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2009 DIGILAW 267 (MP)

KANHAIYA v. STATE OF M. P.

2009-02-25

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT : K. S. CHAUHAN, J. 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred being aggrieved by the judgment, finding and sentence dated 6-1-2000 passed by the Sessions Judge, Chhindwara in S.T. No. 175/1997, whereby appellant has been convicted under section 302 of Indian Penal Code and sentenced for life imprisonment. 2. The prosecution case in short is that on 2-6-1997 at 4:35 AM Udham Lodhi lodged F.I.R. at police station Amarwada to the effect that the marriage of his daughter Geeta Bai was performed before 2 years with appellant Kanhaiya. After marriage he used to harass her in connection with demand of dowry. On being harassed, she lodged report at the concerned police station, offence was registered and the case is pending in the Court of Amarwada. Due to this reason he became inimical to Geeta Bai. On the day of incident, complainant Udham Lodhi, his wife Anando Bai, daughters Geeta Bai, Sona Bai and his son Shyam were sleeping in the Courtyard of his house. The electric bulb was burning. At the same time suddenly accused Kanhaiya armed with axe came there and started inflicting axe blow to his daughter Geeta Bai. He had seen appellant inflicting two axe blows on her neck, on account of which she sustained injuries and died. Kanhaiya ran away from the spot. Shivdayal also witnessed running him from there. He cried that Kanhaiya has inflicted axe blows. On hearing his cries Rajaram Lodhi, Ramswaroop Lodhi, Sahasram Malviya, Balakram Lodhi etc. reached there. 3. On this information, Crime No. 141/1997 under section 302 of Indian Penal Code was registered at Police Station Amarwada. Panchnama of dead body was prepared. The dead body was sent for post-mortem examination, which was conducted by Dr. Leeladhar Hardiya, Assistant Surgeon (PW-6) and Dr. Archana Kaithwar. According to their opinion, the death was cardio respiratory failure due to shock (excessive haemorrhage) and due to complete cut of trachea within 12-24 hours of her examination. The wearing clothes such as sari, blouse, petticoat and underwear of the deceased were seized. Spot map was prepared. The country and blood stained earth was also seized. The statements of witnesses were recorded under section 161, Cr.P.C. The disclosure statement of appellant under section 27 of the Indian Evidence Act was recorded and in pursuance thereof axe was recovered. He was arrested. Spot map was prepared. The country and blood stained earth was also seized. The statements of witnesses were recorded under section 161, Cr.P.C. The disclosure statement of appellant under section 27 of the Indian Evidence Act was recorded and in pursuance thereof axe was recovered. He was arrested. His shirt and pant were seized. The seized articles were sent for chemical examination to FSL, Sagar. According to the report, blood was found on Article A, C1 to C-4, D, E and Fl and F-2. The articles were also sent to the Serologist and Chemical Examiner to the Government of India, Calcutta. Report received from there. As per report, Items No. 1 to 6, 8 and 9 were found stained with human blood. The blood stained on Item No. 7 was disintegrated and its origin could not be determined. Items Nos. 2, 4, 6, 8 and 9 were stained with 'O' group blood. After completing the investigation, the charge-sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Amarwada, who committed this case to the Sessions Court for trial. 4. The accused was charged under section 302 of Indian Penal Code. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as 12 witnesses and placed the documents Exhibit P-1 to P-14 on record. Accused appellant also examined four witnesses and placed the documents Ex.D-1 to D-7 on record. After appreciating the evidence, trial Court found the appellant guilty and sentenced thereto as stated hereinabove in para 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellant on the grounds mentioned in the memo of appeal. 5. Shri Vijay Nayak, learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. The trial Court has erred in relying upon the statements of Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3). There was no source of light. Rajaram (PW-8) and Dwarka Prasad (PW-9) had not seen any bulb at the spot, therefore, evidence of Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) become falsified that they saw the appellant-accused inflicting axe blows to Geeta Bai. There was no source of light. Rajaram (PW-8) and Dwarka Prasad (PW-9) had not seen any bulb at the spot, therefore, evidence of Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) become falsified that they saw the appellant-accused inflicting axe blows to Geeta Bai. On the contrary the evidence is that there was no light on the day of incident, hence these witnesses could not see the incident and identify the appellant. Learned counsel further submitted that in light of finding of the trial Court that Shyam (PW-3) was not sleeping with his sister Geeta Bai and he did not cry, in such situation the evidence of Udham Lodhi (PW-1) and Anando Bai (PW-2) is not acceptable. The disclosure statement and the seizure memo of axe have also not been proved. There is delay in arresting the appellant. The FIR is ante-dated and ante-timed. The provisions of section 157 of Criminal Procedure Code have not been complied with. The appellant has been falsely implicated on the basis of suspicion. The prosecution has failed to establish the guilt against the appellant beyond reasonable doubt, hence finding of guilt is erroneous, which deserves to be set aside and the appellant is entitled for acquittal. 