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Judgment
Surendra Singh, J.—The challenge in this appeal is the judgment and order dated 31st March, 1982 passed by VI Additional Sessions Judge, Deoria in ST No.371 of 1981 (State Versus Ram Bharosa and others), convicting and sentencing the Appellant under Section 364 read with Section 34 IPC for 7 years rigorous imprisonment and under Section 302 read with Section 34 IPC for life imprisonment.
FACTS
The allegations of the prosecution in brief are as follows:
Incident happened on 23.6.1981 in early morning.
In this incident one Smt. Surja (the Deceased) aged about 65 years was murdered and her grand son Subhash aged about 10 years has witnessed the incident and lodged the FIR.
Subhash (the Informant) lodged the FIR at about 9:30 hours on the same day i.e. 23.6.1981 which was registered as Case Crime No.148 of 1981 under Sections 302 and 201 IPC at Police Outpost Ekauna, Police Station Rudrapur, District Deoria.
The Deceased and the Appellant, Ram Bharosa were the resident of Village Kauliya (Dharmpur) of Police Station Rudrapur, District Deoria.
The Deceased, Smt. Surja was the widow of Prithvipal. She had no son, rather she had only three daughters. All of them were married and were living in their matrimonial houses.
It is alleged that Subhash (PW 3), a boy of 10 years used to look after his grandmother and sometimes he stayed with her in the village.
The AccusedAppellant is the son of Jaipal who is brother of husband of the Deceased and there was some dispute between the parties regarding agricultural land.
It is alleged that on the date and time of the incident Subhash (PW 3) was staying with the Deceased. In the night of 22/23.6.1981 both of them slept on one cot in the courtyard of the house.
As per the allegation of FIR, the Appellant reached in the courtyard and forcibly lifted the Deceased and took her towards west along with two other unknown companions who were armed with latthi and spear.
Subhash, who was sleeping on the same cot, identified the Appellant in the moonlight and he objected but he could not do anything on account of threat given to him.
When Subhash saw in the morning the pool of blood and trail of blood in western side of the house through which he reached upto river. Thereafter on the advice of covillagers he went to the Police Outpost Ekauna, Police Station Rudrapur, District Deoria and narrated the entire incident to one Ram Sajeewan Yadav constable (PW 2) and accordingly the chick (Ext.Ka2) was prepared.
In consequence thereof, case was registered in GD (Ext. Ka3) at the same time.
On 24.6.1981 at about 10:30 hours, the dead body of the Deceased was recovered from the river.
SI, Kailash Mohan Srivastava (PW 8) prepared inquest report (Ext. Ka7) of the dead body and other papers. Thereafter the dead body was sealed and sent for postmortem through constables Alakh Niranjan Singh and Dularey Singh.
The Deceased was about 65 years of age and died more than 2 days before. The body was highly decomposed. Regor mortis was passed away both upper and lower limbs, abdomen was distend. Skin peeled of all over the body. Foul smell was present. The following antemortem injuries were found on her person:
(i) Penetrating wound 1� cm x � cm x bone deep left side neck near branchis;
(ii) Penetrating wound 1� cm x 1� cm x chest cavity deep front side of chest between both breasts;
(iii) Penetrating wound 1� cm x 1 cm x chest cavity deep front of manobra sternum;
(iv) Penetrating wound 1� cm x � cm x 1 cm deep left side of chest just on the nipple;
(v) Multiple penetrating wound in area of 4cm x 3cm part of the right side chest, just below the right breast each is 1cm x � m x chest cavity deep;
(vi) Penetrating wound 1� cm x 1 cm x abdominal cavity deep right iliac fossa, 5 cm above iliac crest through which a loop of intestine came out;
(vii) Penetrating wound 2� cm x 1 cm x abdominal cavity deep, 3 cm above the injury no.6 through which intestine came out;
(viii) Multiple abrasion in an area of 5 cm x 3 cm left side of shoulder;
(ix) Penetrating wound 1 cm x � cm x bone deep on the left knee;
(x) Penetrating wound 1� cm x � cm x bone deep on the dorsum of the left palm.
