JUDGMENT [ENTITY], J.
1. The appellant-[ENTITY] has questioned the correctness of the impugned judgment passed by learned Trial Court in [CASE NUMBER] acquitting the respondent from the offence under [SECTION], [ACT].
2. In brief the case of prosecution is that on 19-7-1990 at 8.30 a.m. [ENTITY] and his father [ENTITY] (hereinafter referred to as 'the deceased') were in their field. At that juncture accused [ENTITY] carrying an axe in his hand came there. Accused was saying to the deceased why he has dismantled his mound (Merh) in reply the deceased said that he had dismantled it and whatever could be done by the accused he may do so. It is said that accused brought a Kaatar (pointed stone) from his field and threw it on the deceased which hit his chest. The deceased fell down and thereafter accused came nearby the deceased and wielded 7-8 axe blows on the head of the deceased. On being screamed by [ENTITY], [ENTITY] and [ENTITY] arrived there and on seeing these two persons, accused lied towards the village carrying the axe. The deceased became unconscious and ultimately he succumbed to the injuries.
3. On being telephoned by some person to the police, the police party arrived in the village and on its arrival [ENTITY] lodged a [ENTITY] accusing the respondent.
4. On lodging of the [ENTITY], criminal law was set in motion. The police party who was already in the village seized the dead body; prepared inquest report, sent the dead body for post-mortem; recorded the statement of the witnesses; arrested the accused and recorded his memorandum under [SECTION] of the [ACT] and seized the axe which was used as a weapon in the commission of the offence at his instance.
5. In furtherance to his investigation, the Investigating Officer seized blood-stained and ordinary earth; sent blood stained axe and of her blood stained articles for serological examination and completed the investigation.
6. A charge-sheet was submitted in the Competent Court which on its turn committed the case to the Court of Session and from where it was received by the Trial Court for its trial.
7. Learned Trial Judge on the basis of the averments made in the challan papers framed charge under [SECTION], [ACT] against the accused, which he denied and requested for trial.
8. Thereafter prosecution examined its witnesses and placed the documents on record and proved them.
9. The defence of the accused-respondent is of false implication. However, he did not examine any witness in support of his defence. The learned Trial Judge on the basis of evidence placed on record came to the conclusion that prosecution has failed to prove its case as a result of which acquitted respondent.
10. In this manner, this appeal has been preferred by the appellant-[ENTITY].
11. The contention of learned Counsel appearing for the appellant State is that learned Trial Judge on the basis of the minor discrepancies and on account of faulty investigation acquitted the accused. According to him, there is clear, cogent and trustworthy evidence of [ENTITY] (P.W. 1), which is corroborated by the evidence of [ENTITY] (P.W. 2) and [ENTITY] (P.W. 3). By inviting our attention to the evidence of Autopsy Surgeon Dr. [ENTITY] (P.W. 12) it has been contended that ocular evidence of the eye-witnesses fully corroborates the evidence of the doctor (P.W. 12). It has been propounded by learned Counsel that even if there are certain minor discrepancies in the evidence of the witnesses, they cannot be stretched upto the extent in order to put a deep dent on the veracity of the prosecution case. Thus, according to learned Counsel since the prosecution has proved its case beyond all possible doubts the singular inference which could be drawn is that respondent has committed the offence under [SECTION], [ACT] and, therefore, by setting aside the impugned judgment of acquittal, this appeal be allowed.
12. Combating aforesaid submissions, it has been contended by Smt. [ENTITY], learned Counsel appearing for respondent-accused that learned Trial Judge after X-raying entire gamut came to hold that there are serious infirmities in the statement of the witnesses and, therefoie, learned Trial Judge did not err in passing the impugned judgment of acquittal. It has been further put-forth by her that there are material discrepancies in the [ENTITY] as well as in the police statement of the witnesses. By inviting our attention to the impugned judgment it has been contended by learned Counsel that blood stained articles including the axe were sent for serological examination at Calcutta, but no report thereof has been placed on record in order to show that what was the blood group on the articles and whether it was human blood and, therefore, learned Trial Judge did not err in passing the impugned judgment of acquittal.
13. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.
14. Mr. Justice [ENTITY] has said:
Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down.
Mr. Justice [ENTITY] has said that:
Law is means to an end and justice is that end. But in actuality, Law and justice are distant neighbours; sometimes even stage hostile. If law shoots down justice, the people shoot down law.
The well settled criminal jurisprudence is that no innocent person should suffer but a guilty should also not escape unpunished.
15. In the present case, the prosecution has cited [ENTITY] (P.W. 1), [ENTITY] (P.W. 2) and [ENTITY] (P.W. 3) as eye-witnesses. [ENTITY] is the son of deceased and was present in the field when the incident look place. The of her two eye-witnesses were present in their fields which are adjoining to the field of the deceased.
