@JUDGMENTTAG-ORDER
1. The sole appellant in this case stands convicted for the offence u/s 302 of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for life vide judgment and order dated 24.5.1996 and 25.5.1996 respectively, passed by the learned Additional Sessions Judge,
Gumla, in Sessions Trial No. 40 of 1995.
2. The aforesaid conviction arose out of the following facts. The prosecution story, as per the fardbeyan (Ext. 3) of Kalawati Devi (PW 1) is as
follows. The informant Kalawati Devi gave her fardbeyan on 15.5.1993 before the Officer-in-Charge of Sisai Police Station, on the road in front
of the house of Akhil Mohan Sao, stating therein, inter alia, that on that day at about 2.00 p.m. in the afternoon she along with Urmila Devi
(deceased), wife of late Sadanand Thakur, and her daughter Sarita Kumari (PW 7), aged about 7 years, had gone to bring water from the well of
Raghu Sao, which is situated at the south of the village. After taking water, all the three of them were returning to their house. Sarita Kumari was in
the front, she was in middle and behind the informant Urmila Devi (deceased) was going. It is stated that as they reached near the paddy field of
Upendra Sao, she saw that Jhunka Sao son of Chita Sao of Village Bargaon came from the front and suddenly started giving chhura blow to
Urmila Devi. Urmila Devi cried and fell down on the ground. When she fell down, Jhunka Sao again gave three or four chhura blows on her
person. Seeing this, she and Sarita Kumari (PW 7) raised hulla and ran towards their house. Seeing this, Jhunka Sao also ran towards west of the
road. Having seen accused running away, the informant and Sarita Kumari (PW 7) came near the injured Urmila Kumari and found that she had
got injuries on her chest, stomach and face as also head and she is dead. The cause of the occurrence is that Urmila Devi had lodged a case
against Akhil Mohan Sao and he is in jail and Jhunka Sao is the nephew of Akhil Mohan Sao and due to the said enmity he murdered her. On the
basis of the aforesaid fardbeyan a formal First Information Report (Ext. 4) was lodged and police started investigation.
3. It appears that during the course of investigation, inquest report (Ext. 5) was also prepared and the post-mortem examination on the dead body
of Urmila Devi (deceased) was also conducted by Dr. Mani Bhushan Prasad (PW 6), who proved the post-mortem report (Ext. 1) and it also
transpired that during the course of investigation statement of PW 7 was recorded u/s 164 of the Code of Criminal Procedure, which has been
proved by Achyutanand Upadhyaya (PW 9), Judicial Magistrate, who recorded the same.
4. After investigation, police submitted charge-sheet and the appellant pleaded not guilty of the charge u/s 302 of the Indian Penal Code, which
was levelled against him and claimed to be tried.
5. The defence version of the case, as per the trend of the cross-examination and the statements, made by the appellant in his statement u/s 313 Cr
PC is that he does not know as to why he has been implicated and at the relevant time he was hearing Ramayan in the neighbourhood and more
than that he does not know anything.
6. In support of prosecution case, altogether nine witnesses have been examined and out of those nine witnesses, all the witnesses, except Sarita
Kumari (PW 7), the doctor (PW 6), who has conducted the postmortem examination, and the learned Magistrate (PW 9), who has recorded the
statement of P.W. Sarita Kumari (PW 7), have been declared hostile whereas Yadu Mahli (PW 3) has been tendered.
7. The following points have been argued in this case on behalf of the appellant :
(i) Sarita Kumari (PW 7), who is a child witness, appears to be a tutored one and, as such, her evidence can not be relied on.
(ii) On the basis of the sole testimony of PW 7, conviction and sentence can not be upheld.
(iii) When there is discrepancies in the ocular evidence and the medical evidence, the conviction can not be sustained .
(iv) Station diary, which was the earliest version of the case, received by the police, if not produced, then the whole prosecution case becomes
doubtful.
8. Now we will deal with the aforesaid arguments one by one. Evidence of PW 7, who is a child witness, according to the defence, she is tutored
one and, as such, her evidence can not be relied on. In support of his contention, learned counsel for the appellant relied on a decision of the
Hon''ble Supreme Court in the case of Arbind Singh and Krishna Nandan Singh and Others Vs. State of Bihar, while the learned counsel for the
State relied on the decision of the Apex Court in the case of Anil Kumar Puri Vs. Presiding Officer, Labour Court, Chandigarh and Another, .
