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2008 DIGILAW 463 (MP)

Tulsi v. State Of M. P.

2008-03-25

ARUN MISHRA, S.S.DWIVEDI

body2008
JUDGMENT : ARUN MISHRA, J. The appeal has been preferred by the appellants feeling aggrieved by their conviction and sentence for commission of offence under section 148, Indian Penal Code RI for three years and 302 and 302/149 of Indian Penal Code RI for life whereby, committing the murder of one Uttam on 15-9-1991. 2. Briefly, the prosecution case is that on 15-9-1991 at about 9.40 PM First information report was lodged by Jalam (PW1) who was accompanied by Uddet, Antu, Chhotelal, Bahori and Bhagoni. It was mentioned in the report that prior to 5-6 days of the incident, Uttam asked wife of Sitaram on the way to sent her husband Sitaram to him. It was objected to by the family members of Sitaram. The quarrel took place between Tulsi, Chhattu, Sitaram and Uttam but ultimately, the matter was settled on that day. Thereafter, on the date of incident when Uttam went to answer the call of nature, he was beaten upon by five accused persons namely Tulsi, Chhattu, Chhimma and Sitaram and beaten with the aid of lathi, axe and splinter. At that time, Jalam was in the field, hence, Sarman (PW10) informed him about the incident and thereafter, he reached on the spot where Uttam was found dead in the pool of blood. The incident was witnessed by his son Hariram and nephew Murat. Name of one Shibbu was also mentioned to be present on the spot. Investigation was set up. Inquest of the dead body was prepared. Spot map was also drawn by the In-charge of Police Station, Sanodha. The body was sent for autopsy. Blood stained chapples of the deceased were seized from the spot. At the instance of accused persons, weapons of offence were seized. They were arrested. The seized articles were sent to Forensic Science Laboratory. The accused were charged for commission of offence under sections 148 and 302, 302/149 of Indian Penal Code. 3. The accused abjured their guilt and contended that they have been falsely implicated in the case and they are innocent. 4. The prosecution has examined two eye witnesses i.e. Hariram (PW3) and Murat (Pw6). Complainant Jalam Singh was examined as (PW 1). In all, the prosecution examined 18 witnesses. Two witnesses have been examined in defence i.e. Devi Singh (DW1) and Karan Singh (DW2). 4. The prosecution has examined two eye witnesses i.e. Hariram (PW3) and Murat (Pw6). Complainant Jalam Singh was examined as (PW 1). In all, the prosecution examined 18 witnesses. Two witnesses have been examined in defence i.e. Devi Singh (DW1) and Karan Singh (DW2). The appellants have been convicted for commission of murder of Uttam and sentenced in the aforesaid manner and being dissatisfied thereof, they have come in appeal. 5. Shri S. C. Datt, learned Sr. counsel appearing with Shri Siddharth Datt Advocate submitted that it is not apparent from the statement of Jalam Singh (PW1) that how he mentioned the names of accused persons in the FIR. The names of accused were not informed by Hariram (PW3) and Murat (PW6) to Jalam (PW1) and in case, they were eye witnesses of the incident, then they should have disclosed the names of accused persons. Besides, Hariram (PW3) and Murat (PW6) are child witnesses, therefore, their testimony requires corroboration. It would not be safe to act upon it in the absence of corroboration. Karan Singh (DW2) has not supported their version. Mother and sister of the deceased who were informed by the aforesaid witnesses Hariram and Murat have not been examined. Consequently, an adverse inference deserves to be drawn for non-examination of the aforesaid witnesses. Their examination was necessary to unfold the real story. It is also apparent that Hariram and Murat were chance witnesses. As such, the Court has to make close scrutiny of their statements before accepting the same. The version given by the eye witnesses is not acceptable as they were tutored. The witnesses stated that they turned unconscious after making disclosure to the mother and sister. Thus, they did not inform Jalam about the incident. The statement of Jalam (PW1) is incorrect. Apart from that, deposition of child witnesses does not inspire confidence. They would not have seen the entire incident once the beating was started and the accused persons would not have waited for arrival of these witnesses to start beating of deceased so as to create evidence against them. Thus, entire story set up by the prosecution is unworthy of reliance. It was 6 O'clock in the month of September when the incident took place therefore, it might be possible that if it was not complete dark but it must have been hazy. Thus, entire story set up by the prosecution is unworthy of reliance. It was 6 O'clock in the month of September when the incident took place therefore, it might be possible that if it was not complete dark but it must have been hazy. In para 1 of the statement of Hariram (PW3), it is stated that one of the accused Shiv told him that they were beating his brother, is also not reliable version in the ordinary course of human conduct. Shri Datt Sr. counsel has also submitted that Hariram (PW3) and Murat (PW6) were not made witnesses to the spot map prepared by Patwari. Thus, it is apparent that they were not eye witnesses by the time spot map Ex.P14 was prepared. He has also relied upon the decisions to be referred later. 