Jib Nath Acharya vs State of Sikkim

Sunil Kumar Sinha, Actg. C.J.—This Appeal is directed against the Judgment dated 31.10.2011 passed in S.T. Case No. 16/2008 by the Sessions Judge, South and West, Namchi. By the impugned judgment, the Appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- with default sentence of S.I. for six months.

The facts, briefly, stated are as under:--

"2.1 Deceased, Sabitri Biswakarma, was daughter of Bal Kumari Biswakarma (P.W.-1). Bal Kumari was residing in village - Paiyong, South Sikkim. The deceased was residing in an other village in her matrimonial house. On 11.05.2008, the deceased had visited the house of her mother (P.W.-1) along with her son Binay Biswakarma (P.W.-3) and niece Bishnu Maya Biswakarma (P.W.-2). They had stayed in the night in village - Paiyong. On the next morning, i.e. 12.05.2008, at about 10:15 a.m., deceased was returning to her In-laws place along with her niece (P.W.-2) and son (P.W.-3). On the way, the Appellant met them in front of his house and took the deceased in the veranda of his house and attacked over her by khukuri. The deceased sustained multiple serious injuries and succumbed to those injuries. In fact, there was decapitation of head.

2.2 The incident was witnessed by Bishnu Maya (P.W.-2) and Binay (P.W.-3). They immediately rushed to Bal Kumari (P.W.-1) and narrated the entire incident, who lodged First Information Report (FIR Exbt. 3).

2.3 Inquest on the dead body was prepared and it was sent for post mortem. The post mortem examination was conducted by Dr. K.S. Gurung (P.W.-4), who found following injuries on the dead body of the deceased:--

(i) Incised wound 8 x 2 cm. on the right side of frontal area;

(ii) Incised wound 12 x 2 cm. on the left side of neck;

(iii) Incised would 7 x 2 cm. on the back side of the right shoulder;

(iv) Incised would 3 x 2 cm. in the right hand;

(v) there was decapitation of the head below the level of thyroid cartilage.

All the injuries were ante-mortem caused by the sharp edged weapon and cause of death was shock as a result of haemorrhage due to above injuries and it was homicidal in nature. The autopsy report is Ext. 12.

2.4 In further investigation, a khukuri was seized from the possession of the Appellant vide Seizure Memo Ext. 17. The khukuri and other articles belonging to deceased were sent for their chemical examination to Central Forensic Science Laboratory (CFSL), Kolkata, from where a report (Ext. 14) was received. According to CFSL report, human blood was found on almost all the articles including khukuri seized from the possession of the Appellant.

2.5 The case of the prosecution was based on eye-witness account of Bishnu Maya (P.W.-2) and Binay (P.W.-3). There was another piece of evidence, that is, extra judicial confession made by the Appellant before Smt. Mala Bhujel (P.W.-7) and Nisha Bhujel (P.W.-9). The learned Sessions Judge relied on the testimonies of the eye-witnesses as also the two witnesses of extra judicial confession and held that the Appellant had committed murder of the deceased in the above manner. The Appellant, thus, was convicted and sentenced as above. Hence, this Appeal."

Mr. A.K. Upadhyaya, learned Senior Advocate appearing on behalf of the Appellant, has argued that the two eye-witnesses were child witnesses; they were not reliable; there were contradiction in their evidence; there was a likelihood of their tutoring; they were close relatives of the deceased, therefore, conviction based on their testimonies cannot be sustained. He further argued that the alleged extra judicial confession was not proved as, according to the above two witnesses (P.W.-7 and P.W.-9), the Appellant simply told them that he had committed a murder but he did not give the detail as to whose murder he had committed.

On the other hand, Mr. Karma Thinlay, learned Additional Public Prosecutor appearing on behalf of the State, has supported the judgment of the Sessions Court. He has argued that both the eyewitnesses were natural witnesses and were fully reliable; there was no infirmity in their evidence; their evidence was fully intact; therefore, the conviction was well founded.

We have heard learned Counsel for the parties.

It comes in the evidence of Bishnu Maya (P.W.-2) and Binay (P.W.-3) that while returning along with deceased from the house of Bal Kumari (P.W.-1), when they reached near the house of the Appellant, the Appellant called the deceased and asked her to take her money from him. Thereafter, the Appellant forcibly took the deceased to the veranda of his house where the deceased sat on a chair. The Appellant then brought a bag containing some letters and then, he brought a khukuri and gave khukuri blows on the neck and shoulder of the deceased. Seeing this, they immediately rushed to the house of their grandmother (P.W.-1) and disclosed the incident to her.

