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Madhya Pradesh High Court · body

2003 DIGILAW 1184 (MP)

Kadudiya v. State of M. P.

2003-10-29

ASHOK KUMAR TIWARI, S.L.KOCHAR

body2003
Judgment ( 1. ) THE appellant has preferred Criminal Appeal No. 246/1997 through Jail and Criminal Appeal No. 226/1997 through private Counsel. Hence both the appeals taken up together. ( 2. ) THE appellant/prisoner Kadudiya, feeling dissatisfied by the judgment dated 18-1-1997 rendered in ST. No. 406/1995 passed by the learned Second Addl. Sessions Judge, Alirajpur, thereby convicting the appellant guilty of the offence under Section 302, IPC and sentencing him to R. I. for life and a fine of Rs. 1,000/-, in default of payment whereof to suffer S. I. for two months, has preferred these appeals. ( 3. ) BRIEFLY stated, the facts of the prosecution case were that on 12-6-1995 at 7. 00 p. m. complainant Lalu (P. W. 2) alongwith his colleagues Juwansingh, Sikander and Dhankiya (son of the deceased) were passing from behind the house of the appellant in a bullock-cart. The appellant asked as to why did they bring the wood from the jungle of Jhijhli and why they were taking the bullock-cart from behind his house, whereupon the complainant told that they have brought fuelwood. Thereafter, the appellant who was having bow and arrow in his possession, shot an arrow which hit on the parital region of the deceased, as a result of which he fell on the ground. Thereafter, the appellant shot two arrows, one of which hit on his stomach and the another near the neck of the deceased, resulting into his instantaneous death. ( 4. ) THE incident was reported at P. S. Sorwa by the son of the deceased. Police registered the offence under Section 302, IPC and started investigation. During investigation spot map was prepared, blood-stained and plain earth was seized, bamboo-stick and a blood stained stone were also seized. The appellant was arrested and a bow and four arrows were recovered from him. Dead body of Juwansingh was sent to the hospital for post-mortem examination. Dr. R. Mandal performed the autopsy on the dead body of the deceased and issued post-mortem report (Ex. P-5 ). Thereafter, the appellant was charge-sheeted. The appellant denied to have committed the offence and claimed trial. The Trial Court recorded the statements of the prosecution witnesses and after hearing both the parties, finding the appellant guilty of the alleged offence, convicted and sentenced him as indicated above. ( 5. P-5 ). Thereafter, the appellant was charge-sheeted. The appellant denied to have committed the offence and claimed trial. The Trial Court recorded the statements of the prosecution witnesses and after hearing both the parties, finding the appellant guilty of the alleged offence, convicted and sentenced him as indicated above. ( 5. ) WE have heard Shri Lokesh Bhatnagar, learned Counsel appearing for the appellant as Amicus Curias and Shri G. Desai, learned Dy. A. G. for the State and have carefully perused the entire record. ( 6. ) LOOKING to the post-mortem report (Ex. P-5) as also the statement of Dr. R. Mandal (P. W. 6), it is clear that the deceased died as a result of shock and syncope due to arrow shot injuries. It is thus, found fully proved that the deceased met a homicidal death. Otherwise also the defence has not challenged the homicidal death of the deceased. ( 7. ) THE learned Counsel lor appellant has challenged the conviction of the appellant based on testimony of child witness Dhankiya (P. W. 5), who is the son of the deceased and his evidence has not been corroborated by independent material particulars. Therefore, same should have not been relied upon by the Trial Court for convicting the appellant. The learned Counsel in support thereof placed reliance on the judgment passed by Supreme Court in case of Bhagwansingh and Ors. v. State of M. P. , 2003 (II) MPJR 23. ( 8. ) ON the other hand, the learned Dy. A. G. Shri Desai has submitted that the evidence of child witness Dhankiya (P. W. 5) is of sterling character and there is strong corroboration to his testimony by independent material particulars. According to him, it" the evidence of child witness stand on proper footing on test of law of appreciation of evidence, there is no reason to discard the same. The learned Counsel has placed reliance on the judgments passed by Supreme Court in cases of State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and Bodhraj alias Bodha and Ors. v. State of Jammu and Kashmir, (2002) 8 SCC 45 . ( 9. ) WE have perused the entire statement of Dhankiya (P. W. 5) who is the son of deceased Juwansingh. v. State of Jammu and Kashmir, (2002) 8 SCC 45 . ( 9. ) WE have perused the entire statement of Dhankiya (P. W. 5) who is the son of deceased Juwansingh. He has deposed that on the fateful day of incident he went to forest alongwith his father Juwansingh, prosecution witness Lalu (P. W. 2) for bringing wood. While returning from forest when they reached near Village Bamni Mahudi, appellant met them having bow and arrow in his hand. He hit stone on the head of deceased and thereafter also shot arrow twice. The same hit below the neck and on stomach. His father died on the spot. In cross-examination the leading question was put to him about recording of his statement by the police under Section 161 of the Cr. PC after 15 days. This question was disallowed by the Court on the ground that date of recording is already mentioned in the statement. This witness has also stated that he alongwith Lalu (P. W. 2), Kunwarsingh, Galia went to the police station for lodging the report. He has denied the suggestion of the defence about not witnessing the incident. In paragraph four of the cross-examination he has also deposed that on the Same day of incident he went to the police station and police asked him about the incident. On the date of incident, alongwith his father, Sikander (P. W. 1) was also present. The learned Counsel has criticised the testimony of this witness on the ground of delay in recording his statement by the