R.N. Lal, J.@mdashOn 20.10.1981 at about mid-day Shila Kumari, a student of Class-IV of Upper Primary School in village Dhanua, Police Station Sikandra, district Munger came out of her class room hearing some gun sound. Kaushalya Kumari, the informant (P.W. 6), a student of class VIII of the Girl Middle School situated south of that Upper Primary School also came out of her class room hearing the gun sound. She was told by Shail Kumari, her younger sister, that appellant Sadhu Mahto assaulted Bhaiyaji (brother-in-law). Both ran towards the Upper Primary School from where boys and girls were running out. They saw their brother-in-law Lalo Yadav alias Binod Kumar (deceased) bleeding and running, and entering into the class room of III Standard where he fell down on the floor of the said room. Informant''s other brothers and sisters were also students of that upper primary school, namely Shila Kumari (P.W. 2), Satyendra Prasad (P.W. 3) and Aruna Devi (P.W. 4) besides Shambhu Sharan and Anita Kumari. All the appellants also carne there, Sadhu and Bijay had pistol and gun respectively and Ramautar had a leather bag containing cartridges. Appellant Triloki Mahto ordered to kill Lalo Yadav as he was still alive. Ramautar Mahto passed on the leather bag containing cartridges to Bijay Mahto and Sadhu Mahto and Bijay Mahto shot at Lalo Yadav in the school room causing his death. Sadhu and Lalo Yadav were Chachera and Mausera brothers also and they had some land dispute going on from before which was said to be the reason for his murder. Kaushalya Devi went to Sikandra Police Station with her mother Kalawati Devi (P.W. 7) and the local Chaukidar and gave her fardbayan on which the first information report was drawn up at 16 hours that, day, the place of occurrence being 11 Kms. away from the Police Station. The Police registered the case and took up investigation in. the case. The Investigating Officer (P.W. 9) visited the place of occurrence examined the witnesses and submitted charge-sheet against the appellants who were later tried by the 8th Additional District and Sessions Judge, Munger in Sessions Trial No. 829 of 1982 and they were held guilty by his judgment- dated 17th June, 1988.
2. Appellant Sadhu Mahto and Vijay Mahto in Criminal Appeal No. 388 of 1988 were convicted for the offence u/s 302 of the Indian Penal Code (hereinafter to be referred as "the Code") and were sentenced to imprisonment for life. They were also convicted for the offence u/s 148 of the Code but no separate sentence was awarded for the same. They were also tried for the offence u/s 27 of the Arms Act and were sentenced to three years'' rigorous imprisonment each. The appellants of Criminal Appeal No. 361 of 1988 were held guilty for the offence u/s 302 read with Section 149 of the Code and were sentenced to imprisonment for life. Appellant Ramautar was furtner convicted u/s 148 of the Code but no separate sentence was awarded for the same by the trying Judge. All the sentences were ordered to run concurrently. The appellants of both the appeal have come up in these two appeals against the said judgment of the learned trial court.
3. Both the appeals are being disposed of by this common judgment as they arise out of the same judgment.
4. The prosecution examined 11 P.Ws. to prove its case ; of whom P.Ws. 1 to 3 and P.W. 6 are eye-witnesses of the occurrence. P.Ws. 47 and 11 were simply tendered for cross-examination. P.W. 8 is a doctor'' who held postmortem examination on the dead body of Lalo Mahto on 20.10.1981 at 17 hours and prepared postmortem report (Ext 2) and P.W. 9 is investigating officer of this case. P.W. 10 Ram Kishore Shukla is a school teacher of that upper primary school, P.W. 5 is said to be the uncle of the eye-witnesses.
5. Before going into the evidence of these prosecution witnesses, it is to be remembered that all the eye-witnesses are child witnesses, P.W. 1 was aged 9, P.W. 2 aged 8, P.W. 3 aged 6 and P.W. 6 aged 11 on the date of occurrence. All these are Salis and Sola of the deceased. The land dispute between the deceased and Sadhu Mahto going on since long is not under challenge. The identification of the appellants also is not under challenge.