6. On the contrary, Shri T. K. Modh, learned counsel appearing on behalf of the respondent/State supported the impugned judgment, finding and sentence mainly contending that Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) had seen the appellant inflicting axe blows to Geeta Bai. There is no delay in arresting the appellant. Non-compliance of provision of section 157 of Criminal Procedure Code is not fatal to the prosecution. The prosecution has established the guilt beyond reasonable doubt against the appellant, hence it does not call for any interference. 7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under section 302 of Indian Penal Code. 8. Geeta Bai was married with this appellant Kanhaiya prior to two years of this incident. After marriage, the appellant started demanding dowry and causing her harassment for which she lodged report at the concerned police station. She was residing with her parents. 9. On the day of incident, Geeta Bai was sleeping on a cot in the Courtyard of house. Her brother Shyam (PW-3) was sleeping with her on the same cot. After marriage, the appellant started demanding dowry and causing her harassment for which she lodged report at the concerned police station. She was residing with her parents. 9. On the day of incident, Geeta Bai was sleeping on a cot in the Courtyard of house. Her brother Shyam (PW-3) was sleeping with her on the same cot. Her mother Anando Bai (PW-2) was sleeping nearby to them. Her father Udham Lodhi (PW-1) was also sleeping in a room. According to the prosecution, on account of enmity this appellant came at midnight and inflicted axe blows at the neck of Geeta Bai, on account of which she sustained injuries and died. Udham Lodhi (PW-1), Anando Bai (PW--2) and Shyam (PW-3) have given evidence in this regard. They have deposed in one voice that they saw appellant Kanhaiya inflicting axe blows at the neck of Geeta Bai as a result thereof she sustained injuries and died at the spot. Udham Lodhi (PW-1) lodged F.I.R. Ex.P-1, which was recorded by Badri Prasad (PW-9). He prepared Panchnama of the dead body and sent for post-mortem. He also prepared spot map Ex.P-8. Dwarka Prasad (PW-8) also prepared the spot map Ex.P-9. 10. These witnesses have been subjected to lengthy cross-examination to test their veracity and some contradictions and omissions have been brought in the statements of Udham Lodhi (PW- 1), Anando Bai (PW-2) and Shyam (PW-3). 11. The first and most important argument of learned counsel for the appellant is that there was no source of light, therefore it was very difficult for Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) to identify the assailant, therefore no reliance can be placed on their evidence. Learned counsel for the appellant in support of his contention has placed reliance on the following decisions :- (i) (2002) 1 SCC 487 , Thanedar Singh vs. State of M. P., (ii) AIR 2004 SC 797 , State of M. P. vs. Ghudan, (iii) AIR 1955 SC 762 , Mohinder Singh vs. State of Punjab, (iv) AIR 1983 SC 554 , Darshan Singh vs. State of Punjab, (v) 2004 SCC (Cri) 93, Joseph alias Jose vs. State of Kerala. 12. On the contrary Shri T. K. Modh, learned counsel appearing on behalf of the State submitted that there was sufficient light to identify the assailant and Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) have rightly identified the appellant. 12. On the contrary Shri T. K. Modh, learned counsel appearing on behalf of the State submitted that there was sufficient light to identify the assailant and Udham Lodhi (PW-1), Anando Bai (PW-2) and Shyam (PW-3) have rightly identified the appellant. In support of his contention, he has placed reliance on the following decisions :- (i) AIR 1981 SC 1217 , Shakti Patra vs. State of West Bengal, (ii) AIR 2006 SC 2716 , S. Sudershan Reddy vs. State of A. P., (iii) AIR 1983 SC 957 , Machhi Singh vs. State of Punjab, (iv) (1997) 4 SCC 445 , Kalika Tiwari vs. State of Bihar. 13. In the case of Thanedar Singh (supra) the Apex Court has held thus :- "9. While the possibility of identification of the accused-appellant cannot be ruled out in the present case too having regard to the fact that the accused was not stranger and the occurrence was at an open place, there is one more factor which creates some difficulty in the matter of identification. PW 6 as sleeping on a cot at a little distance from the spot where the victim was sleeping. PW 6 stated that as many as five persons including the appellant surrounded his son and two of the accused were standing in front of his cot. In this situation, assuming that there was faint light emanating from the open sky, would it be possible for PW 6 to observe the appellant firing the shot from the rifle? The possibility seems to be remote. At any rate, this aspect ought to have engaged the attention of the High Court before reversing the trial Court's finding on the point of identification by PW 6". In the case of Ghudhan (supra) the Apex Court has held thus :- "7. From the evidence of PW-26, it is seen that he states that he noticed a person of medium height with curly hair having somewhat darkish complexion coming out of the house of the MLA who after threatening him shot the deceased three times. According to him, there was a tube light near the place of incident, hence, he could