According to the learned counsel for the prosecution, there is no bar on placing reliance on a sole testimony of a child witness, but it is to be
excepted with caution. The case relied upon by the learned counsel for the appellant differs on many substantial facts from the facts of this case. In
the case, relied upon by the learned counsel for the appellant, the child witness was only four years old. The occurrence had taken place at night
hours and she allegedly had woken up on the quarrel of the mother and father. When the police tried to take her statement at the earliest, she was
always found weeping and after many days her, statement u/s 164 of the Code of Criminal Procedure was recorded and in that evidence she had
not stated that her mother had been hanged. But in the Court she stated that her mother had been hanged and thus, she had developed the story
whatever she had said in her statement u/s 164 of the Code of Criminal Procedure.
9. In the instant case, as per the fardbeyan, the child witness (PW 7) was herself going along with the informant of the case. The occurrence had
taken place in day hours at about 2.00 p.m. in broad day light and in the fardbeyan her name had appeared as a witness. The statement of this
witness was recorded on that very day by the police officer in paragraph No. 6 of the case diary and her statement before the Magistrate u/s 164
of the Code of Criminal Procedure was recorded on 2.7.1993 i.e. after two months. Ext. 2 further shows that the learned Magistrate, who
recorded the statement of PW 7, has given a note, which is as follows: ""SAKSHI KI UMRA KAM HONE KE PASCHAT BHI WAH
PRASHNO KO SAMAJH KAR SAHI UTTAR DENE ME SAMARTH HAI"". The witness was a student of Class-Ill at that time whereas in
the case, relied upon, the child witness was only a child witness, not at all reading in any school, by virtue of her age. When the earlier statement of
this witness was recorded u/s 164 of the Code of Criminal Procedure, she was reading in the Village-Bargaon i.e. in the village, where the
occurrence had taken place, though during her evidence, she came in the Court from Village-Marda, where she is living with her grand-father
(Nana). When her statement was recorded before the Court, the Court gave the following certificate. The witness understands questions and
answers properly. She is a fit minor to depose and she reads out the oath properly. Thus, it can not be said that this witness for the reasons of her
age, was not understanding the questions either at the time of statement u/s 164, Cr PC or at the time of recording of her evidence during trial. The
aforesaid facts distinguish the case of this child witness from the child witness, who was considered in the case relied upon by the learned counsel
for the appellant. Thus, we can hold that this child witness was competent witness to the Court at all the relevant times. The question now is
whether she is a tutored one or not. It may be stated here that the informant, who is the own aunt of Santa Kumari (PW 7) has become hostile. But
when the fardbeyan was recorded, she has given her L.T.I, thereon in the village itself and at that time, the name of this witness came in the
fardbeyan itself. It has also come in the evidence on this witness (PW 7) that her father had earlier been killed and consequently she was living in
her paternal house at the relevant time. Even if it is found that for some reasons, the informant became hostile, then the question of tutoring this eye-
witness on the part of the informant and other prosecution witnesses does not arise. Because if they became hostile for the reasons best known to
them, then in that circumstance one would naturally expect that they would have tutored this witness also to become hostile. But it is not the case.
When her statement was recorded u/s 164 of the Code of Criminal Procedure, she was living in her paternal house, presumably in the company of
the witnesses. So whatever statement was recorded, it was recorded faithfully because the witness has herself said that Daroga has said only this
much that ''you will say this much, which she have seen''. Thus the Investigating Officer also has not tried to influence her to give a particular
statement before the Magistrate. After the death of her mother, it appears from her evidence, she was also threatened by some persons of the
village and she has said that it were the Baniyas of the village, who threatened her to do away with her life. It appears, therefore, that a girl who has
lost her father earlier and subsequently her mother also, was being threatened in the village. Therefore, it appears very reasonable that the threats
was due to the fact that she was the eye-witness of the occurrence. When other witness had been gained over, then it is quite natural that she was
being threatened so that she may also be gained over. Consequently in such a situation, it appears that she came to her maternal house, because
the bad relations had developed as per the evidence of this witness. We now further examine the fact that when she came from the custody of her
maternal house to the Court, was there any chance of her being tutored by the prosecution. At that stage as she has fully corroborated the
statement what she had made at the earliest i.e. before the police as also u/s 164 of the Code of Criminal Procedure and did not make any
development. Therefore, it appears that whatever she stated before the Court, she confirms to her original statements and, thus, in our opinion, it
appears to us that she has hot at all been tutored.