investigating agency. But we find no substance in this argument because the case diary statement of this witness has not been exhibited in Court and no question was put to the Investigating Officer about delay in recording the statement. Defence can not seek advantage of delay in recording statement without affording an opportunity to the prosecution to explain the same. Supreme Court in case of Bodhraj v. State of Jammu and Kashmir (supra), relying on the judgment passed by Supreme Court in Ranbir v. State of Punjab, (1973) 2 SCC 444 , held that "the Investigating Officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in examination of the witnesses". In the present case no question was put to the Investigating Officer regarding delay in recording the statement. The statement of this witness has not been exhibited to form the part of accord of this case. Therefore, unexhibited statement of this witness recorded by the police under Section 161 of Cr. PC could not be looked into for any purpose. ( 10. ) PRESENCE of Dhankiya (P. W. 5) alongwith his father Juwansingh while returning back from the forest with loaded bullock-cart, is admitted by Sikander, (P. W. 1), Lallu (P. W. 2) and Kunwarsingh (P. W. 3 ). So there is no doubt on this facs that Dhankiya (P. W. 5) was present on the scene of occurrence with the deceased and other witnesses. Since other witnesses have not supported the prosecution case on the point of actual witnessing the incident would not weaken the reliability of the evidence of Dhankiya (P. W. 5 ). In his statement, no evidence is available to infer that he was tutored by the prosecution agency or any other interested person before entering into witness box. He stood firmly in cross-examination by defence. His testimony is again corroborated by medical evidence of Dr. R. Mandal (P. W. 6) who find two injuries by arrow shot on the person of deceased. ( 11. ) THE learned Counsel has also raised a question of presence of insufficient light on the scene of occurrence to identity the assailant but there is no substance in this argument. The incident had taken place in the month of June at 7. 00 p. m. In this month upto 7. 00 p. m. proper natural light is available and since the deceased appellant and the witnesses are all known to each other the question of mis-identification of assailant would not arise. ( 12. ) IN the FIR (Ex. P-2) lodged by Lalu (P. W. 2) the fact of presence of the present appellant and witness Dhankiya (P. W. 5) is mentioned and this witness Lalu (P. W. 2), though turned hostile but admitted the lodging of FIR (Ex. P-2 ). This also proves the presence of the witness Dhankiya (P. W. 5) with his father at the lime of incident. The other witnesses have turned hostile which docs not mean that the witness Dhankiya (P. W. 5) was not the eye-witness and could not be relied upon. P-2 ). This also proves the presence of the witness Dhankiya (P. W. 5) with his father at the lime of incident. The other witnesses have turned hostile which docs not mean that the witness Dhankiya (P. W. 5) was not the eye-witness and could not be relied upon. As discussed above, his presence is amply proved. He witnessed the incident and on test he stood firmly. Therefore, his statement can safely be relied upon for convicting the appellant. Supreme Court in case of State of Maharashtra v. Bharat Fakira Dhiwar (supra) has held that:- "merely because of witness is child his evidence is not always liable to be rejected. Where Trial Court found testimony of child witness to be reliable and such witness stood the test of searching cross-examination and even otherwise his evidence was supported by a number of other circumstances which had been proved by prosecution, held, High Court erred in disbelieving evidence of such witness. " ( 13. ) THE learned defence Counsel has placed reliance on the judgment of Supreme Court in case of Bhagwansingh (supra) regarding reliability of testimony of child witness but on fact this judgment will not help the appellant because the Supreme Court has discarded the testimony of child witness on several counts like though witness has given the name of the assailants but they were arrested after 12 days and no explanation was given by the prosecution for delay, the witness met immediately after the incident to his maternal uncle and he must have narrated the story to him but uncle has not been examined. Father has also not stated that child disclosed the names of the assailants and that no test identification parade was held for establishing the identity of the assailants. The Supreme Court has also held that demeanour of the child witness as recorded by the Trial Court shows that he was tutored. Therefore, his testimony was not relied upon by the Trial Court. But such are not the facts available in the present case. In the case of Bhagwansingh (supra), the learned Trial Court passed the judgment of acquittal which was reversed by the High Court and the Supreme Court on close scrutiny found correct the judgment of acquittal passed by the Trial Court not relying on the testimony of child witness. ( 14. In the case of Bhagwansingh (supra), the learned Trial Court passed the judgment of acquittal which was reversed by the High Court and the Supreme Court on close scrutiny found correct the judgment of acquittal passed by the Trial Court not relying on the testimony of child witness. ( 14. ) IN the case in hand appellant has been convicted on the testimony of child witness Dhankiya (P. W. 5) in whose statement no glaring infirmities were observed by the Trial Court and on close scrutiny we have also not found any such defects which may render his testimony unreliable. On the contrary his presence on the spot and witnessing the incident is amply proved as discussed above. Therefore, we found absolutely no substance in the appeals filed by the appellants. ( 15. ) IN the result, the appeals filed by the appellant stand dismissed. ( 16. ) ORIGINAL judgment he retained in Criminal Appeal No. 246/1997 and a copy thereof be placed in Criminal Appeal No. 226/1997.