identify the accused. According to him, there was a tube light near the place of incident, hence, he could identify the accused. The High Court in its judgment has observed that the factum of the existence of a tube light at the place of incident is doubtful because the sketch of the place of the incident as prepared by the prosecution did not indicate any such light. It is only for the first time while giving evidence before the Court, PW-26 pointed out a place in the sketch where according to him the tube light was placed. The trial Court accepted it and came to the conclusion that there was sufficient light at the place of incident. The High Court, per contra, observed that if really there was a tube light at the place of the incident, the investigation officer would not have failed to mark the existence of that tube light in the sketch. The omission to do so creates doubt as to the possibility of there being sufficient light for identification. We are in agreement with this finding of the High Court. If really there was a tube light by which PW-26 identified the respondent then investigating agency would certainly have shown the existence of a tube light and its placement in the sketch because it was a very important fact mainly because the identification of the accused is a vital factor to be proved by the prosecution. The benefit of the omission to point out the existence of such light in the sketch, in our opinion, should go to the accused. That apart, we find some serious discrepancies in the manner in which the PW-26 identified the respondent in the parade. As noticed above, this witness has specifically stated certain salient physical features of the respondent which assisted him in identifying the accused respondent. But if we peruse his evidence given in the Court in regard to test identification parade, we notice that none of those features which assisted in identifying the accused really existed at the time of the test identification parade. PW-26 in the course of his examination stated thus: "The Tehsildar called five-six prisoners from inside. All those who were brought were wrapped in blankets and all of them were young. I do not remember their looks as all were wrapped in blankets. Their hairs were not visible. PW-26 in the course of his examination stated thus: "The Tehsildar called five-six prisoners from inside. All those who were brought were wrapped in blankets and all of them were young. I do not remember their looks as all were wrapped in blankets. Their hairs were not visible. I did not notice this even, how many of them had moles on their noses, I cannot tell how many of them were dark and how many were fair. I cannot tell how many of them were of medium stature and how many were short statured. I did not tell the Tehsildar about the mark of my identification. I did not tell the Tehsildar, that the person whom I have come to identify possesses curly hair and is dark coloured." In the case of Mohinder Singh (supra) the Apex Court has held thus :- "7................... In the present case we find that the evidence of the three witnesses aforesaid on which the case against the appellant depends is not free from the blemish that they have been more emphatic in their assertions than the circumstances of the case would justify. They were roused from a sound sleep by the alarm raised, in the first instance by the dying man so far as P.W.1 is concerned, and of P.W.1 himself so far as the other two witnesses' evidence goes. When they were suddenly roused from their sleep in the early part of the dark night without any previous, apprehensions, it would be difficult for them to notice what they claim to have clearly observed. As already indicated, it is a case of their convincing themselves, however honest they may have been, that the two accused were the persons concerned in the crime without having clearly seen them or being able to see them. At any rate, in the case of the first witness for the prosecution who started the theory on which the prosecution case is based, his eyesight appears to have been too dim to enable him to see clearly in the dark night, as he claims to have done, that the two accused had dealt the fatal blows. If the basic evidence of P. W. 1 is subject to reasonable doubt as to its correctness, as we think it is, there is no difficulty in viewing the evidence of P. Ws. 4 and 5 with the same doubt". If the basic evidence of P. W. 1 is subject to reasonable doubt as to its correctness, as we think it is, there is no difficulty in viewing the evidence of P. Ws. 4 and 5 with the same doubt". In the case of Darshan Singh (supra) the Apex Court has held thus :- "9. The evidence of the three eye-witnesses, Mohinder Singh (P.W.15), Nirval Singh (P.W.16) and Sant Kaur (P.W.24) is broadly true and since that evidence has been accepted by both the Courts, we will not scan it any further. It is, however, necessary to state that these eyewitnesses are not likely to have seen the specific part played by each one of the accused. The night was dark, the time midnight and the witnesses, who were fast asleep, were woken up either by barking of the dogs or by the sound of gun-shots. There was a small lantern hanging a few feet away. Mohinder Singh concealed himself behind a pillar and fired shots at the accused in self-defence, killing a person on the side of the accused. He has named accused 3, 5, 6 and 8 while Nirval Singh and Sant Kaur who received gun-shots injuries have named accused 3 to 9. The evidence of the last two