10. Therefore, distinguishing the present case from the case, relied upon by the learned counsel for the appellant, we hold that this witness, though
a child witness, in absence of any positive or substantial proof of being tutored, is a dependable witness.
11. In this case, learned counsel for the appellant has argued that it is a case of serious nature of heinous murder and, therefore, the Court should
not have relied upon the uncorroborated testimony of a child witness and he placed reliance on a decision of the Apex Court in the case, of Badri
Vs. State of Rajasthan, as also in the case of Ramji Surjya Padvi and Another Vs. State of Maharashtra, .
12. There are cases where the only witness is a child witness and no other witness is cited in the First Information Report. The case on which
reliance has been placed, the sole child witness had simply seen the accused coming with a single barrel gun and without verifying the effect of that
firing, he had run away and reported that his brother has been killed. Therefore, it was held by their Lordships that in absence of any other
evidence, this witness could not have been relied upon, because he had jumped to the conclusion, without seeing the entire occurrence. Moreover
in that case, there was no other witness on the fact. In the instant case, there is no birth of the evidence. PW 1 was the eye witness of the
occurrence. But for the reasons, best known to her, she became hostile. If there are many eye witnesses alleged in the First Information Report
and particularly if the maker of the First Information Report who herself/himself is an eye-witness, subsequently becomes hostile, then in that
circumstance it can not be said that the only eye witness of the occurrence has become hostile. It is another fact that in the Court she has been the
residual eyewitness. Therefore, it is not the case that only eye-witness had seen the occurrence, as per the fardbeyan also. It distinguishes the
present case from those cases, where the only child or elder witness is said and taken as eye-witness, even in the fardbeyan.
13. We also find that the statement of PW 7 u/s 164, Cr PC is very consistent and there has been no development. Consequently her statement
remain unpolluted even during the test of cross-examination.
14. But before giving a final verdit on this aspect, we still go to examine whether the evidence of PW 7 has been corroborated by other
circumstantial evidence or not. The Investigating Officer has been examined in this case as PW 8. He found some broken pitch at the place of
occurrence as also some blood stained soil, which he seized in presence of the witnesses. This witness (PW 7) has said that when she was coming
along with her aunt, her aunt was keeping a pitcher on her head and that has broken. In paragraph No. 5, she says that when she was coming after
taking water at the time of occurrence the pitcher on her head had fallen though she vide paragraph No. 7 has said that pitcher, which was being
carried by her aunt had not fallen and broken. She has also said that on the head of her mother and aunt, there were earthen pitchers, in which they
were carrying water, vide paragraph No. 1. The Investigating Officer also found some broken pieces of earthen pitcher. Thus, it corroborated the
statement of this witness.
15. It was also argued on behalf of the learned counsel for the appellant that when there is discrepancies in the ocular evidence and the medical
evidence, then it will not be safe to rely on the oral evidence of the witness. He relied on a decision of the Supreme Court in the case of Amar
Singh v. The State of Punjab, reported in 1987 ECC 721 . In that case different type of weapons were allegedly used in assaulting the deceased
but the nature of the injuries, found on the person of the deceased, were quite different in nature and could not be attributed to the weapons alleged
to have been used and, therefore, there was a big discrepancy between the oral evidence and the medical evidence. In this case, the discrepancy is
only to the extent of number of wounds. The child witness says that dager was used. The doctor says that such injuries can be caused by chhura or
knife and out of all the nine injuries, that have been found on the person of the deceased, five are stab wounds and rest four are incised. The doctor
has not distinguished the stab wounds and incised wounds rather has said that the nature of weapon may be chhura or knife. Nothing has been
brought in the cross-examination of the doctor to show that a different weapon was used for causing the different type of injuries. Thus, it is
conclusively proved that all the injuries were caused by knife or chhura. The question then only remains that when the witness says that three or
four chhura blows were given then wherefrom nine injuries were found. The witness has also said that chhura blows were given indiscriminately.
When such a ghastly dagger (chhura) blows are being given, it is just possible that one can not come to the exact number of blows and if that is
said by any person that simply means that he is a person not to be believed upon. So this discrepancy in the number of injuries, in our opinion, is
not such a big discripancy so as to make the oral evidence disbelievable rather we find that this medical evidence also corroborates the evidence of
PW 7.
16. Therefore, when we consider that this witness though a child witness, has stood the test of cross-examination and her statement has been
corroborated by the statement, recorded u/s 164 Cr PC by the objective evidence of the Investigating Officer at the place of occurrence and by
the medical evidence, then we find no reason to disbelieve this child witness.
