Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 485 (MP)

MADAN SINGH v. STATE OF M. P.

2008-03-28

AJIT SINGH, RAKESH SAKSENA

body2008
Judgment RAKESH SAKSENA, J. ( 1. ) Appellant has filed this appeal against the judgment dated 26.12.1998 passed by the First Additional Sessions Judge, Jabalpur in Sessions Trial No.467/1997, convicting him under Section 302 of the Indian Penal Code and sentencing him to life imprisonment alongwith fine of Rs.2,000/- with default stipulation. ( 2. ) It is pertinent to mention that despite repeated calls even in the third round, none appeared to argue the case on behalf of the appellant. Since the appellant is in jail for about 10 years, in the light of law laid down by the Apex Court in Bani Singh and others Vs. State of U.P., AIR 1996 SC 2439 , we ourselves perused the impugned judgment and record of the Trial Court with the assistance of Shri R.S.Patel, the learned Additional Advocate General and examined the case on merits with all care and caution. ( 3. ) In brief, the prosecution case is that the husband of Mayabai (deceased) had died. After the death of her husband, she started living with the appellant as his mistress. A few days before the incident which occurred on 21.04.1997, the father of Mayabai also died. After the death of her father, Mayabai started living at her fathers house situated at PWD Office, Set No.20, Kanchanpur. On 21.04.1997 at about 6:45 pm, the appellant went there to fetch Mayabai, but she refused to go with him whereupon he dealt two blows with a knife on her neck and ribs. Sunil (PW-1) and Manish, sons of Mayabai, informed Ramnaresh (PW-2) about the occurrence, who then went to her house. When he was carrying her to the Police Station in a cycle rickshaw, on way near Sanjay Nagar Power House, she died. Ramnaresh (PW-2) lodged the First Information Report (Exhibit P/1) at Police Station Adhartal, at 7:00 pm. Police Inspector Raghuveer Singh (PW-5) recorded the First Information Report (Exhibit P/1) and a "marg" report (Exhibit P/8). He went to the spot and after completing the inquest proceedings sent the dead body of Mayabai for post mortem examination to the Medical College, Jabalpur. ( 4. ) On 22.04.1997, Dr.J.M.Sahgal (PW-7), C.M.O. of Medical College, performed the post mortem examination of the dead body of Mayabai. He found two stab wounds on her body vide post mortem report (Exhibit P/12). ( 4. ) On 22.04.1997, Dr.J.M.Sahgal (PW-7), C.M.O. of Medical College, performed the post mortem examination of the dead body of Mayabai. He found two stab wounds on her body vide post mortem report (Exhibit P/12). One stab wound measuring 1 x cms was situated 1 cm below the adams apple on the right side of her neck going downwards cutting carotid artery, jugular vein and apical lobe of right lung upto depth of 2 cms. Second stab wound measuring 1 x 3/4 cms was situated on seventh left intercostal space at the level of posterior fold of axilla. It was going internally and medially cutting the pleura, lung and partly inferior vena cava. Total length of wound was 10 cms. In his opinion, the injuries were ante mortem in nature and were caused by hard, sharp and penetrating weapon. Cause of death was haemorrahagic shock as a result of injuries. After investigation charge sheet was filed. ( 5. ) During trial, the prosecution examined seven witnesses. Defence of the appellant was of denial and false implication. However, the Trial Court relying on the evidence of Sunil (PW-1), a child witness and medical evidence of Dr.J.M.Sahgal (PW-7) convicted the appellant for causing death of Mayabai and sentenced him as mentioned earlier. ( 6. ) Grounds highlighted in the memorandum of appeal are that the Trial Court has committed error in placing reliance on the solitary testimony of child witness Sunil (PW-1) who appears to be a tutored witness. The evidence of Sunil (PW-1) is discrepant and contradictory and has no independent corroboration. Ramnaresh (PW-2) who lodged the First Information Report, denied its contents. Ashok (PW- 4) did not support the prosecution case. As such, the Trial Court committed error in convicting the appellant. Learned counsel for the State instead submits that the evidence of Sunil (PW-1) is consistent and reliable and suffers with no infirmities. Trial Court has committed no error in placing reliance on his testimony. He supports the judgment of conviction passed by the Trial Court. ( 7. ) In a recent decision in Appeal (crl.) 345 of 2008-Nivrutti Pandurang Kokate and Ors. Trial Court has committed no error in placing reliance on his testimony. He supports the judgment of conviction passed by the Trial Court. ( 7. ) In a recent decision in Appeal (crl.) 345 of 2008-Nivrutti Pandurang Kokate and Ors. vs. State of Maharashtra, JT 2008(2) SC 556, the Apex Court elaborately dealt with the point of acceptability of child witness and observed that: "8............The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, 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. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US 523). The evidence of a 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. [See Suryanarayana v. State of Karnataka ( 2001 (9) SCC 129 )]. 9. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 3411] it was held as follows: (SCC p. 343, para5): "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. 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." The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because 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 liable 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. 