6. P.Ws. 1, 2 and 3 have stated that they heard some gun sound and came out of their classes. Other children also ran holler and skelter and so did the teachers. P.W. 6, a student of adjoining school also came out who met with P.Ws. 1, 2 and 3. P.W. 1 told them that appellant Sadhu Mahto had assaulted their Banoi (deceased) Lalo Mahto. They saw Lalo Mahto coming running from east and bleeding and he fell down in the class room of Standard III. Appellants Vijay Mahto and Sadhu Mahto arrived there with fire arms and shot at him at the orders of appellant Triloki Mahto and killed him. P.W. 6 stated in her fardbeyan (Ext. 3) and also in the court that she had heard the gun sound coming from the west of the middle school. The eye-witnesses have also stated the appellant Ramautar had handed over the leather bag containing cartridges to appellant Bijay Mahto at that time. About 5, 6 or 7 shots had been fired at the deceased by these two appellants. P.W. 10 was attached teaching in IV class at that time when he suddenly found the children making noise. He came but of the class room and saw one injured man falling down in the class room of III standard. The Headmaster was also running out and this witness also run out. He saw two persons chasing the injured but he could not recognise them. He had heard three gun shots.
7. P.W. 5 stated that while he was at his house at that time he went to the said school and found Lalo Yadav lying dead with bleeding injuries having been caused by gun shots. He was told by P.W. 6 the informant, that the appellants had killed him. According to him, there was a land dispute regarding the land of Ekram village between Sadhu and the deceased.
8. P.W. 9 is the doctor who held postmortem examination on the deadbody of Lalo Yadav on 31.10.1981. at about 9 a. m. and he found the following antemortem injuries on the dead body:
(1) One round lacerated injury on the track of the skull with charred margin size 3/4" in diameter.
(2) Round lacerated injury on the right parietal region, size 1/2" in diameter.
(3) Lacerated injury on the right side of face near the right angle of the nose with broken teeth and maxilla, size 11/2".
(4) One round lacerated injury on the right size 1/2" in diameter with charred margin.
(5) Round lacerated injury on the right side of chest below clavicle, size 1/2" in diameter.
(6). Multiple lacerated injury on the left shoulder 1/4" x 1/4" x 1/2", three in number.
(7) One round lacerated injury on the left thigh, size 1/2" in diameter with charred margin.
(8) One lacerated injury circular on the back of the left thigh, 1" x 1/2" connected with injury No. 7.
(9) Lacerated injury on the left middle finger on the tops.
He proved the post-mortem report as Ext. 2.
On dissection there was fracture of occipital parietal and sphenoid maxilla were into multiple pieces. The brain matter was lacerated. The liver and right lung were lacerated in continuity to injury No. 4. There was collection of blood and blood clots in both pleural cavities. Corks and small pillets were recovered and sealed in a separate phials. Time elapsed since death at the time of post-mortem examination was within twenty-four hours. Death in his opinion was due to skock and haemorrhage as a result of injuries mentioned above particularly skull, liver and lungs. The injuries were sufficient to cause death in the ordinary course of nature. Except injury No 9 all the injuries were caused by gun shot fire arms.
9. The doctor found the stomach and bladder empty. Injury No. 6, according to him, could be caused by pillets. Except injury Nos. 8 and 9 all the injuries were injuries of entrance. Injury No. 9 could be caused by fall. Except injury No. 6, according to him, all the injuries were simple. The injuries had been caused, according to him, within 24 hrs of the post-mortem examination. According to this doctor about six gun shot injuries were there and injury Nos. 1, 2, 3, 4, and 7 had charred margins which show that I he injuries had been caused from a close range. Corks and small pillets had been recovered from the injuries. According to this witness injury Nos. 1, 2 and 3 were simple. It is to be noted that these injuries are fractures, different lobes of the skull, teeth and maxilla and such injuries can never be termed as simple. Perhaps, doctor Dharamraj Rai called such injuries simple either by his ignorance of medical jurisprudence or was gained over by the defence, and he gave a wrong opinion contrary to the medical science regarding such injuries. However, the injuries found by him are already noted in his report showing six or seven gun shot injuries fired from a close range causing charring marks and even corks and pillets intruded into the body. The injuries were caused within 24 hours. So the injuries fit in the prosecution story as given by the eye-witnesses.