witnesses in regard to the presence of accused 3 to 9 and their being armed appears to us to be open to no exception. Shri Kohli who appears on behalf of accused No. 5 says that the name of that accused was not mentioned in the F. I. R., not even in the supplementary F. I. R., and that he was not involved in the conspiracy. That is so, but the failure of Mohinder Singh to refer to everyone of the accused in the F. I. R. does not detract from the evidence of the two injured witnesses in regard to the presence of accused No. 5. Hiding behind a pillar, Mohinder Singh was evidently not in a position to see the whole of the incident". In the case of Joseph alias Jose (supra) the Apex Court has held thus :- "15. It is not clear from the record as to when exactly the occurrence took place. Hiding behind a pillar, Mohinder Singh was evidently not in a position to see the whole of the incident". In the case of Joseph alias Jose (supra) the Apex Court has held thus :- "15. It is not clear from the record as to when exactly the occurrence took place. The case of the prosecution is that the occurrence took place between 7 and 8:30 p.m. However from the testimony of PW1 it appears that PW-2 came running to him at about 8:30 pm and informed him about the occurrence. It also appears from the testimony of PW-2 that he had gone to the arrack shop at about 7:30 pm with the deceased and that they had sat there for a while. Thereafter while returning the occurrence took place. The time of occurrence given by PW-3 is rather vague according to him the occurrence took place between 7 and 8:30 pm. In this statement evidence on record the High Court assessed that the occurrence may have taken place at about 8.15 pm as stated in para 2 of the judgment. It is an admitted position that at the time of occurrence the supply of electricity was switched off and therefore there was no electrical light available. As admitted by PW-3 the supply of electricity was restored between 10 and 10:30 pm. According to the prosecution, light was available since there was a candle burning inside the house of the accused and kerosene lamp burning in the house of PW-3. In our view the candle in the house of accused and the kerosene lamp burning in the house of PW-3 could hardly prove enough light for one to identify the person committing the offence at the place of occurrence which was outside the house of accused by the side of the pathway. It is the case of the prosecution that the deceased himself was carrying a candle and was covering the flame with a coconut shell to prevent it from getting extinguished. The candle and the coconut shell were recovered from in front of the house of the accused where stabbing had taken place according to the prosecution. Surprisingly the coconut shell had no carbon deposit or wax deposit or bloodstains on it. That apart, a candle light in the hand of the deceased could hardly provide sufficient light to facilitate identification. The candle and the coconut shell were recovered from in front of the house of the accused where stabbing had taken place according to the prosecution. Surprisingly the coconut shell had no carbon deposit or wax deposit or bloodstains on it. That apart, a candle light in the hand of the deceased could hardly provide sufficient light to facilitate identification. Moreover, PW-3 did claim even during investigation that there was sufficient light. In his evidence he stated that there was usual light. Evidence on record is therefore indicative of the fact that there was no sufficient light at the time of occurrence to enable the witness to identify the accused at some distance". In the case of Shakti Patra (supra) the Apex Court has held thus :- "3. The only point argued before us is that as there is no mention of the torchlight in the F.I.R. or in the statements of the witnesses before the Police the presence of torch was not proved. Hence it would not have been possible to identify the appellants. Even if this omission is there it loses its significance in view of the direct testimony of P. Ws. 3, 4 and 7 who state that when they reached the spot they found the torch burning which clearly shows that the version of P. W. 1 that he had a torch with him in the light of which he had identified the appellants is correct. In the case of S. Sudershan Reddy (supra) the Apex Court has held thus :- "18. Learned counsel for the appellants submitted that the non-mention about the source of light in the FIR is clearly fatal to the prosecution case. Strong reliance is placed on the decisions in Bollauaram Pedda Narsi Reddy and ors. vs. State of Andhra Pradesh, 1991(3) SCC 434 . As has rightly pointed out by the learned counsel for the Respondent-State such a plea was not taken before either the trial Court or the High Court. It is interesting that in the cross-examination of the witnesses, the defence has suggested that the light was dim because the scooter had practically stopped moving and there was only idling of the engine. PW 2's evidence is categorical that he saw the attack in the light of the scooter head light. This was stated in the cross-examination by the accused persons. PW 2's evidence is categorical that he saw the attack in the light of the scooter head light. This was stated in the cross-examination by the accused persons. Similarly PW 3 was asked as to whether he could tell the number of blows each accused gave. He answered in the affirmative. Indirect suggestion therefore was that though the blows were there, he could not tell the