2004 ALL MR (Cri) 1226
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.B. VAGYANI AND D.S. ZOTING, JJ.
Keru Kondiba Nitnaware Vs. State Of Maharashtra
Criminal Appeal No.58 of 1997,Criminal Appeal Old No.274 of 1984
3rd March, 2004
Petitioner Counsel: Shri. S. B. AGRAWAL
Respondent Counsel: Shri. A. V. GORHE
Evidence Act (1872), Ss.3, 118 - Appreciation of evidence - Child witness - Corroboration - Although legally there is no bar to accept uncorroborated testimony of a child witness, yet prudence requires that court should not act on the uncorroborated evidence of a child whether sworn or unsworn - Mere absence of an oath or affirmation shall not render inadmissible any evidence given by such a child witness nor affix obligation of a witness to state the truth.
Judge has to examine evidence of a child witness very carefully and cautiously while assessing his competency and credibility. As regards competency of child witness, understanding is thus under Section 118 of the Indian Evidence Act is sole test of competency. In order to ascertain whether child is competent, although there is no provision to have a preliminary examination, such a course is desirable and should be resorted to because it offers an opportunity to the court to assess mental and intellectual capacity of child witness. Capacity of a child witness to understand should not be confused with his incapability in understanding nature of oath or sanctity of oath. Because child may understand his duty to speak the truth, but he may not understand the nature of oath or affirmation. But in any such case, absence of an oath or affirmation shall not render inadmissible any evidence given by such a child witness nor affix obligation of a witness to state the truth. Thus, if a child witness is found to be incapable of understanding the obligation of such an oath or affirmation he may be examined without an oath or affirmation provided he is found to be competent witness.
Although legally there is no bar to accept uncorroborated testimony of a child witness, yet prudence requires that Court should not act on the uncorroborated evidence of a child whether sworn or unsworn. AIR 1952 SC 54 - Followed. [Para 17]
Rameshwar Kalyan Singh Vs. State of Rajasthan, A.I.R. 1952 SC 54 [Para 16,17]
Mohamed Sugal Esa Mamasan Rer Alalah Vs. The King, A.I.R. 1946 Privy Council 3 [Para 17]
Chhagan Dame Vs. State of Gujarat, A.I.R. 1994 SC 454 [Para 17]
Arbind Singh Vs. State of Bihar, A.I.R. 1994 SC 1068 [Para 17]
D. S. ZOTING, J.:- This is an appeal preferred by the original accused against the Judgment and order of conviction dated 09-03-1984, passed by Addl. Sessions Judge, Ahmednagar in Sessions Case No.20 of 1984, whereby the accused has been convicted and sentenced for an offence punishable under Section 302 of Indian Penal Code to undergo imprisonment for life.
2. The appellant-accused was prosecuted for an offence punishable under Section 302 of Indian Penal Code on the allegations that on the intervening night of 21st and 22nd of December, 1982, he committed murder of his wife Sushilabai by hitting big stone (Pata) on her head in the house of one Gaikwad situated at village Panoli, Taluka; Parner, District : Ahmednagar.
3. The murdered woman was one Sushila, aged about 30 years. She was married to the appellant some 12 years prior to the incident. The accused was working as agricultural labourer and after the marriage, he had settled down at Pimpalgaon in Junner Tahasil Pune, thereafter at Delvandi in Shrigonda Tahasil in Ahmednagar and for some time at his own place at Yelpane in Shrigonda Tahasil of same district. The couple had two daughters and one son. P.W.1 Pinty is the eldest amongst the children of the couple. Madhav Jadhav (P.W.7) is the father of deceased Sushila. Kachru Salve (P.W.2) is related to Madhav Jadhav (P.W.7). Mahdav Jadhav (P.W.7) was residing at Kadus, Taluka Parner, district - Ahmednagar, whereas, Kachru (P.W.2) was residing at village Panoli, where the incident occurred. Deceased Sushila was staying in the house of one Kashinath at Panoli. She used to do labour work at percolation tank under Employment Guarantee Scheme to earn her livelihood when she was staying at village Panoli. Her dead body was found in the house, where she was staying with her children on 22nd December, 1982. These are the facts which are fairly established or which are not disputed seriously by the appellant.