On external examination sternum was found punctured. Both lungs were found lacerated, membranes were also found lacerated. Intestines were found badly lacerated and congested. Faecal matter was coming out. Bladder was full. Abdomen was empty.
In the opinion of Doctor, death of the Deceased was caused due to shock and hemorrhage as a result of injury.
The IO investigated the case and submitted charge sheet against the Appellant and two others, namely, Ram Adhar and Tufani on 6.7.1981 (Ext. Ka15). On the basis of charge sheet (Ext. Ka15), the CJM, Deoria summoned the Accused and committed the case to the court of sessions where it was registered as ST No.371 of 1981 (State Versus Ram Bharosa and others). Additional Sessions Judge, Deoria on 13.11.1981 charged the Appellant and two others for the offence punishable under Section 364 read with Section 34 IPC, 302 read with Section 34 IPC. and 201 IPC.
Since the Appellant abjured the charges, therefore, the trial proceeded against them.
In order to cement the charge and prove its case, the prosecution examined following witnesses.
(i) PW 1, Dr KP Verma, conducted the postmortem
(ii) PW 2, Ram Sajiwan Yadav, constable, made GD entry.
(iii) PW 3, Subhash ( the Informant)
(iv) PW 4, Ram Kewal
(v) PW 5, Ram Nagina
(vi) PW 6, Sunder
(vii) PW 7, Ram Lakhan Singh
(viii) PW 8, Kailash Mohan Srivastava, IO
(ix) PW 9, Alakh Niranjan Singh, Constable who carried the dead body to the mortuary for postmortem.
Sri Rama Shanker Shukla, DW 1, Paras Nath Singh DW 2 and Sri O.P. Saxena, DW 3 were also produced by the accused in their defence.
Amongst other, the prosecution has filed following documents:
(i) Postmortem Examination Report (Ext. Ka1)
(ii) FIR (Ext. Ka2)
(iii) Panchayatnama (Ext.Ka3)
(iv) Site Plan (Ext.Ka5)
(v) Recovery memo of bloodstained and plain earth (Ext.Ka6)
(vi) Inquest Report (Ext. Ka7)
(vii) Fard Baramadagi of the dead body (Ext.Ka14)
The Appellant relied upon following documents:
(i) Copy of the sale deeds executed by Appellant ( Ext. C1 and C2)
(ii)Copy of the Khatauni of year 1981 ( Ext. C3).
On 25.6.1981 the statement of Subhash (PW 3) under Section 161 CrPC was also recorded.
The parties are related to each other. The relevant pedigree is as follows:
Baran
Jaipal Prithvipal Achhaibar
Ram Bharosa Smt. Surja
(the Deceased)
Smt. Champa (wife of Kalicharan)
Subhash
(the Informant)
Jagdish Om Prakash Jai Prakash
The statement of Appellant was recorded under Section 313 CrPC on 16.2.1982. He denied his involvement in the incident and stated that he has been falsely implicated due to enmity. Additional Sessions Judge by his judgment dated 31.3.1982 convicted the Appellant and awarded the following sentences:
(i) Seven years rigorous imprisonment under Section 364 read with 34 IPC.
(ii) Life imprisonment under Section 302 read with Section 34 IPC.
(Iii) Hence the present appeal.
(iv) Since the prosecution could not prove guilt of accused Ram Adhar and Toofani beyond reasonable doubt, they were acquitted of the charges on 31.3.1982.
POINTS FOR DETERMINATION
We have heard Sri BD Misra, learned counsel for the Appellant and Sri AK Shukla, learned AGA for the State. Following points arise for determination;
(i). Whether the Appellant had any motive to commit this crime?
