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2015 DIGILAW 340 (JHR)

Parvati Gope v. State of Jharkhand

2015-03-04

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
JUDGMENT : Virender Singh, J. Appellant-Parvati Gope (hereinafter to be referred as 'accused') is the daughter-in-law of Podu Gope (hereinafter to be referred as 'deceased'). As per the prosecution case, she assaulted the deceased with some sharp edged weapon in a room of house. There appears to be injuries on the person of the deceased caused by some heavy blunt weapon also as three ribs of the deceased were found to be fractured as one finds from the postmortem report. However, the weapon of offence is not recovered from the accused during the investigation of the case. She stands convicted for the charge of section 302 IPC and sentenced to life imprisonment vide impugned judgment of the learned Additional Sessions Judge, Fast Track Court No.-II, Chaibasa in Sessions Trial No. 159 of 2002. Hence, the instant appeal. 2. Accused is said to be in custody for the last more than twelve years, therefore, keeping in consideration her incarceration period, the instant appeal is given priority and taken on board for its final consideration. 3. First informant of the present case is PW Hati Ram Banra, who on an information supplied to him by his co-villager PW Dakua Mukru Banra, approached the police on 03.08.2002 stating therein that on 02.08.2002 at about 9.00 PM, deceased was assaulted and killed by his daughter-in-law (accused herein) by a sharp edged weapon. It is further stated in the first information report that after getting the information from the aforesaid Dakua Mukru Banra, he went to the house of the deceased and saw that his dead body was lying on one side of the room and accused was sitting on the cot outside the house. At that time, son of the deceased namely, Akhilesh Gope had gone to Gope Tola of that village in Shraddh Karm (last rituals of someone) and on his enquiring about the murder, daughter of the deceased namely, Sumitra Gope (appeared as a witness during trial) disclosed him that all her family members had gone to Gope Tola in Shraddh Karm and the deceased at the time was alone in the house and when at about 4.30 PM accused returned to her house from Shraddh Karm, at that time, her younger sister Pan Mai Gope (appeared as witness during trial) aged 08 years, had also come back. She heard some sound of fight in the room and when wanted to enter the room, the accused restrained her telling that she was killing snake in the room upon which Pan Mai Gope got frightened and again went to Shraddh Karm and when she (Sumitra Gope) came to her house, she saw that her father was lying dead in the room and there were mark of injuries on his face and neck. The accused at that time tried to run away from the house, but on raising alarm by her, villagers assembled there and asked the accused about the occurrence upon which, she stated that her father-in-law (deceased) always used to say that she should go to her parents house. 4. On the aforesaid allegations, formal FIR being Muffasil P.S. Case No. 70 of 2002 dated 03.08.2002 was registered and investigation started. PW9-Sheo Shankar Rajak is the Investigating Officer of the case who after completion of the investigation, submitted challan against the accused upon which she was charged for the offence punishable under section 302 IPC and now she stands convicted and sentenced as stated herein-above. 5. The prosecution in support of the charge, has examined the following witnesses: PW1-Hati Ram Banra: He is the first informant of the case and whatever was disclosed to him initially by Dakua Mukru Banra, is stated by him on oath. He further discloses as to what was told to him by PW Sumitra Gope, daughter of the deceased and the accused himself in the presence of villagers. It is in the state of extra judicial confession. PW2-Mukru Banra: He is a witness of hearsay evidence. Whatever information he got, he supplied it to PW Hati Ram Banra. PW3-Akhilesh Gope: He is the son of the deceased and he is one who reached the place of occurrence after commission of the offence. PW4-Pan Mai Gope: She in fact is the star witness of the occurrence. She was aged 08 years at the time of occurrence. PW5-Somvari Sui and PW6-Sumitra Gope: Both are the other two daughters of the deceased but they do not happen to be the eyewitnesses of the occurrence. They stated whatever was disclosed to them by PW Pan Mai Gope. PW7-Hissi Gope: She is wife of the deceased and not a witness to the occurrence. PW8-Dr. PW5-Somvari Sui and PW6-Sumitra Gope: Both are the other two daughters of the deceased but they do not happen to be the eyewitnesses of the occurrence. They stated whatever was disclosed to them by PW Pan Mai Gope. PW7-Hissi Gope: She is wife of the deceased and not a witness to the occurrence. PW8-Dr. Priya Ranjan: He conducted autopsy on the dead body of the deceased and proved the postmortem report during trial. From the postmortem report, we find following injuries on the person of the deceased. Ante mortem injuries – On External Examination (1) One perforated wound just lateral to right eye size 1” x 1” x deep to cranial cavity (2) Abrasion over right side of front of neck. On Internal Examination (1) Brain lacerated at side of injury No.1 (2) Chest – sternum fracture at the junction of body and manubrium. Fracture of III & IV & V Ribs on right side. Chest cavity full of blood. Right Lung lacerated. Heart – lacerated Abdomen Stomach empty, bladder empty. Other viscera – NAD Cause of injury – Injury No.1 caused by Heavy sharp pointed object. Injury No.2 caused by hard blunt object such as Danda, Kunda. Injury to Chest caused by Hard heavy blunt substance. Cause of death – Shock Haemorrhage due to injury to brain, lung and heart. Cumulative effect of all the injuries are sufficient to cause death in natural course. On internal examination of the injuries, injury no. 1 is shown to have caused laceration in the brain. Fracture of 3rd, 4th and 5th ribs on the right side. Chest was also fractured. Cavity was found with full of blood and there was laceration of the right lung as well. 6. As per the opinion of the doctor, injury no. 1 was caused by sharp pointed object whereas injury no. 2 was caused by hard and blunt object such as Danda and Kunda. Injury to the chest was caused by hard heavy blunt substance. PW9-Sheo Shankar Rajak : He is the Investigating Officer of the case. 7. Heard learned counsel for both the sides and gone through the evidence minutely. 