number. To say the least this is irresponsible cross-examination. Though for that alone the prosecution case does not get strengthened yet this is a factor which can be taken note of. Non-mention in the FIR about the source of light is really non-consequential. It is well settled that FIR is not an encyclopaedia of the facts concerning the crime merely because of minutest details of occurrence were not-mentioned in the FIR the same cannot make the prosecution case doubtful. It is not necessary that minutest details should be stated in the FIR. It is sufficient if a broad picture is presented and the FIR contains the broad features. For lodging FIR, in a criminal case and more particularly in a murder case, the stress must be on prompt lodging of the FIR. Therefore mere absence of indication about the source of light does not in any way affect the prosecution version. Additionally the decision in Bollanaram's case (supra) is really of no assistance to the appellant. It is apparent that the observation regarding the non-mention about the source of light in that case was by way of description of the factual scenario. It was noted by the Court that victims were strangers to the accused. In that background the source of light was found to be of some importance". In the case of Machhi Singh (supra) the Apex Court has held thus :- "5. The most serious criticism pressed into service by learned counsel for the appellants in each of the appeals is common. Instead of dealing with the identical criticism, in the identical manner, repeatedly, in the context of each matter, we propose to deal with it at this juncture. The criticism is this. It was a dark night. Electricity had not yet reached the concerned village at the material time. Instead of dealing with the identical criticism, in the identical manner, repeatedly, in the context of each matter, we propose to deal with it at this juncture. The criticism is this. It was a dark night. Electricity had not yet reached the concerned village at the material time. In each crime the appreciation of evidence regarding identification has to be made in the context of the fact-situation that a lighted lantern was hanging in the Court-yard where the victims were sleeping on the cots. The light shed by the lantern cannot be considered to be sufficient enough (such is the argument) to enable the eye witnesses to identify the culprits. This argument has been rightly rebuffed by the Sessions Court and the High Court, on the ground that villagers living in villages where electricity has not reached as yet, get accustomed to seeing things in the light shed by the lantern. Their eyesight gets conditioned and becomes accustomed to the situation. Their powers of seeing are therefore not diminished by the circumstance that the incident is witnessed in the light shed by the lantern and not light. Moreover, identification did not pose any serious problem as the accused were known to the witnesses. In fact they were embroiled in a long-standing family feud. As the culprits had not covered their faces to conceal their identity, it was not difficult to identify them from their facial features, build gait etc. Light shed by the lantern was enough to enable the witnesses to identify the culprits under the circumstances. In the case of Kalika Tiwari (supra) the Apex Court has held thus :- "16. Learned counsel for the appellants pointed out from evidence that the only light then available for PW-1 Sanfula Devi was an earthen lamp burning inside the room. On that score he contended that the said light was too meagre to identify the participants of the crime. The visibility capacity of urban people who are acclamatised to fluorescent lights of incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. A similar view has been adopted by this Court in Machhi Singh vs. State of Punjab, AIR 1983 SC 957 . Their visibility is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. A similar view has been adopted by this Court in Machhi Singh vs. State of Punjab, AIR 1983 SC 957 . For that reason we are not impressed by the argument that the light from earthen lamps would not have been sufficient for those witnesses to identify the assailants." 14. In the light of the pronouncement of the Apex Court, we would like to critically scan the evidence in this regard. Udham Lodhi (PW-1) has clearly mentioned in the F.I.R. Ex.P-1 that he and his family members were sleeping in the Courtyard and the electric bulb was burning. He has identified the assailant in light of the bulb. Thus this witness has mentioned in FIR regarding source of light at the place of occurrence. He has further supported this fact in his deposition and has given detailed evidence in this regard. 15. Anando Bai (PW-2) has also stated that there was electric light from the bulb in Oryati, though she has been contradicted on this point from her earlier statement Ex.D-1. Shyam (PW-3) has also deposed that there was light at the time of incident, but after five minutes of the incident the electricity had gone. 16. Thus these witnesses are giving evidence that there was light at the time of incident. 17. Ramswaroop (PW-4), Sahasram (PW-5) and Rajaram (PW-7) have deposed that Udham told them that appellant Kanhaiya inflicted axe blows to Geeta Bai and ran away. Out of them, Sahasram (PW-5) has deposed that on the day of incident at about 10:30 PM he went to sleep and light was there at that time. Rajaram (PW-7) has also deposed that there was light at the house of Udham (PW-1). Thus these witnesses also supported the fact that there was light. 