4. Prosecution case, in brief, is that the deceased Sushila and her husband were not pulling on happily. Sushila used to make grievance to her parents that the appellant used to beat her and ill-treat her at the instance of his mother and, therefore, Sushila left the house of the appellant and she started residing at the residence of her parents for some time with her children. She refused to go to her husband saying that if she goes there she will be killed. Therefore, she decided not to live with her husband. She went to village Panoli to earn her livelihood by doing labour work at percolation tank under the Employment Guarantee Scheme. She was living with her children in the house of Kashinath. After about a month, her husband came in her search and started living with her. It is alleged that the couple pulled on for about 2 to 3 months. However, the couple was not puling on well. In the night in question, the couple as well as the three children had slept and at about mid night child witness Pinty (P.W.1) aged about six years woke up on hearing the cry of her mother. At that time, the lamp was burning. In the light, Pinty found that her mother was lying and her father (the appellant) had put his leg on the neck of her mother and picked up grinding stone (Pata) and dashed that Pata on the head of Sushila. The girl got frightened and she went to sleep. In the mean while, the accused spread saree on the person of her mother. He changed his clothes and then went out. In the morning, when the girl woke up, she found that her father was not present in the room but her mother was lying there and she was not getting up and there was blood on her face and clothes. She hurriedly went out and approached Kachru (P. W. 2) and told him that her mother is not getting up. Kachru along with others immediately rushed to the house and they found Sushila dead. Sarpancha was not available in the village. Therefore, they waited for the Sarpanch. Sarpanch came in the evening and then Kachru told him about the murder. Sarpancha called Police Patil namely Gopal Bhau Gaikwad (P.W.4) and the Kotwal. Police Patil went to Police Station at Parner with his 'Khabri' report (Exh.12) read with (Exh.13). Offence was registered on the basis of 'Khabri' P.S.I. Pradip Baburao Khairnar (P.W.10) took up investigation and visited village Panoli on the same night. He held inquest on the dead body of the deceased Sushila in presence of panchas and referred the dead body to the Medical officer Dr. Yeshwant Ramchandra Dhamane (P.W.6). Panchanama of the scene of offence was drawn. The Pata, clothes of deceased Sushila were attached. The accused was arrested on 03-01-1983 in connection of the offence of attempt to commit suicide on 24th December, 1982, after his discharge from the hospital. The articles which were seized through investigation were sent to C.A. for chemical analysis. After completion of the investigation, the accused was charge sheeted for the afore said offence in the court of Judicial Magistrate, F.C., Parner.
5. Offence under Section 302 of Indian Penal Code is exclusively triable by Court of Sessions, hence, learned Judicial Magistrate, F. C., Parner, committed the case to the Court of Sessions, for trial according to Law.
6. Charge under Section 302 of Indian Penal Code was framed against the accused by the learned Addl. Sessions Judge, Ahmednagar. It was read over and explained to him. He pleaded not guilty and claimed to be tried.
7. The defence of the accused is of the total denial. He says that he never came and stayed at village Panoli with deceased Sushila and as such he does not know what happened to her and how she died. He denied that there was any ill-treatment to Sushila from him. According to him, they were pulling on happily for about 8 to 10 years at village Pimpalgaon as well as Belvandi. However, Sushila left his house at her own accord and he came to know about her death some days after her death. He has not adduced any evidence in his defence.
8. During the trial as many as 10 witnesses have been examined by the prosecution. Out of these 10 witnesses, child witness Pinty (P.W.1) is the only eye witness of the incident. On appreciation of the entire prosecution evidence, the learned Addl. Sessions Judge, Ahmednagar, relying upon the evidence of child witness as well as the circumstantial evidence, found the accused guilty of the offence punishable under Section 302 of the Indian Penal Code, and, therefore, the learned Judge has convicted the accused for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment.
9. Being aggrieved by the said Judgment and order of conviction and sentence passed against the accused, he has preferred this appeal challenging the said order of conviction and sentence before this court.