10. P.W. 9 is the Investigating Officer who recorded the fardbeyan of the informant on 20.10.1981 at the Police Station (Ext. 3) and went to the place of occurrence in Dhanama Primary School where he found the dead body of Lalo Mahto alias Birendra Kumar lying there in the class room of standard III. He prepared inquest report (Ext. 4). The school had two rooms and the eastern room was the place of occurrence. There was a Harijan Basti nearby. He also found another middle school south of it situated at a distance of about 150 feet. There was hut east to the said upper primary school nearby and he found copious blood fallen in the school room (place of occurrence) and he also found a trail of blood, from this hut to school room. He received the post-mortem report and examined the prosecution witnesses and thereafter submitted charge-sheet in the case.
11. P.W. 9 further stated that he had examined P.W. 10 and P.W. 11. The school was not closed that day. He did not examine any of the Harijans having houses there. He did not say that any blood or blood stained earth was sent to the chemical examiner. According to him P.W. 1 had not told him that when she heard cries ''Bachao'' ''Bachao'' she ran towards the middle school and P.W. 6 was met in the way. She did not tell the investigating officer that the appellants. Triloki, Dhirendra, Virendra and Ramautar were there along with Sadho and Vijay, She did not tell the investigating officer that Ramautar had a leather bag or he gave any cartridge to Vijay or that Triloki had killed. P.W. 2 did not tell him that Birendra and Ramautar were following the deceased. She also did not say that Ramautar had any leather bag with him or that he gave any cartridge to any one else. P.W. 6 did not tell him that the deceased entered the class room and fell down.
12. The body of Lalo Mahto was found in the pool of blood in the class of III standard in that upper primary school when the investigating officer reached there. The investigating officer had found trail of blood from the class room to the hut situated on the east of the school. The post-mortem report shows six or seven grievous gun shot injuries on the deceased caused on 20.10.1981 between 9 to 12 a.m. The school was open on that day. P.W. 10 was a teacher of that school who is an independent witness. He stated that he saw two persons chasing the deceased. This supports the story given by P.Ws. 1 to 3 that the deceased was chased by Sadhu and Bijay and who shot at him fatally in the class room. Thus, the time of occurrence, the place of occurrence and killing by gun shots at that hour by appellants Sadhu and Vijay are all proved by the testimony of P.Ws. 8, 9 and 10 who are all independent witnesses and corroborated the story as given out by P.Ws. 1, 2, 3, and 6, who are child witnesses.
13. Mr. Sidheshwar Singh, learned Counsel for the defence argued that the eye witnesses are all child witnesses aged between 6 to 11 and they are ''dangerous'' witnesses of tender age and their testimony should not be accepted. Further their veracity was not tested by the court ; rather P.W. 3 stated that she did not understand the meaning of oath and their such testimonies are not acceptable according to law. Though it is an established principle that child witnesses are "dangerous witnesses" as they are pliable and liable to be influenced easily due to their tender age and their evidence can be easily shaked and moulded but it is 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 such a child witness. It cannot be laid down as a hard and fast rule that each and every child witness must without discretion be discredited as untrustworthy ; rather it is to be seen how stands the test of cross-examination and how far it fits into the rest of evidence and circumstances of the case. Hence, it is sound rule of prudence and not of law that corroboration of the child witness must be looked into and such evidence can be accepted after proper care and examination. A child witness can be relied upon whose testimony is consistent and corroborated.