(ii). Whether the testimony of the child witness, Subhash (PW 3) is sufficient to prove the guilt of the Appellant?
(iii). Whether FIR was antetimed?
(iv).Whether the Appellant was involved in this incident and if the answer is in affirmative, then what punishment should be awarded?
1st POINT: THE APPELLANT HAD MOTIVE.
There is no dispute that accusedAppellant Ram Bharosa was nephew of the deceased. Smt. Surja was the widow of Prithvipal while accusedAppellant was the son of Jaipal brother of Prithvipal. The Khata of Jagdish, Prithvipal and Achhaibar was joint. After death of Prithvipal name of Smt. Surja, the Deceased was recorded in the revenue records in his place. Simultaneously, the name of Om Prakash, Jaiprakash and Jagdish were also recorded after death of their father Achhaibar. All of them including Smt.Surja Devi, the Deceased were the cotenureholders of plot of Khatauni No.650 measuring one acre and forty six decimals. It is further evident that the accused Ram Bharosa transferred his share of the joint holding from Khatauni No.650 to the outsiders of the family. Consequently, their arose dispute between the deceased and the accusedAppellant and also transferees regarding the possession of the said land. A Panchayat was also held to settle the dispute between the parties. Both the accused and transferees did not agree with the decision of the Panchayat. Subhash (PW 3) had deposed that he and Deceased went to the outpost Ekauna number of times to make complaint regarding possession of land against accusedAppellant and transferees and local police came to their help. Thus there was dispute regarding the possession of the land of joint khata between the Deceased, accused appellant and transferees. It transpires from Khatauni C3 of which the Deceased was cotenureholder and she was intending to transfer her share to sons of her daughters and the accusedAppellant being cotenure holder and nephew of the Deceased, was interested in taking aforesaid land. This provided another motive to the accusedAppellant to murder Smt. Surja. It is established that relations of the Deceased and the accusedAppellant were not good and the Deceased made several complaints to the police regarding possession of the disputed land against him. Thus accused had strong motive for the commission of the crime in order to grab her land.
2nd POINT: TESTIMONY OF THE CHILD WITNESS SUFFICIENT.
The entire prosecution case is based upon the solitary evidence of Subhash (PW 3) who was a child witness aged about 10 years. The law recognizes the child as a competent witness but the evidence of the child witness requires strict and careful scrutiny. There is no rule that even if the evidence of a child who is able to form a proper opinion about the nature of incident and he is found reliable, the conviction cannot be based on it unless it is corroborated by some substantial evidence. It is contended that rule of prudence requires that statement of child witness cannot be accepted unless corroborated. We do not accept this contention. Evidence, if admissible, the Court can act upon it. Requirement of corroboration is just a sound rule of practice and prudence and not to rely upon the uncorroborated evidence of a child whether sworn or unsworn. It is not the rule of law. However, in the absence of any evidence regarding possibility of coaching or tutoring such witness, the testimony of such child witness cannot be outrightly rejected.
It has been held in the case of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) Supreme Court Cases (Cri), 685 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 under Section 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."
Similar view was followed Hon''ble Apex Court in the Cases of Ratansinh Dalsukhbhai Nayak Versus State of Gujrat, 2004 Supreme Court Cases (Cri) 7 and Himmat Sukhdeo Wahurwagha and others Versus State of Maharashtra (2009) 3 Supreme Court Cases (Cri) 1.