6. Shri T. K. Modh, learned Dy. Advocate General appearing on behalf of the State has supported the prosecution case. He submitted that the statement of child witnesses Hariram (PW3) and Murat (PW6) have been medically corroborated by the statement of Dr. S. C. Singhai who has stated that as many as 25 injuries were found on the person of deceased. Thus, the ocular version finds medical corroboration. It is the quality and reliability of the statement of child witnesses which is material. The corroboration cannot be said as a rule of thumb in every case. Thus, description given by Hariram (PW3) and Murat (PW6) of the incident indicates that they have witnessed the incident and they have not been planted as eye witnesses and subsequently, their names have been mentioned in the FIR. One of the eye witness namely Shibbu Dhanuk died after 15 days of the incident, therefore, he could not be examined by the prosecution. The evidence of chance witness can also not be rejected if it is reliable. No adverse inference can be drawn for non-examination of mother and sister as they are not eye witnesses. Karan was won over by the accused and has been examined as DW2. He has also stated about presence of Shibbu Dhanuk on the spot. Devi Singh (DW1) has also stated about presence of Shibbu Dhanuk. Shibbu Dhanuk was accompanied by Hariram and Murat. Shri Modh has further submitted that in spot map Ex.P/14 prepared by Patwari, Hariram and Murat were shown as witnesses so also in the spot map prepared by the police. 7. Devi Singh (DW1) has also stated about presence of Shibbu Dhanuk. Shibbu Dhanuk was accompanied by Hariram and Murat. Shri Modh has further submitted that in spot map Ex.P/14 prepared by Patwari, Hariram and Murat were shown as witnesses so also in the spot map prepared by the police. 7. In the instant case, the prosecution rests mainly on the deposition of child witnesses Hariram (PW3) aged about 14 years and Murat (PW6) aged about 15 years both students of class 8th. They are related to the deceased. Before we appreciate evidentiary value of their deposition, we deem it appropriate to refer to the decisions cited at bar in this regard. 8. In Abbas Ali Shah vs. Emperor, reported in AIR 1933 Lahore 667 it has been observed that Children are a most untrustworthy class of witnesses, for, when of a tender age they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others, and are greatly influenced by fear of punishment; by hope of reward, and by desire of notoriety. When considering the evidence of child witnesses, these observations should not be lost sight of, although each case would depend upon its particular facts and circumstances. Similar observation has been made in Arun Lal Isreal vs. State, AIR 1955 TC 6 . 9. In B. Bhikha vs. State of Gujarat, reported in AIR 1971 SC 1064 it is observed that even if there is no infirmities in the evidence of a young boy, it is desirable to seek corroboration of his evidence in view of his tender age considering the facts of the case. In State of U. P. vs. Ashok Dixit and another, reported in AIR 2000 SC 1066 it has been observed with respect to a child witness nine and half years old, occurrence took place on 8-8-1982 but her statement under section 161, Criminal Procedure Code was recorded on 10-8-1982 though after the occurrence, she was residing with her uncle which was at a stone's throw from the house of Dr. Dubey. In the aforesaid circumstance, statement of child witness was rejected and acquittal of the accused was upheld. Dubey. In the aforesaid circumstance, statement of child witness was rejected and acquittal of the accused was upheld. In Chhagan Dame vs. The State of Gujarat, reported in AIR 1994 SC 454 evidence of child witness was considered by the Apex Court and on appreciation of the deposition, the Apex Court came to the conclusion that he went to the scene of occurrence only after the accused ran away, hence, he could not see appellants inflicting injuries to the deceased. In these circumstances, the statement of child witness was rejected and conviction and sentence awarded to the appellant was set-aside. 10. Shri Modh, Dy. Advocate General has relied upon the decision of the Apex Court in Dhanraj vs. State of Maharashtra, reported in AIR 2002 SC 3302 , wherein, the Apex Court has observed about the competency of the child witness studying in class 8th standard. The Apex Court has held that the students of class 8th these days acquires sufficient understanding to perceive the facts and to narrate the same. In the present case also, both child witnesses Hariram and Murat were students of Class 8th and aged about 14 and 15 years. Thus, the witnesses Hariram and Murat were having capacity to perceive as stated by the Apex Court in the aforesaid decision. In Ratansinh Dalsukhbhai Nayak vs. State of Gujarat, reported in (2004) 1 SCC 64 , the relevant factors to be taken into consideration while considering the capacity of a child witness have been laid down. The Apex Court has observed that section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction, based thereon. Reliance was placed on Suryanarayana vs. State of