Shri Gopal Chettri vs State of Sikkim

S.P. Wangdi, ACJ

This appeal is directed against the Judgment dated 31.07.2010 in S.T. Case No. 16 of 2010 passed by the learned Sessions Judge, Special Division-I, Sikkim at Gangtok (hereinafter referred to as ''the impugned Judgment'') by which the appellant stands convicted u/s 304 Part II IPC.

The prosecution case is that on 15.03.2004 at 1100 hrs one Pintso Sherpa of Theng Busty (North) lodged a FIR stating that in the night of 14.03.2004 one Suklall Tamang of 86 RCC, GREF Labor Camp, was physically assaulted on the head with a sharp weapon by Gopal Chettri and Ramesh Chettri of the same labor camp at Theng Busty (North) and was evacuated to Chungthang Hospital for treatment. This led to the Chungthang Police Station case No. 1 (3)04 dated 15.03.2004 under Sections 326/34 IPC being registered against Gopal Chettri and Ramesh Chettri. Suklall Tamang later died at Mangan Hospital due to the injuries resulting in the case being converted to 302/34 IPC and investigation taken up.

The investigation revealed that in a marriage party held at Theng on 14.03.2004, all the inhabitants of Theng Busty including the deceased Suklall Tamang, accused Kharka Nanda Chettri and appellant Gopal Chettri were invited. The deceased Suklall Tamang and his family left the party around 2100 hrs, a little earlier than the accused Kharka Nanda Chettri, but due to darkness and drunkenness, the deceased Suklall Tamang was unable to walk steadily. His wife went ahead leaving him behind, being escorted by his son, Santosh Tamang, 8 years and daughter, Sumita Tamang, 13 years. In the meanwhile, accused Kharka Nanda Chettri also left the party for his residence by the same path and on the way he met the deceased Suklall Tamang. After some exchange of words with the deceased the accused Kharka Nanda Chettri proceeded ahead of him. Later, when the deceased Suklall Tamang reached near the house of the accused Kharka Nanda Chettri, he murmured some words and moved on slowly towards his own house situated nearby. When he had moved to a distance of about 100 to 120 feet, the accused Kharka Nanda Chettri came from behind and hit the deceased Suklall Tamang with a ''Bamphok''. The appellant Gopal Chettri also had come out with his father and attacked the deceased. As a result of the assault, the deceased Suklall Tamang fell down on the road and was unable to stand and walk. The entire incident was witnessed by the son and the daughter of the deceased. The victim was evacuated to the Chungthang PHC with the help of ''Baidar'' mate Pintso Sherpa and later to Mangan Hospital, where he succumbed to his injuries on 15.03.2004.

Thus, a prima facie case under Sections 302/34 IPC having made out against the accused Kharka Nanda Chettri and the appellant Gopal Chettri, charge-sheet accordingly filed against them in Court. It is pertinent to note that the accused Kharka Nanda Chettri had been absconding and could not be apprehended even at the stage of the investigation and, therefore, change-sheet was filed against him as an absconder. The appellant denied the charges framed by the learned trial Court and claimed for being tried.

After the trial, the appellant Gopal Chettri was found guilty of the offence u/s 304 Part II IPC and accordingly convicted and sentenced.

Mr. N. Rai, learned Senior Advocate appearing on behalf of the appellant submits that the conviction against the appellant could not be sustained for several reasons. As per him, the evidence of the appellant having assaulted the deceased with an iron rod is a later improvement in the prosecution case as the FIR, Exhibit - 1, is silent on this and has come for the first time in the evidence of PW - 3 alone. None of the material witnesses including the other eye witness, PW-2, speak of this. That there are contradictions as regards the injuries noted in the inquest report, Exhibit-3, and the report of the cause of death noted by the Medico Legal Expert, PW - 8, which states that the cause of death as "peritonitis following traumatic perforation of the intestine produced by blunt injury to the abdomen". That in any case, as per the Medical Officer of Chungthang PHC, PW-11, the deceased developed abdomen complication only in the hospital and had not detected such problem when he first examined him and, therefore, leading to a reasonable inference that the abdomen problem from which the deceased was suffering had no relation to the injury sustained by him in the alleged assault.

