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2023 DIGILAW 322 (CHH)

Sonadai, W/o Sita Ram v. State of Chhattisgarh

2023-07-17

RADHAKISHAN AGRAWAL, SANJAY K.AGRAWAL

body2023
JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 22.01.2015 passed by the 3rd Additional Sessions Judge, Bastar, Jagdalpur, C.G. in Sessions Trial No.115/2014, by which the appellant herein has been convicted for the offence under Section 302 of Indian Penal Code (for short, 'IPC') and sentenced for life imprisonment with fine of Rs.200/-, in default of payment of fine additional rigorous imprisonment for one month. 2. Case of the prosecution, in nutshell, is that on 10.08.2014 at about 6:30 pm at village Adawaal, Kusumpal, appellant herein assaulted her husband- Sitaram (hereinafter called as 'deceased) with axe as a result of which, he sustained grievous injuries on his body and died and thereby committed the aforesaid offence. Further, case of the prosecution is that appellant and deceased were wife and husband and they used to live separately as there was some serious dispute between them but deceased used to give ration (rice) etc. to appellant and that on 10.08.2014 at about 6:00 pm, when deceased refused to give ration (rice) to appellant, quarrel took place between them, upon which appellant abused the deceased filthily, pushed him inside the room, locked the door from inside and assaulted him with axe, by which deceased suffered 22-24 grievous injuries on the various parts of his body and died instantaneously. The incident was witnessed by PW-1 Limbu @ Laxman, son of appellant and deceased, aged about 13 years and he has informed the said incident to PW-2 Dinanath where PW-4 Smt. Hemvati was present, then they came to spot and saw the dead body of deceased. Thereafter, the matter was reported to the police, pursuant to which merg intimations were recorded vide Exs. P-9 and P-11 and FIR Ex.P-5 was registered against the appellant. Inquest proceeding was conducted vide Ex.P-03 and the dead body was sent for postmortem examination which was conducted by PW-9 Dr. Pawan Tekade, who has proved the postmortem report vide Ex.P-28. According to postmortem report, cause of death of the deceased was shock and haemorrhage due to multiple injuries on his head, neck and trunk and the death was homicidal in nature. Memorandum statement of appellant (Ex.P-13) was recorded, pursuant to which axe was recovered from the possession of the appellant. Pawan Tekade, who has proved the postmortem report vide Ex.P-28. According to postmortem report, cause of death of the deceased was shock and haemorrhage due to multiple injuries on his head, neck and trunk and the death was homicidal in nature. Memorandum statement of appellant (Ex.P-13) was recorded, pursuant to which axe was recovered from the possession of the appellant. Seized article were sent to FSL for chemical examination but as per FSL report, no blood or human blood has been found on the seized axe. Query report has also been obtained vide Ex.P- 29 and as per the said report, injuries found on the body of the deceased could have been caused by the seized axe. Appellant was arrested on 10.08.2014 vide Ex.P-05. 3. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured her guilt and entered into defence by stating that she has not committed the offence. 4. In order to bring home the offence, prosecution has examined as many as 09 witnesses and brought on record 30 documents. The defence has examined none and not exhibited any document. 5. The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Section 302 of IPC and sentenced as above against which the present appeal has been preferred. 6. Learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting and sentencing the appellant for the offence under Section 302 of IPC as the prosecution has failed to prove the offence beyond reasonable doubt. He would further submit that the trial Court has committed grave legal error in relying upon the sole testimony of child witness Limbu @ Laxman (PW-1), without further corroboration, which is unsafe. He would also submit that though allegedly axe has been seized from the possession of the appellant but as per FSL report, no blood or human blood has been found on the seized axe, therefore, recovery of the weapon of offence is of no use. As such, the appeal deserves to be allowed and the appellant be acquitted of the charge levelled against her. 7. As such, the appeal deserves to be allowed and the appellant be acquitted of the charge levelled against her. 7. Per contra, learned State counsel would support the impugned judgment and submit that learned trial Court has rightly convicted and sentenced the appellant for offence punishable under Section 302 of IPC. He would further submit that PW-1 Limbu @ Laxman, son of appellant and deceased, is a child witness to the incident who has seen the incident from window and thereafter, immediately informed the incident to PW-2 Dinanath and PW-4 Smt. Hemvati. He would also submit that even though the weapon of the offence is not found to contain human blood but in view of the direct evidence of PW-1, PW-2 and PW-4 connecting the appellant in the crime in question, the appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first question for consideration would be whether the death of the deceased was homicidal in nature, which has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P-28) proved by Dr. Pawan Tekade (PW-9), which is a finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding. 10. Now, the next question is whether the appellant is the author of the crime in question, which has been answered by the trial Court in affirmative, relying upon the statements of PW-1 Limbu @ Laxman, PW-2 Dinanath and PW-4 Smt. Hemvati. It is an admitted position on record that the appellant and deceased were wife and husband and were residing separately and despite that deceased used to provide ration (rice) to the appellant for her livelihood but on the date of incident, when deceased refused to give ration (rice) to appellant, then appellant dragged her husband-deceased inside the house, started quarreling with the deceased and assaulted him with axe, by which he succumbed to the grievous injuries, which is apparent from the statement of PW- 1 Limbu @ Laxman, who has seen the incident from window and immediately informed the incident to PW-2 Dinanath where PW-4 Smt. Hemvati was also present. PW-1 Limbu @ Laxman has been subjected to cross-examination but he has remained firm while supporting the case of the prosecution. Though he has stated that there was some dispute between his father and mother and they used to consume liquor, but he has remained firm that he has seen the incident from window and immediately informed the same to PW-2 Dinanath and PW-4 Smt. Hemvati. 