8. Mr. 2 was caused by hard and blunt object such as Danda and Kunda. Injury to the chest was caused by hard heavy blunt substance. PW9-Sheo Shankar Rajak : He is the Investigating Officer of the case. 7. Heard learned counsel for both the sides and gone through the evidence minutely. 8. Mr. Surendra Kumar Sinha, learned counsel appearing for the accused, states that the case of the prosecution is mainly hinging on the evidence of PW Pan Mai Gope, the child witness and daughter of the deceased and her evidence suffers from certain infirmities, therefore deserves to be rejected. According to the learned counsel, other evidence available on record is what was disclosed by PW Pan Mai Gope only to others and once the evidence of this child witness is found to be shaky, other evidence available on record would fall automatically. Learned counsel has made an attempt to draw certain infirmities in the statement of this child witness when read with the evidence of other witnesses i.e. two sisters of PW Pan Mai Gope or even PW Hati Ram Banra who reached the place of occurrence after getting the information from PW Mukru Banra. 9. Per Contra, learned State counsel states that there appears to be no fundamental defect in the evidence of the statement of PW Pan Mai Gope so as to doubt her as untrustworthy. He stated that this child witness appears to be true witness to the occurrence and whatever was witnessed by her, she immediately disclosed to her sister and then both of them reached the spot and there appears to be no reason for discarding the evidence of this child witness. Learned State counsel however fairly states that the other evidence available on record is more or less of corroborative nature but lends complete support to the evidence of PW Pan Mai Gope. 10. It is well settled that evidence of child witness has to be subjected to close scrutiny to rule out the possibility of tutoring. Undoubtedly, evidence of child witness can be relied upon, if the Court finds that the child witness has sufficient intelligence and understanding the obligation on oath. 10. It is well settled that evidence of child witness has to be subjected to close scrutiny to rule out the possibility of tutoring. Undoubtedly, evidence of child witness can be relied upon, if the Court finds that the child witness has sufficient intelligence and understanding the obligation on oath. In the case in hand, what we find is that before she started narrating the prosecution case as an eyewitness to the occurrence, certain question was put by the Trial Judge to find out whether she could intelligently reply to all the questions to be put to her during the trial and it is thereafter the statement of this child witness was recorded. We do find that this exercise done by the Trial Court is not in question-answer form, which normally should be, nevertheless, the Court is not deviated from that safeguard before recording the statement of a child witness on oath. 11. In Ratnasinh Dalsukhbhai Nayak versus State of Gujarat reported in (2004) 1 SCC 64 , the Apex Court, while considering the evidentiary value of testimony of child witness, observed as under: - “7. ………..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 makebelieve. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped 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.” 12. We have appreciated the evidence of PW Pan Mai Gope, the child witness, on the settled principles and find no basic weakness in it. We have appreciated the evidence of PW Pan Mai Gope, the child witness, on the settled principles and find no basic weakness in it. She appears to be the true witness to the occurrence, without there being any tinge of tutoring in it. Apart from this, evidence of other witnesses i.e. two other daughters of the deceased (real sisters of PW Pan Mai Gope) and of PW Hati Ram Banra would also assume importance. They are lending corroborative support to the child witness. 13. One more important aspect, the Court cannot loose sight of, is that whatever is stated on oath by the child witness during the trial, finds mentioned in the first information report. The police was informed of the occurrence by PW Hati Ram Banra after reaching the place of occurrence where this child witness was found to be present. It is on the disclosure of the occurrence as to how it happened, it is brought in the first information report. At that stage, there could not be any reason for anybody to tutor this witness. She stated that when she heard noise coming out of the room, she asked the accused (Bhabhi of this witness) as to what was happening in the room upon which she was informed that she (accused) was killing the snake. It is quite possible that she could make it out that her father was being assaulted in the room, but she being of a tender age, got frightened and immediately rushed to her sister Sumitra Gope who had gone to another place in Shraddh Karm and disclosed this fact to her who rushed to the house and after reaching there, saw that their father was lying dead in the room. There could not be anything more natural than what is disclosed by this child witness. We do find certain discrepancies in the evidence of the witnesses produced during trial, but when appreciated in right perspective, in our considered view, all these discrepancies are of very minor character which do not shred the basic substratum of the prosecution case as disclosed by the child witness (Pan Mai Gope). 14. We do find certain discrepancies in the evidence of the witnesses produced during trial, but when appreciated in right perspective, in our considered view, all these discrepancies are of very minor character which do not shred the basic substratum of the prosecution case as disclosed by the child witness (Pan Mai Gope). 14. We being conscious of the settled legal position that the evidence of a child witness has to be evaluated very carefully, have come to a conclusion that there is impress of truth in the evidence of PW Pan Mai Gope, therefore, we do not find any difficulty in holding that she is a true witness who had seen the accused killing her father (deceased). 15. Having believed the evidence of PW Pan Mai Gope, we do not feel necessity of entering into other aspects of the prosecution case in detail. 16. The net result now surfaces is that the conviction and sentence, as slapped upon the accused vide impugned judgement, thus deserves to be upheld. Ordered accordingly. 17. Resultantly, the appeal on hand stands dismissed.