The next contention raised on behalf of the appellant is that PWs 2 and 3, Sunita Tamang and Santosh Tamang, are child witnesses, who at the time of examination in Court, were 13 and 11 years of age respectively, which meant that at the time of the incident they were only 11 and 8 years respectively, and therefore, their evidence have to be viewed with a great deal of care and circumspection. As per Mr. Rai, there is an apparent conflict between the evidence of PW-2 and PW-3, in as much as PW-2 states in his examination-in-chief that when the accused Kharka Nanda Chettri assaulted the deceased with a ''Bamphok'' the appellant was only standing next to him. While, PW - 3 has improved this version in further stating that the appellant also had come from behind the deceased carrying a rod with which he assaulted the deceased who was lying down on the road and also kicked him all over his body. It may be relevant to note that this portion of the statement was taken down under objection on behalf of the appellant. It is further submitted that the absence of the appellant at the scene of offence stands established from the evidence of PW-1, the complainant, who very categorically stated that when he went to the house of the accused Kharka Nanda Chettri on hearing of the incident, the appellant was sleeping. As per the learned counsel, this has been corroborated by PW-6, Kumari Chettri, wife of the accused Kharka Nanda Chettri, who stated in her cross-examination that "when I came from the marriage party my son Gopal Chettri was sleeping with my three minor children", and also by PW-10, Prem Gurung, who stated that "It is true that when I went to the house of Kharanand his son Gopal was in deep sleep and I woke him up to take the victim to the hospital". The evidence of these witnesses, as per the learned counsel, establishes without any doubt that the appellant did not have any role to play in the commission of offence and that the statement to the contrary appearing in the deposition of PWs - 2 and 3 are clearly later introduction as a result of tutoring.

It is next contented that the finding in paragraph 23 of the impugned judgment as regards the kicks and blows and the assault on the deceased with a rod in the abdomen by the appellant are in clear deviation to the charge and is violative of Section 216 Cr. P.C.

Apart from the above, Mr. Rai has also pointed out other deficiencies in the investigation and trial which, as per him, are serious and are such as to vitiate the entire case of the prosecution. It is submitted that in the first instance, the weapon of offence i.e., the iron rod, was not at all produced in Court and exhibited. Secondly, the weapon of offence, ''Bamphok'', controlled blood samples and the iron rod were not sent for the opinion of the CFSL.

On the reliability and scope of appreciation of child witness, Mr. Rai cited the cases of (i) Bhagwan Singh and Others Vs. State of M.P., (ii) Chhagan Dame vs. State of Gujarat: 1994 Cr. L.J. 556 and (iii) Orsu Venkat Rao Vs. State of Andhra Pradesh, . Since the principles laid down in all the three cases are same, it would be sufficient to reproduce the relevant portion in the case of Bhagwan Singh and others vs. State of M.P. (supra), which is as under:

The law recognizes the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony. See Panchhi and others Vs. State of UP, .

20....

We find some force in the submissions made by the learned counsel appearing for the State of Madhya Pradesh that looking to the age of child and his two younger brothers, it was most likely that they were with the mother and sleeping with her when she had gone to stay with her deceased father Mata Prasad. But the other possibility of the children being fast asleep when the elders of the house were attacked and killed cannot be ruled out - as the incident is alleged to have happened in the midnight. Mere presence of the children in the house at the time of the incident is no assurance to the case of the prosecution that the eldest child got up on hearing hue and cries and had not only seen the incident but also identified the accused. Taking into consideration the child psychology a lad of six years having seen his mother being assaulted would have raised a cry; but he says that he quietly went back to sleep. It is also most unnatural even for a child that after witnessing his mother being assaulted by known persons he would go back to sleep to wake up late in the morning only when his maternal uncle Agyaram came to fetch him and his younger brothers to his father''s village Alampur.

