; except in case of allegation of tutoring where the court must check for further corroboration from other evidence.
In the present case, the trial Court tested the competence of PW-3, the child witness through some preliminary questions and found her fit to testify. Moreover, her testimony did not change even during the cross-examination. Any discrepancies present in her testimony are minor and in our considered view, do not constitute any material contradiction to make her testimony unreliable.
Coming to the claim of her being tutored, the argument stands only on a single answer that PW-3 in the court during her preliminary examination specifically, due to the following statement given by her during her test for assertion of competence. When asked about why she had come to the Court, PW-3 answered as follows: -
“I have come here today to depose evidence against Iswar.”
This in itself, cannot be seen as evidence enough to prove that she had been tutored having regard to the fact that she had already stated against the accused Iswar during her examination by the I.O. The answer rather comes out as truthful and reflects clarity on her part as to what she wanted to depose. We find nothing wrong in it.
As per the settled position of law discussed above, the mere allegation of tutoring, therefore, does not render the testimony of PW-3 inadmissible or unreliable. What is required is a careful scrutiny of her evidence to ascertain whether the same bears the imprint of tutoring or is otherwise inconsistent with the facts and circumstances of the case. In the present case, her testimony has remained substantially consistent during cross-examination and receives support from the evidence of PW-7 and the surrounding circumstances. Defence never suggested as to who tutored her and why. The argument of the defence of PW-3 being tutored can therefore be considered, only to be rejected.
PW-3 stated in her evidence before the Court that the accused persons had taken the deceased with them near the embankment of the village while she was proceeding to school and that no other person was present there at the relevant time. PW-7, in his evidence, stated that he had seen the deceased in the company of the accused persons near the pond at about 11.00 a.m. while they were proceeding towards the pond to take bath. He further stated that he and Santamani were present there and that they left the place shortly thereafter. Thus, the evidence of PW-7 lends corroboration to the testimony of PW-3 regarding the deceased being in the company of the accused persons.
PW-7 also stated that the deceased was wearing a red shirt and pant at that time. The same wearing apparels were subsequently seized from the person of the deceased by the I.O. and sent for chemical examination. This circumstance lends further corroboration to the identification of the deceased as the child who was seen in the company of the accused persons.
The medical evidence regarding the time since death also assumes significance. PW-4 estimated the time since death to be between 12 and 30 hours prior to the post-mortem examination. The post mortem examination was conducted at 1:00 PM on 16.09.2007. Correlating the said estimation with the time of post-mortem examination, the time at which PW-7 saw the deceased in the company of the accused persons falls within the estimated period of death. The medical evidence, therefore, lends support to the proximity between the last-seen circumstance and the death of the deceased.
It was further argued by the defence that Santamani, another witness, who was bathing with PW-7 was not examined by the prosecution. The Supreme Court in the case of Vadivelu Thevar Vs. State of Madras,2 and subsequent cases has repeatedly held that there is no mandatory requirement that the testimony of one witness must necessarily be corroborated by another witness if that witness's evidence is otherwise reliable and inspires confidence. As discussed earlier, the evidence of PW-3 is reliable and the evidence of PW-7 provides sufficient corroboration to her evidence and the prosecution case. Therefore, the non-examination of Santamani is not fatal to the prosecution case.
The prosecution further submits that the presence of the accused at the spot of occurrence during the recovery of the dead body and their subsequent conduct of attempting to abscond and confession before the villagers regarding the commission of the offence further point towards the guilt of the appellant. The defense argues that the confession was not made voluntarily. Reference in this regard may be taken from the case of Papan Sarkar @ Pranab Vs. State of West Bengal3 where the Supreme Court, while considering the circumstances in which an alleged confession was made after the accused had been chased and detained by a mob, emphasized that such confession requires examining whether such statement was voluntary and free from pressure or duress.
In the present case, the informant has stated that the alleged confession was made after the accused persons had been chased and apprehended by the villagers and while they were surrounded by them. In such circumstances, the possibility of pressure or coercion cannot be ruled out and the voluntariness of the alleged confession becomes doubtful. We are, therefore, not inclined to place reliance upon the alleged extra-judicial confession.