16. [ENTITY] (P.W. 1) is a child witness. When he appeared in the Court he expressed his age to be 10-12 years. This witness is also the author of the [ENTITY] (Exh. P-12). The date and time of incident have been mentioned as 9-7-1990 at 8.30 a.m. and the report ([ENTITY]) was lodged on the same date, i.e., 19-7-90 at 11.30 a.m. On going through the [ENTITY] it is perceivable that this witness along with the deceased was present at the time of incident in his field. The accused at that juncture came carrying an axe in his hand and asked the deceased that why he has dismantled the mound. The deceased replied that he had dismantled the same and whatever can be done by him, he may do. Immediately thereafter accused picked-up a Kaatar from his field and threw it on the chest of his father, as a result of which his father sat down. Thereafter accused came and dealt 7-8 blows of the axe on his head. After the injuries were caused to his father, this witness shirked as a result of which inhabitants of the Village [ENTITY] and [ENTITY] arrived at the spot and on seeing these two persons, accused ran away towards the village carrying the axe. Thereafter deceased hiccupped and died. This [ENTITY] was lodged by this witness in village when police party arrived there.
17. When [ENTITY] appeared in the Court, learned Trial Judge put certain questions to this witness in order to ascertain whether he has sufficient intelligence to answer the questions. After noticing the manner in which he had replied some general questions put to him, Trial Judge did not administer oath to the witness being a child witness. However, we find that the questions which were put to this witness and the answers he gave, one can understand that he is an intelligent person to give answer to the questions put to him.
18. In his statement [ENTITY] has specifically stated that accused was having a stone and also the axe. On account of dismantling of the mound altercation took place between the deceased and accused. Thereafter accused threw the stone which hit his rib region of his father (the deceased), as a result of which he fell down. Thereafter respondent came and dealt several blows of axe on his head. On account of raising alarm inhabitants of the village arrived at the spot and on seeing them accused ran away. It has also been stated by him that he was also beaten by the accused. On account of receiving the injuries his father hiccupped and ultimately he died. This witness was cross-examined at length but he remained vivid in his version. Except certain minor contradictions and omissions which have arrived in his testimony there is nothing in his testimony in order to disbelieve him. This witness has specifically stated in Para 5 of this testimony that on arrival of the police party he lodged the report ([ENTITY]). Merely there is omission of words throwing stone in the [ENTITY], the evidence of this witness cannot be discarded which is otherwise found to be quite cogent. Even in the [ENTITY] word "Kaatar", which means pointed stone, has been mentioned, therefore, according to us, there is no material omission in [ENTITY]. True, no injuries on the chest region of the deceased was found by the autopsy surgeon, but, it is equally true that autopsy surgeon Dr. [ENTITY] (P.W. 12) found as many as four incised wounds and all of them were found on the head of the deceased. Thus the evidence of this child witness that several blows were dealt by the accused on the head of the deceased is also corroborated by the medical evidence. The clear, cogent and trustworthy evidence of this witness cannot be discarded merely because he has stated that he was also beaten by the accused. At the most that part of his evidence is required to be ignored, but the crux of his evidence is that accused dealt blows by axe on the head of the deceased, as a result of which he died.
19. We arc not impressed by the submission of learned Counsel for the respondent that Since [ENTITY] is a child witness, therefore, his evidence should not be relied upon. The law in regard to the evidence of a child witness is now well settled. If the testimony of a child witness is worth reliable and free of all doubts and is not shaky, there is no law as such that solely on the basis of evidence of a child witness, conviction cannot be accorded. The evidence of child witness is relevant under [SECTION] of the [ACT]. According to this section 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 those questions, by tender years, extreme old age, disease, whether of body or mind, or any of her cause of the same kind.
20. The Supreme Court in the case of [PRECEDENT] by placing reliance on earlier decision [PRECEDENT] , has held that a child witness if found competent to depose to the facts and reliance one such evidence could be the basis of conviction. In of her words, even in the absence of oath the evidence of a child witness can be considered under [SECTION] of the [ACT] provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of the 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 of her competent witness and there is no likelihood of being tutored.
21. We have already held hereinabove that the evidence of [ENTITY] (P.W. 1) is worth reliable as he has in specific words stated that accused dealt several blows on the head of the deceased. In the post-mortem report also it is mentioned that the injuries were found on the head of the deceased.