Karnataka, reported in (2001) 9 SCC 129 . The evidence of child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability, can record conviction, based thereon. Reliance was placed on Suryanarayana vs. State of Karnataka, reported in (2001) 9 SCC 129 . A child 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. He should have given reasonable answers to the questions put to him. For the aforesaid observation, the Apex Court referred to Dattu Ramrao Sakhare vs. State of Maharashtra, reported in (1997) 5 SCC 341 . The precaution has to be observed by the Court because the child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and likely to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. Therefore, the Apex Court considered the evidence of child witness who was an eye witness and found it credible in the facts and circumstances of the case. The Apex Court in Nivrutti Pandurang Kokate and ors. vs. State of M. P., reported in JT 2008(2) SC 556 has laid down that if a child has made specific and vivid statement without any embellishments, merely by the fact that the age of the witness was 12 years and murder was of her father by mother and others, it was held that the evidence was acceptable. The Apex Court has referred the decisions of Suryanarayan (supra) and Datta Ramrao Sakhare (supra). 11. Before we proceed to consider the evidentiary value of the child witnesses we deem it appropriate to place it on record that on 15-9-1991, as per Akhil Bharatvarshopayogi Panchang, sun set time was mentioned as 6.07 PM. It is apparent that at the time of incident, sun was not set and it was not dark or hazy when the incident took place. 12. It is apparent that at the time of incident, sun was not set and it was not dark or hazy when the incident took place. 12. Hariram (PW3) as well as Murat (PW6) are students of Class 8 and of the age of 14 and 15 respectively. It is apparent that they could understand the questions and perceive the fact and were competent to depose. Still their deposition requires close scrutiny. 13. Hariram (PW3) has stated that the deceased was son of elder brother of his father. He along with Murat (PW6) went to answer the call of nature. He saw Uttam, Tulsi and Shiv. When they were returning back, they saw that Tulsi asked Uttam to smoke the bidi but Uttam refused. Tulsi asked Uttam to sit down and on that, Uttam sat with Tulsi. Thereafter, Shiv started smoking bidi then Shiv inflicted injury with the help of sword on Uttam. Tulsi took out splinter and inflicted injury in the abdomen area of Uttam. On that, Uttam cried. Sitaram came from the side of Mahua tree and inflicted injury with the aid of farsa on the neck of deceased, Accused Chhattu caused Ballam injury on the deceased. Uttam asked Hariram and Murat to run away therefore, they ran away from the spot. Shibbu was also present on spot by the side of Mahua tree. He has also witnessed the incident. They reached the village crying that Uttam was done away with by the accused persons. Their names were also informed by witnesses to the mother of the deceased. Sarman went to inform Jalam (PW1). Sarman (PW10) and Kundan (PW5) and Jalam came together and went to the spot and thereafter, came back to the house. There is no doubt that in para 1 the witness has stated that Shiv has told them that they were beating his brother. On that basis, learned Sr. counsel has submitted that the accused would not have disclosed that they were beating Uttam to the witnesses. Merely by the aforesaid narration of disclosing the fact of beating to the witnesses nothing can be gained by the accused as there may be some slip in the narration, his deposition cannot be rejected and may that such words were uttered accused were in fact beating the deceased in open in presence of witnesses. Merely by the aforesaid narration of disclosing the fact of beating to the witnesses nothing can be gained by the accused as there may be some slip in the narration, his deposition cannot be rejected and may that such words were uttered accused were in fact beating the deceased in open in presence of witnesses. He has withstood in the cross-examination has given detailed description of incident in paras 4, 5 and 6. His deposition cannot be rejected on the basis that how many injuries he has attributed to a particular accused. As many as 25 injuries were found on the person of deceased. It is quite difficult to a witness to count number of injuries inflicted by one accused on the person of deceased, whereas, there were five accused persons in the instant case. The weapons with which, injuries were inflicted to the deceased as stated by Hariram (PW3) find medical corroboration from Autopsy report Ex.P/17 and deposition of Dr. S. C. Singhai (PW15). Thus, the statements of witnesses find medical corroboration with regard to the method and manner of the incident. Murat (PW6) had also supported and corroborated the statement of Hariram (PW3). He was also student of class 8th and has answered the questions put to him during cross-examination intelligently, therefore, it is apparent that he has perceived the incident and had capacity to narrate. The statement of child witnesses cannot be termed to be tutored or afterthought at all. Police statement of Hariram and Murat were recorded on 16-9-1991. Time was not gained by the prosecution. The incident occurred at about 6 PM and the First information report of the same was lodged by Jalam (PW1) at about 9.40 PM, in which names of Hariram and Murat were mentioned as witnesses. Police station being 6 KM away from the spot, therefore, statement of the witnesses were recorded promptly on the next very day when police came to the village. 