18. Badri Prasad (PW-9) prepared the spot map Ex.P-8, but he did not mention that there was bulb in Courtyard, however he has given explanation that due to mistake he could not mention such fact. It appears that there was mistake on the part of Badri Prasad (PW-9), Investigating Officer, because in the FIR Ex.P-1 it was clearly mentioned by the informant Udham Lodhi (PW-1) that bulb was burning. Likewise Dwarka Prasad, Patwari (PW-8) has also not mentioned such fact in the map Ex.P-9. It appears that there was mistake on the part of Badri Prasad (PW-9), Investigating Officer, because in the FIR Ex.P-1 it was clearly mentioned by the informant Udham Lodhi (PW-1) that bulb was burning. Likewise Dwarka Prasad, Patwari (PW-8) has also not mentioned such fact in the map Ex.P-9. He has given the explanation that this fact was not told to him. Thus in light of these maps it has not been shown that there was bulb in the Courtyard of house. But the lapse on the parts of these witnesses do not adversely affect the prosecution case, because it was obligatory on their part to mention this fact either in positive or negative because informant clearly mentioned in FIR that bulb was burning in Courtyard and he identified the appellant in light. 19. From the evidence of Rajesh, Junior Engineer, MPEB (PW-11) and Bharatlal (DW-2) it is manifestly clear that this village was electrified. The supply of electricity was from Khireti feeder but on the basis of Register (Ex.D-5) Bharatlal has deposed that the supply of electricity was withheld in the intervening night of 1-6-1997 to 2-6-1997. On the contrary Rajesh has stated that no such fact is mentioned in register that the supply of particular village was withheld. It is only mentioned that the supply of particular feeder was withheld. Thus it appears that Bharatlal has made such entry to favour the appellant. This register was also not deposited at the proper time in office. It remained in custody of this Lineman, hence he had full opportunity to mention such fact later on. Therefore no reliance can be placed on evidence of Bharatlal (DW-2). Most of the prosecution witnesses have deposed before Court that there was light, hence there was every possibility to these witnesses to identify the assailant. 20. Even assuming the defence version, then this is the position that Geeta Bai, her parents, brother and sister were sleeping quite nearby to each other and this appellant selected victim and inflicted axe blows at her neck. When in such light he identified his victim, why the witnesses could not identify him in the same light. Appellant was not stranger but son-in-law of that family, who was well known to them and therefore he could be identified even in a very dim light or moonlight or glows of stars. 21. When in such light he identified his victim, why the witnesses could not identify him in the same light. Appellant was not stranger but son-in-law of that family, who was well known to them and therefore he could be identified even in a very dim light or moonlight or glows of stars. 21. In the case of Bhola Singh vs. State of Punjab, AIR 1994 SC 137 it has been held that if the light available was sufficient for the accused to identify their target, such light would also be then sufficient for the witnesses to identify the assailant. In the case of State of U. P. vs. Nahar Singh, AIR 1998 SC 1328 it has been held that where the light was enough to enable the assailant to identify the victim, it cannot be said that light was not enough to identify the assailant. Thus, the contention of learned counsel for the appellant that there was no sufficient light to identify the appellant is not acceptable in the facts and circumstances of this case. 22. The next contention of learned counsel for the appellant is that there is variance regarding the place where Geeta Bai was sleeping. 23. No doubt some of the witnesses have said that Geeta Bai was sleeping in the Courtyard and some have stated that she was sleeping in Parchhi, therefore we would like to critically examine the evidence of Badri Prasad (PW-9) and Dwarka Prasad (PW-8). Badri Prasad (PW-9) has deposed that he has prepared the map Ex.P-8, wherein place of occurrence is open Courtyard in front of the house, which is shown by mark 'A'. Shyam, brother of the deceased was sleeping with his sister Geeta Bai, Anando Bai, mother of the deceased was sleeping nearby to them and Udham Lodhi, father of the deceased was sleeping in a room, which was quite nearby to the place of occurrence. 24. Dwarka Prasad (PW-8) has given the detailed description of the map Ex.P-9 prepared by him. According to him, the place of occurrence is the Courtyard nearby to Parchhi and this Parchhi is open place. He has described the place of occurrence by mark-1. 24. Dwarka Prasad (PW-8) has given the detailed description of the map Ex.P-9 prepared by him. According to him, the place of occurrence is the Courtyard nearby to Parchhi and this Parchhi is open place. He has described the place of occurrence by mark-1. The place where Anando Bai (PW-2) was sleeping is at the distance of only 5 feet, whereas the place where Udham Lodhi (PW-1) was sleeping is at the distance of 7 feet and there was no door in the room of Udham Lodhi. It clearly indicates that they were sleeping quite nearby to each of her. The place where Geeta Bai was sleeping was open and hence easily approachable. Courtyard, Parchhi, Room etc. were adjoining, therefore the discrepancy being minor in nature is of no consequence and does not adversely affect the prosecution case. 25. The next contention raised by learned counsel for the appellant is that Shy am (PW-3) is a child witness and he has admitted that he was tutored by his father Udham (PW-1) to depose that he was sleeping with his sister Geeta Bai, therefore his evidence is not reliable. Learned counsel for the appellant in support of his contention has placed reliance on the decision reported in AIR 1994 SC 1068 , Arvind Singh vs. State of Bihar. 