14. Mr. A.K. Thakur, learned Counsel for the informant placed reliance on the case of
15. P.Ws. 1, 2 and 3 were present in the school. They had run out hearing the gun sound in the class room of III standard where the victim had fallen down. These material and vital facts are supported by P.Ws. 10 and 11. These witnesses were attending their class at that hour in that school and so they were natural witnesses and their testimonies are full supported by the evidence of P.Ws. 8, 9 and 10 as discussed above. As such their testimony cannot be discarded.
16. The learned defence counsel further submitted that there was enmity due to land dispute between Sadhu and Lalo Mahto who were cousins, But these eye witnesses are the common relations of both the parties. Those witnesses had no enmity with Sadhu or Vijay even though those appellants had enmity with the deceassed. It had been said that Lalo and appellant Sadhu were first cousins both from the maternal and also troni the paternal side. Thus, enmity has little to do in this case ; rather Sadhu might have acted out of enmity in the way given above. It was submitted that there are some contradictions in the testimony of P.W. 6 and other eye-witnesses but the only contradiction pointed out is that according to the fardbeyan P.W. 6 heard the cries of ''father'' ''father'' raised by the deceased, who entered in the class room and fell down, whereas, she deposed in the court that she heard the cries of Lalo raising ''father'' ''father'', ''save'', ''save''. She saw Lalo fallen in the class room in the pool of blood and Vijay and Sadhu reached there and fired at him. I think, this contradiction is a minor contradiction. Moreover, this witness had deposed in the court after 5 years of the occurrence. As such it hardly hits the story materially.
17. According to P.W. 1 the teachers were teaching in their classes. According to P.W. 10 he was teaching in the class room when he heard the gun sound. He came out and saw two persons whom he could not identify, chasing the deceased towards the class room. As he left the school he heard 3 gun fires coming from the P.O. room which again fits into the story as given by P.Ws. 1, 2 and 3 that Lalo was shot dead by Sadhu and Vijay.
18. P.W. 11 is Headmaster of the school who was simply tendered for cross-examination. It has been stated that the child witnesses are all interested witnesses and so they should not be believed. Here again it is only an act of prudence to find corroboration of the story as given out by the interested witnesses but the testimony of interested witnesses cannot be rejected outright. The Court has only to be cautious and has to see if such a story is corroborated by another evidence available on record. As regards corroboration, sufficient corroboration has already been found out and discussed above as given by P.Ws. 8, 9 and 10 and the same may not be repeated again.
19. Admittedly, the assailants of the deceased were Sadhu and Vijay both. Appellant Triloki is said to be the order giver and Ramautar is said to be carrying a leather bag and passing on cartridges to Vijay, but P.W. 9 the Investigating Officer has already denied that at the earliest stage such statements were not made to him by the eye-witnesses ; rather he stated that it was not told that the appellants of Criminal Appeal No. 361 of 1988 were with Sadhu and Vijay in carrying out the murder. Further P.W. 10, the school teacher, who had seen the deceased coming towards the school being chased by two persons whom he could not indentify, stated that they ran towards the upper primary school and later he heard 3 gun sounds. This goes to show that besides Sadhu and Vijay none else was there when the deceased was chased and shot dead by those appeallauts. Other appellants arrived there a bit later. In that view of the matter I do not find the complicity of the appellants of Criminal Appeal No. 3ol of 1988 for the commission of this offence. At best there is no sufficient evidence to hold them guilty for this crime.
20. In view of the facts and circumstances discussed above I find that the prosecution has proved its story well as against appellants of Criminal Appeal No. 388 of 1988. Accordingly Criminal Appeal No. 388 of 1988 does not warrant any interference and is hereby dismissed.
21. In the result Criminal Appeal No. 361 of 1988 is allowed and the impugned judgment so far it relates to appellants Ramautar Mahto Dhirendra Mahto, Birendra Mahto and Triloki Mahto is hereby set aside and they are acquitted. They are released from their bail bonds, if any, whereas Criminal Appeal No. 388 of 1988 stands dismissed.
S.H.S. Abidi, J.
I agree.