22. The evidence of [ENTITY] (P.W. 1) is corroborated by the evidence of [ENTITY] (P.W. 2) and [ENTITY] (P.W. 3). The fields of these witnesses are adjoining to the field of the deceased where the incident had taken place. It has come in the evidence of these two witnesses, namely, [ENTITY] and [ENTITY] that they have witnessed the incident from a distance of about 5-10 paces. Merely because [ENTITY] in Para 11 of his testimony has stated that before he could scream respondent-accused ran away, would not mean that [ENTITY] and [ENTITY] have not seen the incident. It has come in the evidence of these witnesses that their fields are adjoining to the field of the deceased and they have seen the incident from the distance of about 5-10 paces and even before [ENTITY] could scream, accused ran away from the spot would not dilute the evidence of these two eye-witnesses. Learned Trial Judge has given much emphasis on the number of blows of the axe dealt to the deceased. Merely because there is minor discrepancy about the number of blows which were dealt, it will not dilute the case of prosecution which is otherwise found to be proved.
23. According to learned Trial Judge in [ENTITY], [ENTITY] (P.W. 1) has used the word "Kaatar " and in the Court he has stated that stone was thrown would not make much difference because Kaatar is also a type of stone. Apart from this, it is well settled in law that FIR is not a substantive piece of evidence and the real aim and object of lodging of the FIR is to set the criminal law in motion. The FIR is not an encyclopedia of the facts concerning the crime. But it must contain some definite information vis-a-vis the crime. In this context, we may profitably rely Para 13 of the decision of the Supreme Court [PRECEDENT]. . The Supreme Court in the case at [PRECEDENT] , has held that FIR can be utilised for the purpose of corroborating or contradicting only the maker thereof. FIR cannot be used to discredit testimony of any other person. Thus, even if there are certain minor omissions in the FIR, it would not dilute the evidence of [ENTITY] (P.W. 2) and [ENTITY] (P.W. 3), who have witnessed the incident from their fields and which are adjoining to the field of the deceased. In very specific words they have stated that the accused dealt blows of axe on the head of the deceased.
24. At this juncture, it would be quite germane to discuss the evidence of autopsy surgeon Dr. [ENTITY] (P.W. 12) and his post-mortem report (Exh. P-11), in which he found following injuries:
(1) Incised wound present over left side forehead 4 cm x 1.5 cm x bone deep with fracture of frontal bone.
(2) Incised wound over head (left temporal region) 5 cm x 3/4 cm x bone deep with fracture of temporal bone.
(3) Incised wound present over head (right parietal region) 8 cm x 0.5 cm x bone deep with fracture (right parietal bone).
(4) Incised wound over head 2 cm lateral to injury No. (3) 4 cm x 1 cm x bone deep with fracture of right parietal bone.
Thus, the evidence of abovesaid three eye-witnesses is fully corroborated by the medical evidence.
25. [ENTITY] has said that the sword of justice has no scabbard. Looking to the act of the accused-respondent as he used axe and inflicted its blows on the head of the deceased, the sword of justice which is not having any scabbard is to be used against him.
26. [ENTITY] has said that injustice anywhere is a threat to justice everywhere. Thus, there may not be any threat to the justice it is necessary to use sword of justice against respondent-accused who has committed the offence by killing the deceased by axe.
27. The Supreme Court in the case of [PRECEDENT]. , in Para 11 has elucidated the law about the object and function of criminal law and jurisprudence which read thus:
11. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting society.
By applying the abovesaid aim, object and function of criminal law, it is to be held that security of persons is an essential function of the State and it should be achieved through instrumentality of criminal law.
28. The Supreme Court in the case of [PRECEDENT], has said much about criminal jurisprudence that no innocent person should suffer imprisonment but a guilty should also not escape unpunished. It has been laid down by the Supreme Court that it is true that golden thread with runs throughout the cob-web of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in the criminal jurisprudence, has to be a reasonable doubt and not excuse for finding in favour of acquittal.
29. Learned Trial Judge has given much emphasis that the prosecution has failed to prove its case beyond doubt. It should be borne in mind that the doubt should be reasonable. The proof beyond doubt is a guideline, not a fetish. The Supreme Court in the case of [PRECEDENT] , in Para 17 has held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.
30. For the reasons stated hereinabove, the only view possible in the present case is that accused-respondent has caused injuries on the person of the deceased by axe, as a result of which he died.
31. The question now would arise, what offence the accused-respondent has committed. It has come in the evidence that since the deceased dismantled the mound of the field of accused-respondent, altercation took place between them in that regard the deceased said that he has dismantled the mound and the accused may do whatever he can and thus in a heat of passion, on account of said altercation the accused caused blows of the axe and hence according to us, there was no intention of accused-respondent to cause death of the deceased, but he was fully aware and was knowing well that his act may cause death of the deceased. Thus, according to us, respondent-accused has committed the offence punishable under [SECTION], [ACT].
32. Resultantly, this appeal succeeds in part and the judgment of absolvitur passed by learned Trial Court is hereby set aside. The accused-respondent is convicted under [SECTION], [ACT] and is sentenced to suffer rigorous imprisonment of eight years. The accused is hereby directed to surrender in order to serve out the sentence.