10. We have heard the arguments advanced by Shri. S. B. Agrawal, the learned counsel for the appellant-accused and Shri. A. V. Gorhe, the learned A.P.P. appearing for the respondent-State. The learned counsel for the appellant contended that the learned trial judge was in error to have come to his finding holding the accused guilty of the offence with which he was charged. He submitted that the learned Judge erred in accepting the evidence of child witness who admits that she has deposed before the court as per the instructions of her grandfather Madhav Jadhav (P.W.7). According to him, child witness is a tutored witness and as such the learned Judge ought not to have accepted the evidence of a child witness. He further submits that the evidence of the child witness does not found support in the medical evidence. Because, according to the child witness the accused picked up Pata with his both hands and hit it on the head of deceased and thereafter again he picked up that stone and threw it on the head of the deceased Sushila and if it was so, deceased Sushila's head and face would have been found in a compressed position. It is also pointed out by the learned counsel for the appellant that no blood was detected on the said Pata (stone). According to him, had the said stone been used for committing the murder of deceased, human blood would have been found on the said Pata. He further submits that F.I.R. (Exh.12) read with (Exh.13) does not disclose the name of the accused to be perpetrator of crime. It is contended that not a single witness of village Panoli except Kachru (P.W.2) who is related to complainant states that accused was living with his wife at Panoli. He further pointed out that though the Muster Asstt. Balasaheb Kale (P.W.9) has been examined, there is only stray entry regarding the attendance of the accused on one occasion in the register produced before the court which may be manipulated by the police to strengthen the prosecution case. He contended that the prosecution witness Kachru kept mum till evening though the dead body was noticed in the morning. He further submits that there is nothing on record to connect the accused with the crime except the circumstances, pointed out above which are highly suspicious. It is also submitted that the prosecution evidence is not free from doubts. However, the learned Judge convicted the accused for the offence under Section 302 of the Indian Penal Code. It is also submitted that the finding recorded by the learned Judge is based on erroneous appreciation of the evidence, and, therefore, the conviction and sentence maybe set-aside
11. As against this, Mr. A. V. Gorhe, learned A.P.P. has fully supported the Judgment and order of conviction passed by the learned Addl. Sessions Judge. He submits that the child witness is a natural witness. She is competent witness and her evidence should be believed. Her evidence finds support in the circumstantial evidence given by Kachru Salve (P.W.2) and Madhav Jadhav (P.W.7) so also the evidence of Muster Asstt. Balasaheb Kale (P.W.9). He further submits that the evidence was properly viewed by the learned Judge from the correct perspective and, therefore, the finding can not be said to be perverse and the order of conviction and sentence passed by the learned Judge does not call for any interference from this court.
12. In order to appreciate the relevant contentions raised by both the parties, it would be just and proper to consider the prosecution evidence, especially the evidence of child witness very carefully. It may be noted that the evidence recorded by the trial court consists of the testimony of as many as 10 witnesses, as under :
Direct Evidence :
Pinty (P.W.1), Child witness.
|Circumstantial Evidence : ||1.Kachru Salve (P.W.2). |
2.Gopal Gadekar (P.W.5).
3. Balasaheb Kale (P.W.9).
4. Madhav Jadhav (P.W.7)
5. Narayan Gaikwad (P.W.3).
6. Gopal Gaikwad (P.W.4), Police Patil.
|Medical Evidence :||Dr. Yeshwant Dhamane (P.W.6).|
|Police Officer : ||1.Chandrakant Gulabrao (P.W.8), Head Constable. |
2.Pradip Baburao (P.W.10), P.S.I.
The fact that deceased Sushila died unnatural death on the intervening night of 21st and 22nd December, 1982, has not come to be disputed in any manner by or on behalf of the appellant. She was alive when she went to bed at night on 21st December, 1982, as deposed by her daughter Pinty (P.W.1). On the next day, in the morning her dead body was found with injury on her person as deposed by Kachru Salve (P.W.2). Inquest over dead body of deceased was held by P.S.I. Khairnar (P.W.10) on 23rd December, 1982. Inquest panchanama is at Exh.16 which reveals injuries on her head. Post-mortem examination was conducted by Medical Officer Dr. Dhamane (P.W.6) who deposed that on external examination, he found following injuries :
"1. Lacerated wound over the face ½" away from rt. eye, oblique in direction ¾" x 1" x Bone deep.