10. The above position was highlighted in Ratansingh Dalsukhbhai Nayak v. State of Gujarat ( 2004 (1) SCC 64 )............." ( 8. ) Sunil (PW-1) who is young boy of about 8 years of age is a student of class-II. He has testified that when he and his brother Manish were at home and his mother was kneading flour, the appellant came to his house and demanded money from his mother and dealt knife blows on her neck and abdomen. Ashok (PW-4) and Ramnaresh (PW-2) came to his house. He has categorically stated that he saw the appellant stabbing his mother. Ashok (PW-4) and Ramnaresh (PW-2) came to his house. He has categorically stated that he saw the appellant stabbing his mother. In the cross-examination, some omissions are found in his evidence, but they do not go to the root of the case or otherwise render his testimony unreliable. Discrepancies relating to such matters as to who had taken Mayabai to hospital and whether the appellant had demanded money from her do not affect the credibility of Sunil (PW-1) on the crucial point that he saw the appellant stabbing Mayabai. In paragraph No.13 of his evidence, no doubt, he stated that he gave evidence on being asked by her sister, but he clarified that she had asked him to tell the Court as to who had killed his mother. It was nowhere suggested that he was tutored and was telling a lie before the Court. On close scrutiny of the evidence of Sunil (PW-1), it is not found to suffer with any material infirmity. The evidence of Sunil (PW-1) stands corroborated by the evidence of Dr.J.M.Sahgal (PW-7) who performed the post mortem examination of the dead body of Mayabai and found two stab wounds on her body. As stated by Sunil (PW-1), one stab wound was found on the neck and another stab wound was found on the seventh intercostal space. These injuries were caused by hard, sharp and pointed object and were homicidal in nature. ( 9. ) We are unable to hold that Sunil (PW-1) should be disbelieved merely because Ramnaresh (PW-2) who lodged the First Information Report, did not support the prosecution case. On perusal of testimony of Ramnaresh (PW-2), it is seen that he admitted that elder son of Mayabai came to him and informed that Mayabai was lying in a pool of blood. Though he admitted that he went to the Police Station and lodged the report and put his thumb impression on it, but he did not admit the contents of the First Information Report. Police Inspector Raghuveer Singh (PW-5) has testified that Ramnaresh (PW-2) had lodged the report at the Police Station and had disclosed therein that Mayabai was stabbed by the appellant. Since the First Information Report cannot be treated as substantial piece of evidence, the contents of the First Information Report lodged by Ramnaresh (PW- 2), in the present situation, can only be used for the purpose of contradicting him. Since the First Information Report cannot be treated as substantial piece of evidence, the contents of the First Information Report lodged by Ramnaresh (PW- 2), in the present situation, can only be used for the purpose of contradicting him. Ramnaresh (PW-2) has also testified that he did not know Madan Singh. In these circumstances, it appears that Ramnaresh (PW-2) is not speaking truth before the Court. Anyway, he is not an eyewitness himself. ( 10. ) It is true that in case of a child witness the Court should carefully consider as to whether the child was under the influence of some tutor. The testimony of a child witness should be accepted with great caution and circumspection, because it is common experience that a child witness is susceptible to tutoring and may thereby be made to depose about the things which he/she has not seen. On being tutored, a child witness goes on repeating like a parrot. Such witnesses become dangerous witnesses. As a rule of prudence, if the Court puts such evidence to close scrutiny and is convinced about its quality and reliability, the conviction can be based by accepting the deposition of a child witness. In the instant case, there is absolutely no material on record to indicate that Sunil (PW-1) was in any manner tutored to speak against the appellant falsely. We feel satisfied that Sunil (PW-1) was a boy of good understanding and was able of giving rational answers to the questions put to him. His presence in his house at the time of occurrence is natural On careful and cautious scrutiny of the evidence of Sunil (PW-1), we find his evidence concise, precise and specific on the point that he had seen the appellant assaulting his mother Mayabai with a knife. ( 11. ) In view of the above, we have no hesitation in concluding that Sunil (PW-1) is truthful witness and conviction can be safely based on his testimony. ( 12. ) From the evidence of Dr J.M.Sahgal (PW-7), it is established that Mayabai had received homicidal stab injuries on the vital parts of body. As a result of stab wound on the neck, carotid artery, jugular vein and apical lobe of right lung were cut The length of wound was 8 cms. Similarly, stab wound on seventh left intercostal space had internally cut pleura, lung and inferior vena cava. As a result of stab wound on the neck, carotid artery, jugular vein and apical lobe of right lung were cut The length of wound was 8 cms. Similarly, stab wound on seventh left intercostal space had internally cut pleura, lung and inferior vena cava. The length of wound was 10 cms. Mayabai had died as a result of these injuries. In the facts and circumstances of the case, we are convinced that it has been fully established that the appellant is guilty of committing murder of Mayabai and has been rightly convicted by the Trial Court under Section 302 of the Indian Penal Code. ( 13. ) In the result, the judgment of conviction and sentence of the appellant passed by the Trial Court is affirmed. The appeal is dismissed. Appeal dismissed.