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2012 DIGILAW 130 (CHH)

RAJENDRA PRASAD @ RAJBO v. STATE OF C. G.

2012-05-02

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J 1. This appeal is directed against the judgment dated 15th of September, 2004 passed in Special Session Case No. 132/2000 by the Special Judge (Under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989), Ambikapur, Surguja (C.G.). By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo R.I. for life and to pay fine of Rs.500/- with default sentence of S.I. for 3 months. 2. The facts, briefly stated, are as under:- Deceased- Bati Bai was wife of Bhongla (PW-3). Sobhit (PW-2) is their son. Bhongla (PW-3) was working in Bauxite Mines, therefore, he was residing in village Manpat. Deceased- Bati Bai, her son- Sobhit (PW-2) and grandmother of Sobhit, 3 persons were residing together in village Solhapara. On 24.11.1998 Bati Bai (deceased) had gone to the market of village Sureshpur. She did not return till night. Her son Sobhit (PW-2) was waiting for the deceased in the night. The case of the prosecution is that in the late night, the appellant brought the deceased on his shoulder and left her in the verandah of her house and covered the deceased with her saree. This was witnessed by Sobhit (PW-2). At that time Sobhit (PW-2) did not go to see his mother (deceased) and went for sleeping. In the morning, when he could gather that her mother was dead, he went to the house of his uncles namely- Saniram (PW-4) and Raghuram (PW-5). They came to his house and saw that the deceased was lying dead in the verandah of her house. Raghuram (PW-5) went to Manpat and called Bhongla (PW-3). Bhongla (PW-3) talked with his son Sobhit (PW-2) and lodged merg intimation (Ex.-P/3). The Investigation Officer reached to the place of occurrence, gave notice (Ex.P/1) to the Panchas and prepared inquest (Ex.-P/2) on the dead body of the deceased. The dead body of the deceased was sent for postmortem to Community Health Center, Sitapur. The post-mortem examination was conducted by a team of two Doctors namely- Dr. Pramod Malviya (PW-8) and Dr. K.K. Dutta (PW-14). They noticed multiple external injuries on the dead body of the deceased and opined that the cause of death was coma as a result of head injury and it was homicidal in nature. The post-mortem report is Ex.-P/8. The post-mortem examination was conducted by a team of two Doctors namely- Dr. Pramod Malviya (PW-8) and Dr. K.K. Dutta (PW-14). They noticed multiple external injuries on the dead body of the deceased and opined that the cause of death was coma as a result of head injury and it was homicidal in nature. The post-mortem report is Ex.-P/8. The further case of the prosecution is that accused Rajendra Prasad @ Rajbo made extra-judicial confession before Dilip Sai and Amar Sai (PW-16). Appellant, therefore, was arrested and was put to trial. The learned Special Judge relying on the testimony of Sobhit (PW-2) found that it was proved that the appellant brought the deceased in her house in the intervening night of 24.11.98 & 25.11.98; the deceased had sustained multiple serious injuries and had died homicidal death; therefore, the appellant was liable for committing murder of the deceased and he was liable for punishment u/s 302 IPC. The appellant however was acquitted of the charges framed u/s 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Admittedly there was no eye-witness to the incident and the case of the prosecution was based on circumstantial evidence, i.e. appellant brought the deceased in injured or dead condition in her house; and the appellant made extra-judicial confession before Amar Sai (PW-16) and Dilip Sai. Dilip Sai was not examined and Amar Sai (PW-16) did not support the case of the prosecution. Therefore, the Special Judge did not rely on the circumstance of extra-judicial confession and the conviction was based on the solitary circumstance that the appellant brought the deceased (dead or alive) in her house and left her in the verandah of her house. The above circumstance was held proved on the testimony of solitary witness, Sobhit (PW-2). 4. Ms. Sharmila Singhai, learned counsel appearing on behalf of the appellant, argued that Sobhit (PW -2) is a child witness aged about 11-12 years; he is son of the deceased; his diary statement was recorded on 5.12.1998; his conduct appears to be un-natural; he did not inform the incident to the grandmother who was admittedly present in the house; therefore, the conviction based on his sole testimony cannot be sustained. Ms. Singhai cited the judgments of Zafar Vs. State of U.P. AIR 2003 SC 931 & Bhagwan Singh and others Vs. State of M.P. AIR 2003 SC 1088. Ms. Singhai cited the judgments of Zafar Vs. State of U.P. AIR 2003 SC 931 & Bhagwan Singh and others Vs. State of M.P. AIR 2003 SC 1088. 5. On the other hand, Mrs. Madhu Nisha Singh, learned counsel appearing on behalf of the State, opposed these arguments arid supported the judgment passed by the Special Court. 