Binay (P.W.-3) is son of the deceased. He also deposed in similar fashion. He clearly deposed that firstly, the Appellant took out some letters from the bag and thereafter, took out a khukuri from the said bag and chopped his mother on head and shoulder.

Bishnu Maya (P.W.-2) was aged about 14 years and Binay (P.W.-3) was aged about 12 years. We have carefully gone through the evidence of these two eye-witnesses. There is no material contradiction in their evidence. Their evidence is clear. Both have fully corroborated each other on the point that the Appellant had attacked over the deceased by a khukuri in the veranda of his house, which was adjacent to the courtyard where these witnesses were present. The presence of these two eye-witnesses cannot be doubted because there is sufficient evidence to the effect that they were accompanying the deceased while she was returning to her matrimonial house. The Appellant was well-known to them. The incident took place in broad day light. Therefore, there was no possibility of mistaken-identity.

The evidence of these two eye-witnesses was corroborated by the evidence of Bal Kumari (P.W.-1) as also the contents of the FIR (Exbt. 3), which contains the name of the Appellant as assailant of the deceased. Bal Kumari (P.W.-1) has deposed that these two eyewitnesses came to her house and stated that the deceased was attacked by the Appellant by a khukuri.

The evidence of the eye-witnesses was further corroborated by the evidence of Dr. K.B. Gurung (P.W.-4), who conducted autopsy on the dead body of the deceased and found above injuries which could have been caused by a sharp-edged weapon like khukuri. The blood stains found in chemical examination vide CFSL report (Ext. 14) also supports the case of the prosecution.

Mr. Upadhyaya has contended that the eye-witnesses being child witnesses and close relatives of the deceased were not reliable.

In Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, it was held that normally a close relative of the deceased would be most reluctant to spare the real assailants and falsely mention the names of other persons as those responsible for causing injuries to the deceased. Further, in many subsequent judgments, it has been held by the Supreme Court that relationship is not a factor to treat a witness as untruthful. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. A series of judgments has been rendered by the Supreme Court on the said point, few of them are - Harbans Kaur and Anr. v. State of Haryana : 2005 AIR SCW 2074; Namdeo v. State of Maharashtra : 2007 AIR SCW 1835; Sonelal v. State of M.P. : 2008 AIR SCW 7988; Dharnidhar Vs. State of U.P. and Others, ; Rizan and Another Vs. State of Chhatisgarh, through The Chief Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh, etc.

Thus, the arguments advanced by Mr. Upadhyaya on the ground of relationship cannot be accepted.

So far as tutoring is concerned, one cannot deny its possibility but if the same is being fully ruled out and there is nothing on record against the testimony of a child witness, conviction can be based even on the solitary testimony of such child witness.

In State of M.P. Vs. Ramesh and Another, , quoting may earlier judgments, it was held by the Supreme Court that "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, as we have already said, on a close scrutiny of the evidence of two child witnesses, we find nothing on record to hold that they were tutored. We are of the view that learned Sessions Judge was fully justified in relying on the testimonies of two child witnesses which were sufficient to hold the Appellant guilty of offence punishable under Section 302 IPC.

So far as the evidence of extra judicial confession is concerned, we accept the argument of Mr. Upadhyaya that the two witnesses of extra judicial confession did not depose that the Appellant had stated to them that he had committed murder of deceased Sabitri. Even if we take that the Appellant had stated before them that he was coming after committing murder, it does not mean that he made confession to the effect that he had committed murder of the deceased. Thus, the learned Sessions Judge was not justified in holding that the evidence of extra judicial confession was also proved against the Appellant.

Even if we take out the evidence of extra judicial confession from consideration, we find that the guilty of the Appellant was fully established on the testimonies of the two eye-witnesses, which the Sessions Judge has also relied. The evidence of these two eyewitnesses was sufficient to hold the Appellant guilty of the offence punishable under Section 302 IPC.

For all these reasons, we do not find any substance in the Appeal. The Appeal filed by the Appellant, therefore, is liable to the dismissed and is hereby dismissed.