It is hazardous to rely on the sole testimony of the child witness as it is not available immediately after the occurrence of the incident and before there were any possibility of coaching and tutoring him. See Paras 14-15 of State of Assam Vs. Mafizuddin Ahmed, . In that case evidence of child witness is appreciated and held unreliable thus :

The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment :

..... the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring.

A bare perusal of the deposition of PW-7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his Nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of his witness who was only a lad of 7 years. But from the tenor of his deposition it is evidence that he was not a free agent and has been tutored at all stages by someone or the other.

(Emphasis supplied)

That the failure on the part of the prosecution to send the weapon of offence, the controlled blood samples and the iron rod for CFSL examination renders the prosecution case extremely doubtful because even assuming that those articles/weapons were seized, no nexus can be drawn between those and the appellant as there is an unavoidable responsibility upon the prosecution to prove that those were the very weapons used to assault the deceased. The following passage in the case of Varun Chaudhary Vs. State of Rajasthan, was cited in support of this contention by Mr. Rai: -

It is pertinent to note that there is no evidence or even there is no reference to the fact that any one from Forensic Science Laboratory or from the police personnel had lifted marks of the motor cycle tyre from the place of the offence so that the same can be compared with the tyre marks of the motor cycle alleged to have been used in the offence. Unless tyre marks are lifted from the place of the offence and upon comparison with the tyre marks of the motor cycle recovered are found to be the same, it cannot be said that the motor cycle recovered was used in the offence. So as to establish the presence of the motor cycle at the place of the offence, the prosecution must show that the tyre marks which were found at the place of the offence were that of the motor cycle used by the accused. It is also pertinent to note that marks of the motor cycle tyre which were received by the FSL were not in a sealed condition. Aforestated facts clearly denote that the marks of the motor cycle tyre could not have been relied upon either by the Trial Court or by the High Court for establishing that the motor cycle having particular tyre marks was used in the alleged offence.

On the submission of non-production of the weapon of offence, i.e., the purported iron rod said to have been used by the appellant, Mr. Rai places reliance on the following portion of the decision on Varun Chaudhary vs. State of Rajasthan (supra):

21....Moreover, the knife was never produced before the court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the courts below for passing the order of conviction.

To buttress the above proposition, the learned counsel referred to the case of Kuldip Yadav and Others Vs. State of Bihar, , more particularly, the following:

32....

k) The weapons alleged to be used in the offence were not seized and no effort was made to recover them. Hence, there is nothing on record to link the accused persons to the crime.

l) The blood stained clothes, blood stained earth of the place of occurrence was not sent to forensic laboratory for chemical examination.

The other points raised by Mr. Rai may not be dealt with, being inconsequential.

Mr. Karma Thinlay Namgyal, learned Additional Public Prosecutor submits that the case is based upon the eye witness''s account. PW-2 and PW-3, the daughter and son of the deceased, had witnessed the entire incidence and have accordingly deposed in Court and in their evidence they have clearly established the involvement of the appellant in the assault on the deceased. As per him, there was no reason to doubt their evidence. The evidence of PW-1, PW-6 and PW-10 that the appellant was sleeping when they went to call him after the incident, does not displace the established fact that the appellant and his father Kharka Nanda Chettri were approached by PWs 4 and 5, wife and son-in-law of the deceased, after they had received the information from PW - 3. Therefore, PWs 4 and 5 approached the absconding accused Kharka Nanda Chettri and appellant subsequent to the incident, which explains the reasons why the appellant was found sleeping. That this fact stands confirmed by the statement of PW - 2 Sunita Tamang, daughter of the deceased when she deposed that "... The accused and his father rushed back to their house and hid themselves there. By then my deceased father had already fallen on the ground...."

