[CASE NUMBER] Against the judgment of conviction and order of sentence dated 25th May, 2005 passed by 4th Additional District & Sessions Judge, F.T.C. Dumka in [CASE NUMBER]. [ENTITY] son of [ENTITY], resident of village Panjan Pahari, at present village Kerlango, PS-Dumka(M),District- Dumka. Appellant -Versus- [ENTITY] Respondent For the Appellant : M/s [ENTITY], [ENTITY] & [ENTITY], Advocates For the State : Mr.[ENTITY], APP PRESENT HON'BLE MR.JUSTICE [ENTITY] HON'BLE MR.JUSTICE [ENTITY] By Court:- This criminal appeal is directed against the
judgment of conviction and order of sentence dated 25.5.2005 passed by learned 4th Additional District & Sessions Judge,F.T.C. Dumka in [CASE NUMBER], whereby the appellant having been found guilty of charges under [SECTION] [ACT], has been sentenced to undergo imprisonment for life besides a fine of Rs.1,000/- and in default thereof, to further undergo rigorous imprisonment of three months. The appellant has also been sentenced to undergo simple imprisonment of three months, having been found guilty for the offence under [SECTION] of the [ACT]. All the sentences have however been directed to run concurrently.
2. The case of the prosecution in brief is that the deceased [ENTITY] aged about 80 years old was residing at village Kulango in her house alongwith her grandson [ENTITY]) aged about 10 years. The informant-[ENTITY] had gone to her parent's house at village Nutanpara and was residing there with her parents, because her husband- [ENTITY] had gone to Kashmir to earn his livelihood. It is stated that [ENTITY] is the step son of the informant, who was living at village Kulango along with the deceased at the time of occurrence. It is also stated that accused-[ENTITY], resident of village Panjanpahari, being relative and brother of the deceased, was also residing in the same courtyard. On 28.5.2004, at about 5.00 p.m. one [ENTITY] , resident of village Kulango came to the informant(PW-6) and told that her mother-in law has died, upon which the informant alongwith her mother and aunt came to village Kulango and found her mother-in-law, namely, [ENTITY]) lying on a cot and half portion of her body was lying on the ground. It is further stated that though accused-[ENTITY] was sleeping in his house but he did not come there. Thereafter, the informant kept the dead body of her mother- in-law on the cot and informed the villagers. However, due to night, she(PW-6) could not do further in this regard and on the next date, in the morning, when the villagers assembled at the place of occurrence, they discussed about the injuries on the neck of the deceased and then accused [ENTITY] started fleeing away from the place of occurrence, but was caught hold by his brother and other villagers. The informant has further stated that one month ago, the son of accused- [ENTITY] was died and the accused [ENTITY] used to blame that deceased [ENTITY] had killed his son by witchcraft and the accused generally used to abuse the deceased by calling her Daain.
On the basis of the aforesaid [ENTITY], Dumka(M)Masanjore PS Case No.53 of 2004 was registered for the offence under [SECTION] of the [ACT] against the accused-[ENTITY] and after completion of investigation, chargesheet was submitted against the accused. However, the learned Chief Judicial Magistrate, Dumka took cognizance of the offence under [SECTION] [ACT] as also 3/4 of the [ACT].
3. In order to prove the charges against the accused, the prosecution has examined altogether ten witnesses, including the doctor(PW-10) and the Investigating Officer(PW-9) and the trial court after going through the materials on record and also considering the evidence of the prosecution witnesses has found the charges levelled against the accused to be proved and thereafter sentenced him to undergo as aforesaid.
4. Basing upon the circumstantial evidence, counsel for the appellant has assailed the judgment of the learned court below on the following grounds:
(I) The vital witness i.e. P.W.5-child witness, aged about 10 years was not examined in accordance with law and no certificate has been given by the trial court whether he was competent enough to depose or not. (II) No question having been put to the present appellant about the presence of PW-5 at the place of occurrence, the evidence of PW-5, who is a vital child witness , cannot be relied upon.
(III) Moreover, there is no material available on record to complete the chain of circumstances so as to hold the appellant guilty for the offences, as alleged by the prosecution.
5. On the other hand, learned Additional Public Prosecutor, has vehemently opposed the contentions raised by the learned counsel for the appellant and submits that there is overwhelming circumstantial evidence against the appellant to hold him guilty for the aforesaid offences, as it has come in the deposition of the witnesses that on the date of occurrence, deceased and appellant were residing in the same courtyard and the grandson (PW-5) of the deceased-[ENTITY], who was playing outside, when came to his house and called his grandmother, she replied nothing and thereafter he went inside the room and found his grandmother lying dead in the house and also disclosed about the presence of this appellant in his house and he has further stated that the appellant used to call his grandmother as a 'Daain' because he was suspecting strongly that his son has died one month ago due to witchcraft practiced by the deceased. It is further submitted that from the medical evidence also it appears that the death was caused due to asphyxia. On the basis of the aforesaid submission, learned Additional Public Prosecutor submitted that there being no infirmity in the impugned judgment and order of conviction and sentence, the findings arrived at by learned trial court do not require any interference by this Court.
6. We have heard learned counsel for both the sides and also perused the materials available on record. The accused- appellant was also examined under [SECTION] [ACT] , to which he pleaded not guilty and claimed to be tried.
7. PW-1 [ENTITY] is the village Pradhan. He has deposed that having heard about the death of deceased- [ENTITY], he went to the house of the deceased and saw some marks on the person of the deceased. He also went to the police station and put his signature(Ext.1). on the [ENTITY] (Ext.3). He is also a witness to the inquest report and has put his signatgure, marked as Ext.2. Nothing further has been elucidated by the prosecution from this witness, who is a co-villager.