Conclusively, Subhash (PW 3) disclosed the name of the accusedAppellant soon after the incident and at the earliest opportunity. There was also no occasion for tutoring or coaching as there was no body in the village to help him. He was living with the Deceased and after her death he remained all alone. Subhash (PW 3) has deposed corroborating the version of the FIR which goes to show that he has given the correct version of the incident and there is no question of his tutoring or coaching. The police record shows that he reached the police outpost all alone. In these circumstances, even if he did not disclose the name of any person prior to reaching the police outpost is not relevant. In these circumstances, there is no question of tutoring. Moreover, there was no reason as to why he would falsely implicate the Appellant. This witness was crossexamined at considerable length and in spite thereof he had described in detail the scenario implicating the accusedAppellant to be the author of the crime. Section 118 of the Indian Evidence Act does not preclude a child from being a witness and the only test that is applicable is whether he was able to discern between right and wrong. The appellant''s counsel pointed out certain discrepancies which are of very minor and futile nature and in no way affect his credibility. Perceived, in this view it is held that he was a competent witness and his testimony cannot be discarded merely on the ground that he is uncorroborated child witness. Thus implicit reliance can be placed on his statement to base the conviction of the accusedAppellant.
3rd POINT: FIR IS NOT ANTETIMED.
The chik report (ExtKa2), according to Ram Jiyawan Yadav (PW 2), was prepared at 9:30 hours on 23.6.1981 which was sent to the police sation on the same day. Alakh Niranjan(Constable, PW 5) reached at the police station Rudrapur along with chik report and GD and entry of GD at Rudrapur was also made on 23.6.1981 at 16:10 hours, copy of which is Ext. Ka16. It is beyond imagination that GD of Rudrapur was also lying vacant till then. IO Kailash Mohan Srivastava (PW 8) has stated that he immediately started by a jeep to the place of incident and reached there at about 20:00 hours. His statement is corroborated by Subhash (PW 3) that IO came to the house in the night. Further chik report (Ext.Ka2) reached the police office on 25.6.1981. This fact has been certified by Ram Jiyawan Yadav (PW 2). Since the chik report reached at the police station Rudrapur on 23.6.1981 at 16:10 hours. Obviously, it was sent on the next date on 24.6.1981 from the police station and the CO put his signature on the same on 25.6.1981. As regards, the papers of case diary Parcha No.1 is dated 23.6.1981 and Parcha No.2 is dated 24.6.1981. After inspecting the spot on 23.6.1981, Kailash Mohan Srivastava (PW 8) stayed at the police outpost Ekauna and did not go to the police station Rudrapur. He submitted both these papers on his return at Rudrapur on 24.6.1981. Consequently, these papers were received at the police office on 25.6.1981. Paran Nath Singh (DW 2) who was reader of CO Hata appeared as defence witness and has proved the same. From it may be concluded that the FIR was not antetimed. The investigation was very fair and is untainted.
4th POINT: THE APPELLANT WAS INVOLVED IN THE COMMISSION OF CRIME.
The counsel for the appellant submitted that the prosecution case is doubtful due to following reasons:
(i). Prosecution has failed to produce any independent witness.
(ii). The statement of Subhash (PW 3) suffers from material discrepancy.
(Iii). In the absence of any source of light,it was not possible to identify the Appellant.
(iv)None of the witnesses has seen the actual incident.
(i) NonProduction of Independent Witness.
The law recognizes a child as competent witness provided he is not under influence or tutoring. Normally, love, hatred, emotion, hypocrisy, consideration of religion, rank, fortune, caste and creed are yet unknown to the children. On the careful scrutiny of testimony of Subhash (PW 3) we find that his evidence inspires full confidence. Apparently, he was crossexamined at great length at the evidence stage on all aspect of matter but there is not a single circumstance to reject his testimony. His statement is wholly consistent all through regarding the commission of the incident. AccusedAppellant was previously known to him and there was no question of mistaking identity. There was hardly any reason to falsely implicate accusedAppellant, thereby concealing the actual occurrence. He is natural and independent witness, his statement cannot be discarded on the ground that he being relative of the Deceased. The witness is the natural one and possible eyewitness of the incident and he cannot be said to be interested. In these circumstance, Subhash (PW 3) cannot be said to be interested witness as he has no motive and interest in the conviction of the accusedAppellant and, therefore, there is hardly any reason to reject his testimony.