However, the conduct of the accused persons at the time of recovery of the body of the deceased can be seen as relevant having bearing over the case as per Section 8 of the Indian Evidence Act, 1872, which is reproduced below for reference: -
“8. Motive, preparation and previous or subsequent conduct.
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” Specifically, the illustration (i) of the section which is reproduced below: -
“(i)A is accused of a crime. The fact that, after commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.” Viewed in the above light, the conducted of the accused person in trying to flee upon recovery of the dead body is highly relevant and significant.
The prosecution further submits that the appellants had a clear motive for committing the offence due to a prior argument that had happened between them and the mother of the deceased, as testified by PW-6, the informant. It is the settled position of law that motive, by itself is not sufficient to hold conviction of the accused. However, motive is a relevant circumstance and may be used as evidence for corroboration.
In the present case, the evidence of PW-6 regarding the previous altercation, though by itself insufficient to establish the guilt of the accused, lends some support to the prosecution case when considered along with the evidence regarding the deceased having been last seen in the company of the accused persons and the other circumstances proved by the prosecution.
The aforesaid circumstances, when considered cumulatively form a complete chain pointing towards the involvement of the accused-appellants in the death of the deceased and are inconsistent with any reasonable hypothesis of their innocence. The evidence regarding the deceased having been taken away by the accused-appellants, his having thereafter been seen in their company near the pond, the proximity between the said circumstance and the time of death, coupled with the recovery of the dead body from the pond in a submerged condition with a stone placed over it, lend support to the prosecution case. The circumstances so established, therefore, lead to the reasonable conclusion that the deceased was not the victim of an accidental drowning and that the accused-appellants were responsible for his death.
The defence has not been able to bring on record any material circumstance which would provide a reasonable and consistent explanation different from prosecution case that the deceased was taken away by the accused persons and thereafter found dead in the pond. We are, therefore, satisfied that the prosecution has established the charge under Section 302 of the IPC against the accused-appellants beyond reasonable doubt.
Coming to the charge under Section 201 of the IPC, PW-5 has stated that the dead body of the deceased was found in the MI project pond, submerged under about four feet of water, with a stone pressing it down. This aspect is corroborated by the evidence of PWs.1, 2, 6 and 7. The stone was also seized by PW-8, the I.O., under the seizure list marked Ext.2. The presence of the stone over the submerged body is a significant circumstance indicating that the body had been deliberately kept beneath the water and that an attempt had been made to prevent it from surfacing.
The said circumstance assumes significance in the context of the prosecution case that the accused persons had taken the deceased away and were thereafter seen in his company near the pond. The body was subsequently recovered from the same pond in a concealed condition. The manner in which the dead body was found, therefore, lends support to the prosecution case that, after the commission of the offence, an attempt had been made to conceal the dead body so as to screen the offender from legal punishment. This clearly proofs the offence U/s. 201 of IPC.
The conviction U/s 34 of the IPC also requires consideration. The evidence of PW-3 is that both the accused persons took the deceased with them, while PW-7 subsequently saw both the accused persons in the company of the deceased near the pond. Their conduct, viewed in the light of the circumstances established by the prosecution, indicates their concerted participation in the occurrence. The acts attributed to both the accused persons are not shown to be isolated or independent acts, but form part of the same transaction leading to the death of the deceased. We are, therefore, satisfied that the prosecution has established the participation of both the accused persons pursuant to their common intention, attracting the provisions of Section 34 of the IPC.
For the foregoing reasons, we are satisfied that the prosecution has successfully established the charges against the accused-appellants under Sections 302, 201 and 34 of the IPC. Their conviction under the aforesaid provisions by the judgment dated 27.09.2008 is hereby upheld.
In the result, the appeal is dismissed. Appellant No.1, who is in custody, shall continue to undergo the remaining period of sentence. Appellant No.2, who is on bail pursuant to the order dated 27.01.2011 of this Court, shall be taken to custody forthwith to undergo the remaining period of sentence. Her bail bonds stand cancelled.
Manash Ranjan Pathak, J. I agree.