As per the learned Additional Public Prosecutor, apart from the above, there are other evidence from which a firm and reasonable conclusion can be drawn that the appellant has also participated in the incident, the most damning of them being the evidence of PWs 3, 5 and 8, when read together. The learned Additional Public Prosecutor submits that it has come in the evidence of PW-3 that "... Thereafter, the accused standing on the dock also came from behind carrying a rod in his hand with which he assaulted my deceased father who was then lying down on the road. The accused also assaulted my deceased father all over his body with kicks (objected to)...", in the evidence of PW-5 it is stated that "... The victim Suk Lal Tamang was conscious and talking at the time when we took him to Chungthang Hospital. It is true that when we took him to Chungthang Hospital Suk Lal Tamang, father-in-law, told us that one Gopal Chettri and accused Kharga Nanda inflicted injury on his head and on abdomen and he is felling severe paid due to the injury he got in his abdomen...." and as per the doctor, PW-8 "the cause of death was peritonitis following traumatic perforation of the intestine produced by blunt injury to the abdomen." That on an analysis of this evidence there can be no doubt of the appellant having committed the offence.

Then referring to the statement of appellant Gopal Chettri u/s 313 Cr. P.C., with particular reference to the answers given to questions No. 13, 15, 17, 18, 20, 23 and 24, it was submitted that the appellant was not speaking the truth and is to be considered as a circumstance appearing against the appellant. That apart, silence of the appellant when PW-1 asked him and his father as to why they had assaulted the deceased, and instead helping and evacuating the injured Suklall Tamang, the deceased, as per the learned counsel, is one more circumstance that adds to the chain of circumstances appearing against the appellant.

On the sanctity of the evidence of child witnesses, the learned Additional Public Prosecutor sought reliance on the case of Suryanarayana Vs. State of Karnataka, and submitted that the evidence of the child witness cannot be rejected per se and corroboration of such witness is not a rule but a measure of caution and prudence and that some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. As regards the non-production of weapon of offence, more particularly, the iron rod, it was submitted that when the evidence is so clear with the medical evidence fully corroborating the narration of assault by the witnesses, non-production of weapon becomes immaterial. Reliance is placed in this regard in the case of Sakhram v. State of Maharashtra, 1969 (3) SCC 730 .

I have given anxious consideration to the rival submissions made on behalf of the parties and the evidence and materials appearing in the records. The question is whether the prosecution has been able to prove the guilt of the appellant beyond any reasonable doubt. For this purpose, the most vital witnesses upon whom the prosecution heavily relies upon are PW-2 and PW-3, the child witnesses, who are said to have witnessed the incident. The relevant portions of the evidence of PW - 2 are as under: -

PW 2 Sunita Tamang

... It must have been between 7 to 8 pm when we returned from the said marriage party. As it had become dark by then my deceased father was complaining on the way that even the path was not visible due to darkness. Thereafter I heard the father of the accused who was inside his nearby house at that time said ''Take this firewood if the path is not visible.'' from inside his house throwing firewood which was then burning at my father. I could recognize the voice as that being of the father of the accused from the roadside where we were walking as I was quite acquainted with his voice. At that my deceased father told the father of the accused as to why he had thrown the firewood at him and that if he had wanted to provide me some light to lighten the path he could have very well come out of the house and handed over the firewood to him properly. Hearing this father of the accused said tauntingly that he would definitely come and give him the firewood. Saying this accused and his father came out of their house and approached where my deceased father was walking. The father of the accused was carrying a bamphok in his hand. Thereafter the father of the accused assaulted my deceased father with the bamphok on the back of his head and on the forehead. At that time the accused was also standing next to his father. When my deceased father received the injuries inflicted by the bamphok he cried in pain saying he was cut with a bamphok. On hearing that I approached my deceased father. At that time I noticed that the father of the accused was putting back the bamphok that he had used to assault my deceased father in its sheath that he was then carrying. The accused and his father rushed back to their house and hid themselves there.....