(ii) Contradictions Are Not Material
Indisputably, on the fact of the investigation, there are some very minor contradictions between the statement of Subhash (PW 3) and the IO. Such minor inconsistencies are wholly immaterial. They cannot affect the statement of Subhash (PW 3) for the reason that all the contradictions pointed out are in the investigation in which Subhash (PW 3) did not take any rest and these contradictions cannot affect his statement regarding the main incident. The only contradiction pointed out in respect of commission of this incident was regarding removal of Tatti of the Sahan by the Deceased in the night or by the accused persons in the early morning. There is no question of seeing whether it was removed by the Deceased or the accused. Too much importance cannot be given to minor discrepancies which did not go to the root of the matter and shake the version of the witness, therefore, it cannot be annexed with undue importance, moreso, when all important factors echo in favour of the version narrated by the witness. Such contradiction pointed out is wholly immaterial to hold the witness unreliable. Subhash (PW 3) had full opportunity to see accusedAppellant. Consistent case of the prosecution is that Subhash (PW 3) and the Deceased were sleeping on the same cot and when the Deceased was forcibly lifted, she threw her hands and legs by which Subhash (PW 3) got awoken and saw the accusedAppellant. It is not disputed that accusedAppellant was known to him from before and he would have been identified by him. Calendar shows that moon lighted at about 22:40 hours on 22.6.1981. Therefore, there must be moon light in which accusedAppellant identified by him with certainty in the early morning.
(iii) Moon was the Source of Light.
There was moon light at the time of incident. The Calendar shows that moon lighted at about 10.40 p.m. on 22.6.1981. Therefore, there must have been moonlight in which Ram Bharosa could have been identified by the witness in all possibility.
(iv) Presumption OF Murder
There is no evidence in this case regarding actual murder. However, it is proved by the prosecution that Deceased Smt. Surja was murdered immediately after she was kidnapped by the accusedAppellant with the help of other culprits and after the said abduction she was never seen alive. Allegedly she was kidnapped in the early hour of 23.6.1981 and her dead body was recovered from river on 24.6.1981 at about 10.30 a.m.. The postmortem of her dead body took place on 25.6.1981 and according to the opinion of Dr KP Verma (PW 1) she was murdered more than two days before. It is, therefore, certain that the Deceased was murdered immediately after she was lifted by the accusedAppellant. There has been no time gap between the incident and when the accusedAppellant was last seen alive with the Deceased being forcibly lifted by him from the cot. If it is so, the burden of proof lay upon the accusedAppellant to show under what circumstances, she was done to death and thereupon prove his innocence. Therefore, there is strong presumption against accusedAppellant that he along with two others committed murder of the Deceased Smt. Surja.
We have cogitated over rival submissions and in that light have perused the entire record and our findings and conclusions are as follows:
On summation of evidence critically on contentious issue, we find that the fact witness Subhash (PW 3) the grandson of the Deceased who is a natural and competent child witness, has fully supported the prosecution version;
All the formal witnesses have given supporting evidence;
Time, place and date of the incident were not disputed by the defence and, therefore, those facts are proved beyond any pale of doubt;
The accused Appellant has not been able to prove any such enmity with the Informant/witness and has failed to bring on record any material evidence which is indicative of the fact that he had any reason to implicate him in the instant heinous crime;
The prosecution has been able to prove and establish the truthfulness and correctness of the facts and make out guilt of the accusedAppellant to the hilt and bring home charge against him beyond shadow of reasonable doubt.
On an over all consideration, the intrinsic merit of the evidence in the instant case, is clearly indicative of the guilt of the accusedAppellant.
The appeal lacks merit. It is accordingly dismissed. The Appellant, Ram Bharosa, who is in jail, shall serve out remaining part of sentence awarded to him.
ORDER
It is submitted by the counsel for the Appellant that the Appellant is above 80 years of age and is in jail for last 15 years. It is open to the State Government to consider his case for premature release. With these observations, the appeal is dismissed.