26. On the contrary Shri T. K. Modh, learned counsel for respondent/State has submitted that presence of Shyam (PW-3) is not doubtful at the spot. He has given the evidence regarding the incident, therefore he is a reliable witness. Learned counsel for the respondent further submitted that the reliance can be placed on the testimony of untutored child witness. In support of his contention he has placed reliance on the following decisions :- (i) AIR 2002 SC 3302 , Dhanraj and others vs. State of Maharashtra, (ii) (2004) 1 SCC 64 , Ratansinh Dalsukhbhai Nayak vs. State of Gujarat 27. In the case of Arvind Singh (supra) the conviction was based only on the evidence of child aged 5 years, a daughter of the deceased and there was apparent traces of tutoring the witness. There was no independent corroboration of the evidence of this witness. In such circumstances, evidence of child witness was not relied upon. 28. In the case of Arvind Singh (supra) the conviction was based only on the evidence of child aged 5 years, a daughter of the deceased and there was apparent traces of tutoring the witness. There was no independent corroboration of the evidence of this witness. In such circumstances, evidence of child witness was not relied upon. 28. In the case of Dhanraj (supra) it has been observed that a student of 8th standard, these days acquires sufficient understanding to perceive the facts and to narrate the same. Hence, the evidence of a child witness (PW-2) was relied upon. 29. In the case of Ratansinh Dalsukhbhai Nayak (supra) it has been held that mere fact that the child was asked to say about the occurrence and as to what she saw, did not amount to tutoring. 30. It is settled principle of law that child witness is competent to testify provided he understands the questions and gives the rational answers and is not tutored. In case of tutoring, the corroboration by independent evidence is required. 31. In the present case, Shyam (PW-3) aged 12 years is a child witness. He has admitted in his cross-examination that his father told him to depose before the Court that he was sleeping with his sister Geeta Bai. In such circumstances, this fact can be avoided that he was sleeping with Geeta Bai at the time of incident, but his presence at the spot cannot be doubted, because he was child and his parents were sleeping there, and nothing has been brought on record that he was not present in his house. Since he has deposed that he saw appellant inflicting axe blows to his sister Geeta Bai, on account of which she sustained injuries cannot be discarded. Even accepting the argument of learned counsel for the appellant that Shyam (PW-3) was tutored witness, then Udham Lodhi (PW-1) and Anando Bai (PW-2) have also witnessed the incident. Therefore, the evidence of Shyam (PW-3) is corroborated by the evidence of his parents. This is not the case, which is based only on the testimony of the child witness, but there is sufficient other evidence to support the fact that appellant inflicted axe blows to Geeta Bai. In such circumstances the evidence of child witness Shyam (PW-3) cannot be discarded. 32. This is not the case, which is based only on the testimony of the child witness, but there is sufficient other evidence to support the fact that appellant inflicted axe blows to Geeta Bai. In such circumstances the evidence of child witness Shyam (PW-3) cannot be discarded. 32. Next contention raised by learned counsel for the appellant is that the F.I.R. is ante dated and ante timed and the prosecution has not complied with the provisions of section 157 of Criminal Procedure Code, therefore the prosecution case be thrown out. In support of his contention, he has placed reliance on the decision reported in (1997) 11 SCC 19 , State of U. P. vs. Bhagwan and others. 33. On the contrary Shri T. K. Modh, learned counsel for the respondent-State has submitted that the F.I.R. is not ante dated and ante timed and non-compliance of provision of section 157, Criminal Procedure Code is not fatal to the prosecution case. In support of his contention, he has placed reliance on the decisions reported in (2003) 9 SCC 52 , Basisth Roy and others vs. State of Bihar. 