8. PW-2-[ENTITY], another co-villager stated about the fact situation and in his cross-examination has stated that he did not give any statement to the police. This witness has been declared hostile by the prosecution.
9. PW-3 [ENTITY] is the co-villager, who also went to the police and police took his signature on the inquest report.
10. PW-4 [ENTITY] has been tendered by the prosecution.
11. PW-5 [ENTITY] is a child witness aged about 10 years. This witness is a vital witness, who has stated that on the date of occurrence, he was playing outside the house and when came to his house and called his grandmother, she replied nothing and thereafter he went inside the room and found his grandmother lying dead in the house and also disclosed about the presence of this appellant in his house and he has further stated that the appellant used to call his grandmother as a 'Daain' because he was suspecting strongly that his son has died one month ago due to witchcraft practiced by the deceased. In his cross-examiantion, he has stated that accused-[ENTITY] was residing in the said house since 10-12 years.
12. PW-6 [ENTITY] is the daughter-in-law of the deceased. She has stated that having heard about the death of the deceased from a boy, she along with her aunt came to the house and found the old lady lying dead and blood was oozing out from her ear and also found marks on her neck and back. Thereafter she informed the villagers. She has further stated that the appellant-[ENTITY] was sleeping in the house and inspite of repeated calls, he did not come and as such villagers have suspected that appellant might have killed her.
13. PW-7 [ENTITY] is the brother of the appellant. He has stated that he has not gone to see the dead body. During cross-examination, he has stated that the deceased [ENTITY] had constructed the house of the appellant-[ENTITY] and both of them were residing in the same courtyard separately.
14. PW-8 [ENTITY], though has been tendered by the prosecution but in his cross-examination, he has stated that both the deceased and appellant were residing separately and there is a wall in between their houses.
15. PW-9 [ENTITY] is the Investigating Officer, who has stated in his examination-in-chief that on 29.5.2004 he took the Fardbayan of the informant-[ENTITY] and thereafter inspected the place of occurrence. He has specifically stated that place of occurrence is the cow shed situated at the western side of the courtyard of the house of deceased [ENTITY]. He has further stated that the place of occurrence is 25' width from north to south and 10' from east to west and it is prepared of mud with thatched roof. He has further stated that after prapring the inquest report, he sent the dead body of the deceased for autopsy and having received the post mortem report and after taking the statement of the witnesses, he arrested the accused-[ENTITY].
In his cross-examination, this witness has stated that there is no eye witness to the occurrence and only on the basis of circumstantial evidence he has submitted the charge sheet. He has further stated that he has not sent the confessional statement of the accused to the Magistrate and has also stated that no reason has been given by him for not sending the same to the Magistrate.
16. PW-10 is Dr.[ENTITY], who has conducted autopsy of the dead body of the deceased and found the following injuries :
(i) Black mark over whole of neck transversely placed. Thickness of the blacking mark was 2 " wide .
(ii) Diffused swelling over left side of chest.
(iii) Abrasion 1' x ' over chin .
(iv) Abrasion 1' x ' below left shoulder .
In the opinion of the doctor, the death was caused due to asphyxia as a result of strangulation as well as shock and hemorrhage, as a result of injury no.(ii) or either (i) which was sufficient enough to cause death in ordinary course of nature. He has further stated that injury no.(i) may be caused by rope and injury nos.(ii), (iii) and (iv) may be caused by hard and blunt substance. The time elapsed since death within 24 hours.
17. Counsel for the appellant has relied upon the decisions rendered in the cases of [PRECEDENT] , reported in AIR (39)1952 S.C. 54, [PRECEDENT], [PRECEDENT] and [PRECEDENT] ] .
18. On the contrary, learned Additional Public Prosecutor has relied upon a judgment rendered by the Hon'ble Delhi High Court in the case of [PRECEDENT].
19. With regard to the evidence of child witness, it has been held by the Hon'ble Supreme in the case of [PRECEDENT], that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus a child witness is an easy prey to tutoring. It has also been settled that the evidence of a child witness must find adequate corroboration before it is relied upon. The evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness' evidence. If found reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation.
20. With this principle, we tested the veracity of the evidence of PW-5, a child witness. Nothing has been brought in this case that, in fact, the said child witness, who was aged about 10 years, was put to the aforesaid tests by the trial court before taking his evidence because child witnesses are amenable to tutoring and often live in a world of make- believe. It further appears that this PW-5 (child witness) at one point of time has stated that he has informed the Village Pradhan about the incidence and in the same line he has said that he has not informed the Village Pradhan. In his cross-
examination, this child witness has stated that he has not seen the incidence and that the appellant- [ENTITY] was residing separately in the same courtyard. Thus, it appears that there is no adequate corroboration in the evidence of this child witness.
21. It further appears that none of the incriminating material has been put to the appellant to explain the same. Except visiting the place of occurrence, preparing the inquest report and sending the dead body for post mortem examination, PW-9, who is Investigating Officer of the case, did nothing like seizure of incriminating materials etc. and collecting of some probable evidence against the appellant.
22. Thus, it is difficult to uphold the findings arrived at by the learned trial court, inasmuch as merely on suspicion, a person cannot be held guilty, as has been held by the Hon'ble Supreme Court in catena of decisions.
23. After considering the submissions of learned counsel for both the parties, this Court is of the view that the prosecution has not been able to prove its case beyond all reasonable doubt. As such, the instant appeal is allowed and the judgment of conviction and order of sentence dated 25th May, 2005 passed by 4th Additional District & Sessions Judge, F.T.C. Dumka in [CASE NUMBER] is set aside. The appellant, who is in jail, shall be released forthwith, if not required, in any other case.
( [ENTITY],J. ) ( [ENTITY], J. ) Jharkhand High Court,Ranchi The 3rd May, 2016 G.Jha/NAFR