2. Lacerated wound over the rt. ear on the upper part 1" x ¼", that part is cut.
3. Lacerated wound behind the rt. ear 1"x ½"x ¼" oblique in direction.
4. Depression over the head on the rt. temporal and rt. parietal bone 6" x 3" area.
5. Lacerated wound over the face on the lf. side, just over the lateral corner of the lf. eye ¾" x ¼" x ½" bone deep oblique in direction.
6. Abrasion over the neck on the anterior right on the rt. side 2" x ½" oblique in direction.
7. On palpation fracture of the skull is noticed."
He described all these injuries in column No.17 of the post-mortem report Exh.23. On internal examination, he had also noticed blood clots. Brain was found lacerated over the fractured part and this internal injury corresponds to the external injury no.4 i.e. depression over the head on the rt. temporal and rt. parietal bone, he noticed fracture of the skull during the internal examination. He opined that all these injuries were antemortem and they are possible by hard and blunt object. He further opined that the injuries were sufficient in ordinary course of nature to cause instant death. According to him, cause of death is due to "hemorrhage due to fracture of the skull." Having regard to all this evidence, which is of incontrovertible nature, there can not be any doubt that deceased Sushila met with homicidal death.
13. Now, the vital question arises for consideration is whether the prosecution succeeded in proving that the appellant accused is responsible for said homicidal death. In support of it's case, the prosecution mainly relies upon the direct evidence of child witness Pinty (P.W.1), aged about 6 years at the time of occurrence of the incident. Before appreciating the evidence of child witness, it would be just and proper to note the principles as regard the evidence of the child witness. All persons including children of tender years are competent witnesses under Section 118 of the Indian Evidence Act, unless they are in the opinion of the court unable to understand the question put to them or to give rational answers to those questions. Thus, competency of any witness is a rule and incompetency lies now within a narrow compass. The question of competency to testify as a witness is distinct from his credibility.
14. Kenny has observed in his Outlines of Criminal Law at page 420 (1952 Edition) that children are a most untrustworthy class of witnesses and it is found from common experience that they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others Dr. Hans Gross who is described as father of criminal research, in his book Criminal Investigation, 1934 Edition at pages 61-62, says :-
"The child as yet devoid of principles places great faith in the words of grown up people; so, if a grown up person brings influence to bear upon it, especially some time after the occurrence, the child will imagine it has really seen what it has been led to believe."
15. Thus, children of tender age are in the stage of maturation when the higher mental processes are forming, they are then creatures of will, emotion and actions and sometimes subjected to hallucinations and illusions. Dr. Hans Gross in his said book no doubt also writes that in one sense children of seven to ten years of age are best witnesses as at that time love and hatred, ambition and hyprocrisy, considerations of religion, rank etc, are yet unknown to them, but at the same time he has also pointed out great drawbacks which have made men distrustful of the capacity of children and says that they are apt to say much more from imagination than they actually know. These are thus the utterances of the eminent jurists and the psychologists about the mental make up of children.
16. Therefore, Judge has to examine evidence of a child witness very carefully and cautiously while assessing his competency and credibility. As regards competency of child witness, understanding is thus under Section 118 of the Indian Evidence Act is sole test of competency. In order to ascertain whether child is competent, although there is no provision to have a preliminary examination, such a course is desirable and should be resorted to because it offers an opportunity to the court to assess mental and intellectual capacity of child witness. Capacity of a child witness to understand should not be confused with his incapability in understanding nature of oath or sanctity of oath. Because child may understand his duty to speak the truth, but he may not understand the nature of oath or affirmation. But in any such case, absence of an oath or affirmation shall not render inadmissible any evidence given by such a child witness nor affix obligation of a witness to state the truth. Thus, if a child witness is found to be incapable of understanding the obligation of such an oath or affirmation he may be examined without an oath or affirmation provided he is found to be competent witness. In Rameshwar Kalyan Singh Vs. The State of Rajasthan, A.I.R. 1952 SC 54, witness was a child of 7 or 8 years and Assistant Session Judge had not certified that child understood the duty of speaking the truth. The Supreme Court did not accept the contention against the admissibility of the evidence of child witness and held that while it was desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth, such an opinion of the Magistrate or Judge could also be gathered from the circumstances even when there is no such formal certificate.