17. The next question that was raised before us is that there is evidence, in the evidence of PW 7 herself that Deo Narain Thakur had gone to the
Police Station and, therefore, in that circumstance the non-production of Sanha entry shows that the prosecution has tried to suppress the first
information that had been received. According to the learned counsel for the appellant, prosecution case becomes doubtful and as such, adverse
inference is required to be drawn. He relied in this context on a decision of Patna High Court, in the case of Harinandan Singh v. The State of
Bihar, reported in 1970 PLJR 172. In that case one person was sent to Police Station by the Mukhiya and that person was coming in a bus along
with the police to the place of occurrence. Then naturally inference was drawn that when the person had gone to the Police Station and from there
he was coming to the P.S., then in such a situation he must have given some information to the police, which must have been recorded in a routine
manner as station diary entry and, therefore, it was a necessity to find out the first version of the case, which was received by the police. Here in
this case, though this witness says that Deo Narain Thakur had gone to the Police Station on a cycle and thereafter, the police had arrived after half
an hour of his arrival. Thus, there is no positive evidence that Deo Narain Thakur actually reached the police station or not or made any statement
there at the police station.
18. Learned counsel for the appellant wants to draw such an inference because of the fact that since the said Deo Narain Thakur is the cousin
brother of Santa Kumari (PW 7), therefore he must have reached the police station, as the police has come to the place of occurrence just after
half an hour. Therefore, the non-production of Sanha diary entry is a fatal circumstances in this case. He went to the extent by (sic) saying that if
this view is not taken then it may be presumed that some crow went to the police station, whispered something in the ear of the police officer and
thereafter, the police reached at the place of occurrence. Though he said it jockingly, but even it is presumed that a crow can speak, then also that
will be a rumour, received by a police officer. In this modern age, many things are received by many means. The Investigation Officer himself has
said that he received a rumour, made a recording in the station diary and then he proceeded to the village. He has received a rumour that in a
particular village a lady has been killed. Therefore, the circumstances of this case are quite distinguishable from the circumstances of the case, relied
upon by the learned counsel for the appellant, for the simple reason that in the said case there was a positive evidence that the person, who was
sent to the Police Station, had reached the police station and was coming along with the police and this fact is wanting in this case. Therefore, on
this score alone, we are not prepared to accept the contention of the learned counsel for the appellant that the first version of the occurrence has
been suppressed. This argument is, therefore, rejected.
19. The last but not the least, learned counsel for the appellant advanced an argument that though there is evidence of PW 7 that her father had
been killed allegedly by Akhil Mohan Sao and this appellant is the bhagina of said Akhil Mohan Sao and her mother was a witness in that case
and, therefore, she has been killed by this appellant and this important evidence has not been brought to the notice of the accused, when he was
examined u/s 313 of the Code of Criminal Procedure and consequently in view of the decision of the Apex Court in the case of Ghulam Din Buch
etc. etc. Vs. State of Jammu and Kashmir, the conviction can not be upheld.
20. The question that was not asked by the learned trial Court from the appellant in his examination u/s 313 of the Code of Criminal Procedure,
relates to the victim being an eye witness of the murder of her husband and, therefore, it was the motive for cause the death of the deceased. True
it is that it was a serious lapses on the part of the learned trial Court, but while appreciating the judgment, we have relied more on the ocular
evidence in this case and when the ocular evidence has established this case, then motive is not very important to be proved. In this appeal we
have taken care not to base our findings on this evidence. Thus, this evidence against the appellant practically stands excluded and it has not been
used against him. If it has not been used against him then the compliance of Section 313 of the Code of Criminal Procedure is complete, because
without drawing the attention of the accused towards an evidence that had come against him, that part of the evidence can not be used. The
learned trial Court though in paragraph No. 8 of the judgment has stated this fact but in the concluding portion of the judgment he has not stated
that this evidence is one of the grounds for conviction of the appellant. Thus, it means that he did not base the conviction on this evidence. In such a
situation, the learned trial Court also excluded it from the evidence to base his conviction and, as such, if this question was not put, no prejudice
has been caused to the appellant and consequently it is found that if the question was not asked with regard to a particular evidence and the
evidence was also not used as the basis of conviction or one of the basis of the conviction, then in that situation, the decisions referred to above did
not apply in the facts and circumstances of this case. Consequently, we find that there is no merit in this appeal and, accordingly, the conviction and
sentence, passed against the appellant, are hereby confirmed and the appeal is, thus, dismissed.