14. Murat (PW6) has deposed with respect to the first incident also as to altercation which took place when deceased asked wife of Sitaram to sent her husband Sitaram to him which was objected to by the family members of accused Sitaram. He has further stated that on the date of incident, he along with Hariram had gone to answer the call of nature. He has further stated that on the date of incident, he along with Hariram had gone to answer the call of nature. When they finished the call of nature, they saw that Tulsi and Shiv were taking Uttam along with them. Shiv took out sword and inflicted injury on Uttam on his right side. Uttam started crying at that time, Chhattu, Chhimma and Sitaram came and Chhattu inflicted injury on the head of deceased with the aid of farsa, Tulsi inflicted injury to the deceased with the aid of splinter and Chhimma inflicted injury with the aid of Ballam. Uttam asked him to run away, otherwise, they will kill them also. Shibbu Dhanuk had also asked the witness to run away. Chhittu asked other accused to kill him also and on this call, Tulsi and Shiv also chased them but he along with other witness Hariram ran away from the spot and reached the house and narrated the incident to the mother. Thereafter, Sarman came to the house and he was sent to inform Jalam who was in the field. Accused have also pelted stone on the deceased. He has withstood the cross-examination. He narrated the incident in cross-examination in detail in paras 8, 9, 10, 11 and 12. He has rightly stated in para 12 that he was unable to count the injuries inflicted by the accused. It is quite difficult to count the number of injuries. It is clear that he perceived the incident and therefore, it cannot be said that his statement is unworthy of credence. He has stated facts which he could perceive and has rightly not given the details of the number of blows inflicted by accused persons and it is quite difficult to give such number of blows also. Thus, the statement of witness cannot be rejected on the aforesaid basis. The Apex Court in Kallu vs. State of M. P., reported in AIR 2006 SC 831 has observed that it is not necessary to each eye witness to name all who gave blow and exact nature of injuries caused. It cannot be a ground to disbelieve them. It is not necessary that all eye witnesses should specifically refer to distinct acts of each member. Discrepancy in this regard is not enough to reject the evidence. It cannot be a ground to disbelieve them. It is not necessary that all eye witnesses should specifically refer to distinct acts of each member. Discrepancy in this regard is not enough to reject the evidence. Thus, we find ourselves unable to reject the evidence of witness Hariram (PW3) and Murat (PW6) on the aforesaid counts. 15. It is also submitted by Shri Datt, Sr. Counsel for the appellants that the witnesses did not disclose the names of accused to Jalam (PW1). In the instant case, it is apparent that the names were narrated by the aforesaid witnesses to the mother and other family members of deceased who were present when they immediately came from the spot of incident. On that, woman of the house started crying and Sarman (PW10) was sent to summon Jalam (PW10). Thereafter, Jalam along with Kundan (PW5) reached on the spot and at that time, Shibbu Dhanuk was also present in the house and names of assailants were known to several persons. Hariram (PW3) and Murat (PW6) have stated that after narrating the incident to the mother of deceased, they became unconscious. If it is incorrect that they became unconscious, their deposition which are otherwise found to be credible with regard to the method and manner of the incident, cannot be rejected. Their names were mentioned in the FIR as eye witnesses of the incident along with Shibbu Dhanuk and Karan Singh. The statement of Shibbu Dhanuk was also recorded by the police under section 161, Criminal Procedure Code but he died within 15 days of the incident before preparation of spot map Ex.P/14 by Patwari. Karan Singh has been examined as (DW2) who has not supported the prosecution case but has stated that Shibbu Dhanuk was present when the incident took place. Eye witnesses Hariram (PW3) and Murat (PW6) have also stated presence of Shibbu Dhanuk on the spot. To that extent, their evidence is also corroborated by the defence evidence. However, Devi Singh (DW1) and Karan Singh (DW2) stated that Uttam Singh was done away with by some other assailants and not by the appellants. But their evidence is not at all reliable. They have suppressed the truth and apparently made wrong statement. 16. Shri Datt learned Sr. To that extent, their evidence is also corroborated by the defence evidence. However, Devi Singh (DW1) and Karan Singh (DW2) stated that Uttam Singh was done away with by some other assailants and not by the appellants. But their evidence is not at all reliable. They have suppressed the truth and apparently made wrong statement. 