6. We have heard learned counsel for the parties at length and have also perused the records of the special case. 7. Child witness is a competent witness. Basic innocence and truthfulness of a child is to be taken into consideration, however, a possibility of tutoring is always present in the case of a child witness and the same has to be ruled out. Therefore, a great caution is required while appreciating the evidence of a child witness particularly when he/she is the solitary eye-witness of the actual incident or the circumstance which has to be held as incriminating against he accused. 8. Sobhit (PW-2) was aged about 11-12 years on the date of the incident. He deposed that on the date of incident her mother had gone to the market of village Sureshpur. She did not return till late night. He had not slept till midnight. He saw that the appellant brought his mother on his shoulder and laid down her on the door of their house. Seeing this, he became frightened. He did not wake up and slept in the night. In the morning, he went to see his mother and found that she was dead. Thereafter he went to his uncles i.e. Saniram (PW-4) and Raghuram (PW-5) and informed that the appellant had brought his mother after causing her death. Raghuram (PW-5), Saniram (PW-4) came to his house, saw the dead body of her mother and thereafter his father was called from village Manpat. 9. Sobhit (PW-2) admitted in the cross-examination that it was cold night and he was sleeping in the house with a blanket. He also admitted that his grand-mother was also sleeping in the house. We may note the conduct of Sobhit (PW-2) that even in a severe cold night he did not try to bring his mother inside the house. Even he did not cover her with a blanket. This we say because till morning he was not aware that her mother was brought dead by the appellant. We may note the conduct of Sobhit (PW-2) that even in a severe cold night he did not try to bring his mother inside the house. Even he did not cover her with a blanket. This we say because till morning he was not aware that her mother was brought dead by the appellant. We may further note that Sobhit (PW-2) did not inform the grand-mother that her mother has been brought by the appellant in the midnight and she is lying in the open verandah at the door of the house. The prosecution has not examined grand-mother in this matter. 10. The merg intimation (Ex.-P/3) was lodged by Bhongla (PW-3). He deposed that when he returned to his village, he had a talk with his son who told that the deceased was brought by the appellant in the midnight. He has mentioned this facts in the merg intimation which was recorded on 25.11.1998. Even after disclosure of the fact that Sobhit (PW-2) alone was claiming to see incident of bringing of her mother to the house by the appellant, his case diary statement was recorded on 5.12.1998 i.e. on the 12th day of the incident. The prosecution has not offered any explanation regarding the above inordinate delay in recording the case diary statement of the child witness who was the solitary witness of the above incident. This delay, in view of the judgment of Zafar (supra) is fatal to the prosecution. The conduct of the child witness, Sobhit (PW-2), that after having seen his mother being brought by the appellant in the midnight, he went back to sleep was a very un-natural conduct and in light of the judgment of Bhagwan Singh AIR 2003 SC 1088 (supra) his testimony cannot be relied upon. 11. That apart, there are other infirmities in the evidence of Sobhit (PW-2). Saniram (PW-4) deposed in examination-in-chief that his nephew Sobhit (PW-2) came to his place in the morning and told that the appellant had brought his mother in the night and had left her in his house. However, in the cross-examination, he admitted that Sobhit (PW-2) only told him that he was trying to wake up his mother, but she was not awaking. Raghuram (PW-5) even in the examination-in-chief deposed that Sobhit (PW-2) only asked him to come and see his mother. However, in the cross-examination, he admitted that Sobhit (PW-2) only told him that he was trying to wake up his mother, but she was not awaking. Raghuram (PW-5) even in the examination-in-chief deposed that Sobhit (PW-2) only asked him to come and see his mother. That means he did not tell him that the appellant brought his mother in the midnight. 12. In appreciation of the entire evidence available on record, we find that Sobhit (PW-2) did not go to see his mother in the night even after seeing that she was allegedly brought by the appellant; he left his mother all alone in the verandah of the house and he went to sleep; even he did not disclose these facts to his grand-mother who was admittedly present in the same house; the prosecution has also not examined the grand-mother of Sobhit (PW-2); Sobhit (PW-2) did not disclose about the incident of the night to his two uncles namely Saniram (PW-4) and Raghuram (PW-5); and over & above his case diary statement was recorded on the 12th day of the incident. All these facts and circumstances go to show that conduct of Sobhit (PW-2), the solitary child witness, was un-natural. We are of the view that in the above facts and circumstances of the case, the learned Special Judge erred in relying on the testimony of Sob hit (PW-2) and the conviction based on his solitary testimony cannot be sustained. 13. For the foregoing reasons, the appeal is allowed and the conviction and sentences awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be released forthwith, if not required in any other case. Appeal Allowed.