34. So far as present case is concerned, it appears from the evidence of Badri Prasad (PW-9) that such report was not sent to the Magistrate. He has not given the explanation. It was obligatory for the Investigating Officer to send such report to the Magistrate. However, keeping in view the facts and circumstances of this case, it cannot be said to be fatal to the prosecution. The reason is that the incident is of the intervening night of 1-6-1997 and 2-6-1997 at about 00.5 hours and the place of occurrence is 12 kms from the police station Amarwada. The report was lodged at 4:30 AM, which indicates that the report was promptly lodged. The investigation was started immediately and most of the investigation completed on 2-6-1997, even the appellant was also apprehended on the same day and arrested vide Ex.P-12. The post-mortem of the deceased was conducted on the same day. In such circumstances, it cannot be said that the FIR was ante-dated and ante timed, therefore the entire prosecution case cannot be thrown out on this ground but we deprecate such practice on the part of Investigation Officer for not complying with the provisions of section 157, Criminal Procedure Code. 35. In such circumstances, it cannot be said that the FIR was ante-dated and ante timed, therefore the entire prosecution case cannot be thrown out on this ground but we deprecate such practice on the part of Investigation Officer for not complying with the provisions of section 157, Criminal Procedure Code. 35. Learned counsel for the appellant further submitted that there is delay in arresting the accused-appellant. But this contention is not acceptable merely on the ground that on the succeeding day of the incident appellant has been arrested. 36. It is evident from the statement of Badri Prasad (PW-9) that disclosure statement (Ex.P-6) of the appellant was recorded and in pursuance thereof an axe was seized vide seizure memo Ex.P-7. Thus, the evidence has been brought on record that weapon, which was used in commission of offence has been seized at the instance of this appellant. 37. As stated earlier, Panchanama Ex.P-2 of the dead body was prepared. The dead body was sent for post-mortem examination, which was conducted by Dr. Leeladhar Hardiya, Assistant Surgeon (PW-6), who found the following external injuries on the person of the deceased :- (i) Incised wound on anterior aspect of neck just above thyroid cartilage 12cm x 5cm x 8cm. Transverse in direction. Trachea completely cut and esophagus also cut ¾ in its circumference only 1/4 part of esophagus was attached. Food particles coming out from cut part of esophagus. Muscles and blood vessels are also cut. (ii) Incised wound on right side neck placed obliquely from middle 3rd of stermo to middle part of mandible 8cm x 3cm x 4cm. Muscles and blood, vessels cut. Margins clean cut and smooth. Coagulated blood present in subcutaneous tissues. (iii) Incised wound on left side over clavicle region at junction of 1/3rd and middle 1/3rd of clavicle 4cm x 2½ x 1½ cm oblique in direction. Margins clean cut and coagulated blood present in subcutaneous tissues. 38. According to the opinion of Dr. Leeladhar Hardiya, Assistant Surgeon (PW-6) these injuries were caused by sharp edged weapon. The injuries were antemortem in nature and were sufficient in ordinary course of nature to cause death. These injuries were homicidal in nature. As per the post-mortem report, the death was cardio respiratory failure due to shock (excessive hemorrhage) and due to complete cut of trachea within 12-24 hours of her examination. The post-mortem report is Ex.P-2. The injuries were antemortem in nature and were sufficient in ordinary course of nature to cause death. These injuries were homicidal in nature. As per the post-mortem report, the death was cardio respiratory failure due to shock (excessive hemorrhage) and due to complete cut of trachea within 12-24 hours of her examination. The post-mortem report is Ex.P-2. Thus, medically it is proved that death of Geeta Bai was homicidal in nature. The ocular evidence adduced by the prosecution finds support from the medical evidence. 39. From the evidence of Badri Prasad (PW-9), it reveals that the clothes which Geeta Bai were wearing at the time of incident were seized vide seizure memo Ex.P-11. The pant and shirt of the appellant were also seized vide Ex.P-5. An axe was seized at the instance of the appellant vide seizure memo Ex.P-7. Blood stained and country soil was seized vide seizure memo Ex.P-4 and these articles were sent to FSL, Sagar for chemical examination, from where report Ex.P-13 has been received. 40. On perusal of this report Ex.P-13, it reveals that blood was found on Article A, C1 to C-4, D, E and Fl and F-2. The articles were also sent to the Serologist and Chemical Examiner to the Government of India, Calcutta, from where report Ex.P-14 has been received. Dr. (Smt.) Sobha Chakraborty (PW-12) has deposed that she had examined the articles received from FSL, Sagar in connection with Crime No. 141/1997 of Police Station Amarwada. As per this witness, human blood was found on Items No. 1 to 6, 8 and 9, but the blood stained on Item No. 7 was disintegrated and its origin could not be determined. She has further deposed that Items No. 2, 4, 6, 8 and 9 were stained with 'O' group blood. Thus, these reports also support the prosecution case. 41. On critical appraisal of the entire evidence adduced in the case, we are of the considered opinion that prosecution has established the guilt against the appellant beyond reasonable doubt. The trial Court has dealt with every aspect in great detail and has found him guilty. We do not find any infirmity, illegality or perversity in such finding, hence the same is hereby affirmed. The appeal is devoid of substance and deserves to be dismissed. 42. Consequently, this appeal fails and is dismissed accordingly. The trial Court has dealt with every aspect in great detail and has found him guilty. We do not find any infirmity, illegality or perversity in such finding, hence the same is hereby affirmed. The appeal is devoid of substance and deserves to be dismissed. 42. Consequently, this appeal fails and is dismissed accordingly. The finding of conviction and sentence awarded by the trial Court section 302 of Indian Penal Code is hereby maintained.