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1954 DIGILAW 146 (KER)

Mariasoosa v. State

1954-08-27

GOVINDA PILLAI, T.K.JOSEPH

body1954
Judgment :- 1. The appellant was the first accused in Sessions Case No.1 of 1954 of the Nagercoil Sessions Court. He was tried for an offence under S.302 of the Indian Penal Code, convicted under Part II of S. 304 and sentenced to undergo rigorous imprisonment for seven years. The case against him was that he caused the death of one Yesu Mariam by beating him on the head with a spade, M.O. No. 5. The motive for the act was alleged to be a quarrel between the deceased and the mother of the 1st accused on the previous day i.e. 27.10.1951. It was alleged that the 1st accused accompanied by his uncle the 2nd accused went seeking the deceased who was grazing cattle on the bund of a tank known as kurinchikulam with the idea of murdering him and that the deceased was murdered at about 10 A.M. on 28.10.1951. The 2nd accused who was charged with abetment of the offence of murder, as well as causing hurt to the deceased by beating him with his hand was acquitted. 2. Though a number of witnesses were cited to prove the act attributed to the 1st accused, the learned judge discarded the whole evidence tendered by the prosecution except that of Pw. 4, a boy aged twelve at the time of his examination. The confession given by the 1st accused was not acted upon as the judge came to the conclusion that it was not a voluntary statement. The evidence regarding recovery of the weapon was also discarded and it was held that it was not proved that death was caused by M.O. No. 5. The alleged motive for the act was also not believed. The conviction thus rests on the sole testimony of Pw. 4. 3. Shri. M.N. Parameswaran Pillai, the learned counsel for the appellant, did not dispute the fact that Yesu Mariam died and that death was due to the injuries noted in the post-mortem certificate, Ext. C. He contended that the guilt of the accused was not proved beyond doubt. Various circumstances were relied on by him to show that the evidence relied on by the learned judge was not acceptable. The chief point pressed was that a conviction could not be based on the evidence given by Pw. 4. As stated earlier, Pw. 4 was a boy who was twelve years old. Various circumstances were relied on by him to show that the evidence relied on by the learned judge was not acceptable. The chief point pressed was that a conviction could not be based on the evidence given by Pw. 4. As stated earlier, Pw. 4 was a boy who was twelve years old. He is the grand-son of a brother of the deceased. The records of the case do not show whether the judge conducted a preliminary examination to ascertain the competency of this witness to depose in the case. Except for the statements in the judgment that he impressed the learned judge as speaking the truth and that the answers given by him in cross-examination indicated that he had not been tutored to give evidence, there is nothing to show that the judge was satisfied that the boy understood the duty of speaking the truth. We had occasion to express our views in the judgment in Criminal Appeal No. 8 of 1954 (1) 1954 K.L.T. 638, on the question of the weight to be given to the evidence of child witnesses and we do not therefore consider it necessary to deal with the question in detail. This question has been considered by the Supreme Court in Rameswar Kalvan Singh v. The State of Rajastan (A.I.R. 1952 S.C. 54). Bose, J. observed: "I would add however that it is desirable that judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether." 4. The omission to question such a witness before he is examined or the failure to record the opinion of the judge as to whether the witness understood the duty of speaking the truth may not by itself vitiate the judgment. The credibility of the witness has to be judged in the light of the circumstances in each case. 5. The first information report, Ext. A which was given at 1.30 P.M. on 28.10.1951 by P.W. 1, a brother of the deceased, implicated the 1st accused Marianthony and another person Inasi Muthu. P.W.1 was not an eye-witness to the occurrence. The police sent a report Ext. 5. The first information report, Ext. A which was given at 1.30 P.M. on 28.10.1951 by P.W. 1, a brother of the deceased, implicated the 1st accused Marianthony and another person Inasi Muthu. P.W.1 was not an eye-witness to the occurrence. The police sent a report Ext. N to the Magistrate on 29.10.1951 that the 2nd and 3rd persons named in the first information report were not guilty and that the 2nd accused who was acquitted by the learned judge was guilty under S. 302 read with S. 114 and also under S. 323. There was absolutely no evidence in the case to connect the 2nd accused with the act which caused the death of the deceased and he was acquitted by the learned Judge. Pw. 4, though he was living in another part of the building occupied by the deceased and his family did not mention the fact that he witnessed the occurrence, either to Pw.1 or to other members of the family of the deceased. It appears that the Inspector of Police questioned him only on the 29th. That there was time for tutoring the witness cannot be disputed. Being a close relative of the deceased, it is surprising that he did not immediately communicate to others what he is alleged to have witnessed. The names of the persons mentioned in the first information report were given by Pw.1 on information alleged to have been furnished by Pw. 3. It has been found by the learned judge that Pw. 3 did not actually see the occurrence as she left the place during the stage of the quarrel which is said to have preceded the act. According to the statement given by Pw. 4 in the court below, about 50 persons gathered there at the time of the quarrel. This is thus a case in which other witnesses could have been cited and examined by the prosecution. In the nature of this case we feel that it would be unsafe to enter a conviction on the sole testimony of Pw. 4, as the prosecution evidence have been disbelieved by the learned judge in respect of several material points. This is thus a case in which other witnesses could have been cited and examined by the prosecution. In the nature of this case we feel that it would be unsafe to enter a conviction on the sole testimony of Pw. 4, as the prosecution evidence have been disbelieved by the learned judge in respect of several material points. The finding that an involuntary confession was obtained from the accused in order to make up the deficiency of direct evidence, the finding regarding recovery of M.O. No. 5 and the absence of evidence regarding the previous day's quarrel which furnished the alleged motive cast a certain amount of doubt on the truth of the prosecution case relating to the appellant. In these circumstances, we are unable to hold that the guilt of the accused has been proved beyond doubt. The appeal has therefore to be allowed, giving the appellant the benefit of doubt. 6. We therefore set aside the conviction and sentence, acquit the accused and allow the appeal. The bail bonds will stand cancelled. Acquitted.