16. Shri Datt learned Sr. Advocate has also submitted that in case, Hariram (PW3) and Murat (PW6) were the eye witnesses, they ought to have been taken by Jalam to the police station to narrate the story. We find no force in the submission of learned counsel. When such an incident has taken place, they were not required to be taken to the police station and children are normally asked to remain in the house on such happening. It is also apparent that they were having fear and were in bad mental state. Obviously, they were not taken to the police station by Jalam who has promptly reached police station which is 6 Kms away from the spot and report was lodged by him without any delay. Investigation was set up and the statement of eye witnesses were recorded on the next very day i.e. on 16-9-1991. 17. Shri Datt, learned Sr. counsel for the appellants submitted that in Patwari map, Hariram (PW3) and Murat (PW6) were also not shown as eye witnesses. We have carefully seen that in the Patwari map Ex.P/14, there appears to be signature of Hariram and Murat. We also find that the spot map was prepared by Investigating Officer. The aforesaid witnesses have signed it. Mahesh Kumar Pathak (PW17) prepared the spot map. Thus, it cannot be said that Hariram and Murat were subsequently introduced as eye witnesses. Narration of the incident was made by witness Hariram and Murat to Jalam or not is not of much consequence as narration was made to several others and names of assailants were known and minute discrepancy as to narration of the facts to Jalam is not material in the instant case. On being suggested in the cross-examination that Hariram (PW3) and Murat (PW6) became unconscious, they made exaggerated statement as to the fact that they became unconscious which apparently does not appears to be sound. However, intrinsic value of their evidence is intact and they are reliable and truthful witness. On being suggested in the cross-examination that Hariram (PW3) and Murat (PW6) became unconscious, they made exaggerated statement as to the fact that they became unconscious which apparently does not appears to be sound. However, intrinsic value of their evidence is intact and they are reliable and truthful witness. It cannot be said that FIR was lodged on the basis of information given by Sarman (PW10) who has not informed names of the assailants to Jalam, this submission of learned counsel for the appellants is also not causing any dent on prosecution case as Jalam (PW1) has come to the house also before going to police station and family members were aware of the names of the assailants as Hariram (PW3) and Murat (PW6) have stated the names to them when they came crying from the spot. Thus, no dent is caused by the statement of Sarman that the names of accused have not been disclosed to him. He has corroborated the prosecution case to the extent that he had gone to call Jalam from the field after incident took place. Thus, statement of Hariram (PW3) and Murat (PW6) finds corroboration that Sarman was sent to summon Jalam (PW1). 18. It cannot be said that Hariram (PW3) and Murat (PW6) are chance witness. It is normal to go to ease before arrival of dark to attend the call of nature in the villages as their house is situated just adjacent to the boundary of village. In State of A. P. vs. K. Srinivasulu Reddy and another, reported in AIR 2004 SC 3305 , the Apex Court has observed that the evidence of independent witnesses cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. When murder is committed in a street only passerby will be the witnesses. Shri Datt has relied upon the decision rendered in Harjinder Singh alias Bhola vs. State of Punjab, reported in JT 2004(6) SC 23, in which, the Apex Court has observed that the evidence of chance witness ought to have been evaluated with greater care and caution. Since witnesses were introduced as eye witnesses only after the dead body was found, the conviction based on such evidence could not be sustained and was set-aside. The facts of instant case are otherwise. 19. Since witnesses were introduced as eye witnesses only after the dead body was found, the conviction based on such evidence could not be sustained and was set-aside. The facts of instant case are otherwise. 19. We find equally futile the submission made by the Shri Datt that accused would not have waited for arrival of the witnesses for beating the deceased. In the instant case, the witnesses had gone to answer the call of nature. Their presence was not unnatural as well as there were other persons in the close vicinity. Shibbu Dhanuk etc. were also present. It is not uncommon in the course of human conduct to commit offence in presence of others. What was in the mind of the accused was known to them only but the fact remains that the assault was seen by the witnesses and their presence on the spot is not doubtful. 20. We find that the appeal is devoid of merits and deserves dismissal. The same is hereby dismissed. Conviction and sentence of appellants under sections 148, 302 and 302 read with section 149 of Indian Penal Code is hereby affirmed. The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender forthwith, failing which, the police is to arrest them.