11. PW-2 Dinanath has stated in his deposition that PW-1 Limbu @ Laxman came to his shop and informed that his mother-appellant was assaulting his father-deceased with axe and requested him to save his life. Thereafter, he along with PW-1 rushed to the spot and saw the deceased found dead and the appellant was found standing beside the injured body of deceased. Similarly, PW-4 Smt. Hemvati has stated the same facts and supported the case of the prosecution. These witnesses have been subjected to some extent of cross-examination but nothing has come out to hold that PW-1 has not seen the incident and not informed to PW-2 and PW-4. As such, from the statements of PW-1 Limbu @ Laxman, PW-2 Dinanath and PW-4 Smt. Hemvati, it is quite vivid that it was appellant, who on the date of incident, quarreled with the deceased and caused 24 grievous injuries by assaulting him with axe, resulting into his death, which has been proved by PW-09 Dr. Pawan Tekade. As such, it is clearly established that appellant has caused the death of deceased- Sitaram. Apart from this, pursuant to the memorandum of the appellant, weapon of the offence i.e. axe has been seized though on which no blood or human blood has been found but in view of the direct evidence of PW-1 Limbu @ Laxman, PW-2 Dinanath and PW-4 Smt. Hemvati, even if the weapon of the offence is not stained with blood or human blood, it would have no adverse impact on the finding of trial Court and to the case of the prosecution. 12. The submission made on behalf of the appellant is, testimony of PW-1 Limbu @ Laxman being the child witness, could not have been relied upon by the trial Court as he is not the competent witness. 12. The submission made on behalf of the appellant is, testimony of PW-1 Limbu @ Laxman being the child witness, could not have been relied upon by the trial Court as he is not the competent witness. The said submission deserves to be rejected in view of the decision of the Supreme Court rendered in the matter of State of Karnataka v. Shantappa Madivalappa Galapuji & others, (2009) 12 SCC 731 in which their Lordships held as under: “The Indian Evidence Act, 1872 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. 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 }. In Dattu Ramrao Sakhare v. State of Maharashtra [ (1997) 5 SCC 341 ] it was held as follows : (SCC p.343, para 5) : '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 given 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.'” 13. 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.'” 13. The next submission raised on behalf of the appellant is that PW-1 Limbu @ Laxman was aged about 13 years on the date of examination before the Court, but he was not administered oath by trial Court as per proviso to Section 4(1) of the Oaths Act, 1969, therefore, his statement is inadmissible in evidence. Section 4(1) of the Oaths Act, 1969 provides as under:- “4. Oaths or affirmations to be made by witnesses, interpreters and jurors- (1) Oaths or affirmations shall be made by the following persons, namely:- (a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provision of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. (2) …...........” 14. However, Section 7 of the Oaths Act, 1969 deals with effect of omission to take oath and states as under:- “7. (2) …...........” 14. However, Section 7 of the Oaths Act, 1969 deals with effect of omission to take oath and states as under:- “7. Proceedings and evidence not invalidated by omission of oath or irregularity.- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.” 15. A careful perusal of Section 7 of the Oaths Act, 1969 would show that even an omission to take the oath does not affect the admissibility of the evidence and it shall not invalidate any proceeding or render inadmissible any such evidence. 16. The Supreme Court in the matter of Rameshwar v. The State of Rajasthan, AIR (39) 1952 SC 54 has held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency, as the Oaths Act does not deal with the competency and it has been held while dealing with Sections 5 & 13 of the Oaths Act, 1873, in paras 7, 8 & 9 as under:- “7. The proviso quoted above must be read along with Section 118 of the Evidence Act and Section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail. 8. Now the Oaths Act does not deal with competency. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that Section 118 must prevail. 8. Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of Section 118 these matters only touch credibility and not admissibility. In my opinion, Section 13 of the Oaths Act places this beyond doubt. It states— "No omission to take any oath or make any affirmation......... and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever.......... " 9. Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is competent. 17. In view of the aforesaid legal principles laid down by the Supreme Court in the matter of Rameshwar (supra) and taking into consideration the provisions contained in Section 7 of the Oaths Act, 1969, non-administration of oath to PW-1 Limbu @ Laxman would not make his statement invalid & inadmissible. Objection on behalf of the appellant's counsel in this regard is hereby rejected. 18. The next submission that has been raised on behalf of the appellant that the weapon of the offence seized from the possession of the appellant i.e. axe was not found to be stained with human blood, also deserves to be rejected, as in this case, there is direct evidence in the form of statement of PW-1 Limbu @ Laxman who has seen the incident and immediately reported the matter to PW-2 Dinanath where PW-4 Smt. Hemvati was also present. Therefore, in view of the presence and availability of the direct evidence, the circumstantial evidence, even if it is not proved, would not weaken the prosecution case. 19. On the basis of above discussion, we do not find any illegality or infirmity in the impugned judgment of the trial Court convicting and sentencing the appellant under Section 302 of Indian Penal Code. 20. In the result, the appeal being without any substance is liable to be dismissed and is, accordingly dismissed.