Cross-examined by the accused through ld. Counsel Shri D.R. Thapa

... Since it was very dark so it was not possible to see any person around. It is further true that my father told me that since it was very dark he could not properly see the footpath.... It is true that when the incident occurred I was not with my father as I was around 200 feet far away. It is true that since I was little far away so I did not see the father of the accused hitting my deceased father with bamphok however I saw at that moment father of the accused placing the bamphok M.O. I in the sheath.... It is true that since it was a pitch dark I did not see the incident with my eyes....

PW 3 Santosh Tamang

... When we were returning back to our house from the said marriage at about 7 P.M. When we reached the stair case near the house of the accused, the father of the accused suddenly threw a burning fire wood at us which came and landed on the stair case right in front of us. As we were proceeding towards our house I saw the father of the accused assaulting my deceased father with a Bamphok which he was then carrying. As a result of such assault my deceased father received injuries on the back and front portion of his head. By that time we had reached the road and my deceased father fell down on the road due to the assault. Thereafter, the accused standing on the dock also came from behind carrying a rod in his hand with which he assaulted my deceased father who was then lying down on the road. The accused also assaulted my deceased father all over his body with kicks (objected to).

Cross-examined by the accused through ld. Counsel Shri D.R. Thapa.

... It is true that I did not see the accused standing in the dock using Bamphok to assault my father.... It is true that in my 161 statement I have not stated that my father was assaulted by the accused with iron rod....

(Underlining''s mine)

As it can see, there are glaring contradictions in the statements of the witnesses. As per PW - 2, the father of the accused assaulted the deceased with the ''bamphok'' on the back of his head and the forehead, during which time the accused was also standing next to his father. In his cross-examination, it is stated that it was very dark and not possible to see any person and that she was about 200 feet away and could not see the father of the accused hitting the deceased with the ''bamphok''. PW-3, on the other hand states that he saw the father of the appellant assaulting the deceased with a ''Bamphok'' and as he fell down, the accused also came behind carrying a rod in his hand with which he assaulted the deceased, who was lying on the road and also kicked the deceased all over his body. These facts admittedly had not been stated by him to police when his statement u/s 161 Cr. P.C. was being recorded by the police. Having found the evidence of PW-2 and PW-3 not convincing, I have searched for necessary corroboration following the ratio laid down in the cases of Bhagwan Singh and Others (Supra) and Surya Narayana (Supra) and, the result has been disappointing as will be revealed from what follows hereafter.

There are contradictions also in the evidence of PW-5. In his examination-in-chief, he states that the deceased was conscious when he was being taken to the hospital at Chungthang and had told "that the appellant and the accused Kharka Nanda Chettri inflicted injuries on his head and on the abdomen and he is feeling severe pain due to the injury in his abdomen", but in his cross-examination, he has categorically stated that "It is true that while going to Chungthang Hospital my father-in-law did not say anything about the incident. He simply complained about the pain." The evidence of PWs 1, 5 and 10 that the appellant was asleep when they went to his house just after the incident has also remained uncontroverted.

These glaring contradictions in the evidence raise a serious doubt as to the correctness of the evidence of the child witnesses PW-2 and PW-3. There are obvious embellishments made to their statements. It is for the first time after a period of 3 years of the incident that they have spoken in Court about the presence of the appellant at the time of incident. Moreover, the appellant carrying an iron road and assaulting the deceased with it is also an additional fact which has been stated. This apart, the fact that the evidence of these witnesses were taken more than three years after the incident, give rise to a reasonable inference of the child witnesses having been tutored and the fact that the iron rod was never produced in Court is an additional factor that adds to the serious doubt.

Under such circumstances, it cannot be said that the case has been proved beyond any reasonable doubt that the appellant has committed the offence. The evidence is rather found riddled with contradictions that raise reasonable doubts as to his participation in the assault.

Under such circumstance, I am of the view that the appellant deserves to be given the benefit of doubt and be acquitted of the charges.

In the result, the appeal is allowed, the conviction and sentence passed by the learned trial Court is set aside and the appellant is acquitted of the charges.

Let a copy of this judgment be transmitted to the learned trial Court for compliance.

The records of the Court below are returned forthwith.