17. It is well settled that although legally there is no bar to accept uncorroborated testimony of a child witness, yet prudence requires that Court should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by Their Lordships of Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah Vs. The King, A.I.R. 1946 Privy Council 3. The same view was taken by the Supreme Court in Rameshwar Kalyan Singh Vs. State of Rajasthan, A.I.R. 1952 SC 54. The Supreme Court in the case of Rameshwar Kalyan Singh pointed out the nature and extent of the corroboration which should be required. The well settled principles have been reiterated from time to time in the decision given by the Apex Court. In Chhagan Dame Vs. The State of Gujarat , A.I.R. 1994 SC 454 the Supreme Court held that in the case of a child witness, Court has to carefully consider whether child was under the influence of any tutoring. The Supreme Court in Arbind Singh Vs. State of Bihar, A.I.R. 1994 SC 1068, reiterated the well settled principles as under:-
"It is well settled that the child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring."
18. In the light of these principles let us examine the evidence of the child witness Pinty (P.W.1). While recording her evidence, the learned Judge put certain questions so as to ascertain whether she is a competent witness and he found that she gave quite rational reply. He made endorsement at the beginning of the deposition to that effect. At the end, it is noted that the witness has no time sense or sense about the distance.
It is to be noted this child witness is a sole eye witness. She states that she was staying with her mother Sushila at Panoli in the house of Kashinath who is her maternal uncle. She states that Kashinath was staying at Bombay. Therefore his house at Panoli was vacant. The house consists of two rooms out of which child witness with her mother was living in one room and her mother was earning livelihood by doing labour work at percolation tank. This witness has one brother and one sister. She stated that the accused who is her father had come to stay with them at Panoli two months before the incident.
19. As regards the incident, she stated that on the fateful night, she woke up on hearing the cry of her mother and noticed in the light of the burning lamp that her father had kept his leg on the neck of her mother and picked up grinding stone and dashed it on the head of her mother. The accused then spread saree on the person of her mother. He changed his clothes and went out and did not return. Such clothes of appellant were not attached during investigation. She stated that she got frightened, hence, she did not raise the shouts and went to bed. However, in the morning, she woke up and seeing that the mother was not getting up and bleeding from mouth and nose being noticed, she started crying and went to the house of Kachru Mama (P.W.2) who is a neighbour and told him that her mother is not getting up. It is to be noted that at that time, she has not disclosed the occurrence that had happened in the night. If really she was the witness, she would not have failed to make disclosure of occurrence. Non-disclosure of the actual occurrence is the infirmity in her evidence. Another infirmity in her evidence is that she claimed that her father picked up the grinding stone and hit it on the head of her mother and thereafter he again picked up the stone and threw it on her head. It has come in evidence that at that time deceased was lying and the head was facing towards roof. Under such circumstances, if the assault is made with the big stone as narratted by her the deceased would have suffered a compressed injuries. Her face would have been found crushed and the stone would have been found stained with blood. Stone was sent to the C. A. He did not notice any blood stain to the stone. The Medical Officer in his cross-examination stated that except injury no.4, all are simple injuries. The remaining injuries were simple injuries. If the assault had taken place in the manner, as stated by the child witness, such type of these five injuries would not have appeared. There is no explanation from prosecution as to how these injuries are caused.
20. Now, turning to the evidence of Kachru (P.W.2), he stated that he resides at a distance of 250 feet from the house where the child witness was staying. He stated that at about 8 or 9 a.m. in the morning, Pinty (P.W.1) came to him and she was crying and when he asked as to what had happened, she told that her father beat her mother and she is not getting up. Therefore, he went to the house of deceased Sushila and found her dead. The evidence of this witness is also not free from infirmities. He had not disclosed this matter to anybody till evening. Ordinarily, it was desirable to report the matter to Police Patil, Kotwal or the Sarpanch. He says that he was in search of the Sarpanch, but he was not found till evening and when he met him in the evening at the motor-stand, he informed him. There is no explanation as to why he had not approached the Kotwal or Police Patil or any respectable person for reporting the matter to the police though he knew about the murder of his relative.. It is also to be noted that on approaching the Sarpanch, Sarpanch called Kotwal and sent him to the Police Patil who came to the spot and then he went to the police station to give 'Khabri' report Exhs.12 and 13. In the 'Khabri' report also the column pertaining to the name of the perpetrator of crime is kept blank. It is only mentioned that the murder of Sushila had occurred. The Police Patil Gopalrao Bhau (P.W.4) does not claim that anybody informed him about the commission of murder by the appellant. Same is the case in respect of the Sarpanch Narayan (P.W.3). It is to be noted that the Kotwal is not examined and both the Police Patil as well as Sarpanch have not offered a single word as to whether the accused was living with the wife at Panoli. It is to be noted that P.W.2 Kachru is related to Madhav (P.W.7), the father of the deceased Sushila. Though it is alleged that accused started living with Sushila since one or two moths prior to the incident, there is no corroboration to this fact from the Sarpanch or Police Patil who would be best witness to depose about this factual position. Attempt was made by the prosecution to show that the accused was also working at the percolation tank for earning his livelihood and for that purposes the prosecution examined Muster Asstt. Balasahab Kachru Kale (P.W.9), who filed the copy of muster register for the period from 20-12-1982 to 26-12-1982. No record of period prior to 20-12-1982 to show attendance of appellant as a labourer is produced. There appears only one entry which appears to be stray entry in the register (Exh.31). According to defence, it was manipulated by the Investigation Officer. No independent evidence is produced from the village where deceased Sushila was staying to show that accused was also living with her. Police Patil and Sarpanch kept mum in this respect. Thus except interested word of Kachru (P.W.2) who is related to father of deceased there is no evidence though it could be easily made available on record to show that accused was living with deceased Sushila. Under such circumstances together with his failure to make disclosure of incident till evening testimony of Kachru (P.W.2) fails to inspire confidence.
21. It is to be noted that though the incident had occurred on the intervening night of 21st and 22nd December, 1982, there is no whisper about the perpetrator of crime, till the time the father of Sushila came to Panoli on 23rd December, 1982. Thus, on 23rd December, 1982 only, the story of accused to be perpetrator of crime came up for the first time.
22. It is contended on behalf of the learned counsel for the appellant that as the deceased Sushila left the residence of her husband, her father has grievance against the accused. He has also pointed out the further infirmity in the evidence of child witness that despite of seeing the assault she did not cry but went to sleep. This also appears un-natural. It is to be noted that the child witness in her cross-examination has admitted that her grandfather told her what has to be stated before the court and she deposed what her grandfather asked her to depose. Under such circumstances, the possibility that she was tutored can not be ruled out. Therefore sole testimony of the child witness can not be safely accepted. As there is no convincing and reliable evidence as regard the fact that the accused was living with deceased Sushila the provisions of Section 106 of the Indian Evidence Act, can not be invoked. Despite of the infirmities in the evidence of the child witness, noted above, so also the admission of the child witness that she gave evidence as per the instructions given by her grandfather as to what has to be stated before the court, the learned Judge accepted the evidence of a child witness. Applying the principles as regard the appreciation of the evidence of child witness, as stated above, the finding recorded by the learned Judge holding the accused guilty merely on the basis of the evidence of a child witness, though suffers from infirmities apparently appears perverse and based on erroneous appreciation of the evidence, thereby causing miscarriage of justice. The way in which the learned trial Judge appreciated the evidence in the instant case, shows that the evidence was not viewed from correct perspective. The order of conviction passed by the learned Judge, therefore, deserves to be reversed.
24. The Judgment and order of conviction and sentence passed by learned Addl. Session Judge, Ahmednagar, in Sessions Case No.20/1984, dated 09-03-1984, is hereby quashed and set-aside. The accused is acquitted of offence charged under Section 302 of Indian Penal Code.