Crl.A. 229/2006 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE C.R. SARMA (Ranjan Gogoi, J.) The accused appellant, who is in jail, has preferred this appeal challenging the judgment and order dated 12.7.2006 passed by the Addl. Sessions Judge No.2 (Adhoc), Tinsukia in Sessions Case No.61(M)/04. By the aforesaid jud gment, the accused appellant has been convicted under Section 302 IPC and senten ced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, i n default, to suffer rigorous imprisonment for six months more. 2. The prosecution case in short is that on 8.11.2002 at about 10.3 0 P.M., P.W.1 one Dhiren Likson lodged a FIR in the Lekhapani Police Station all eging that at about 5 P.M. of the same day he was informed that his son Raju Lik son who used to reside with his elder sister in Village Langtong was killed by t he accused appellant with a dao. According to the first informant, on getting th e news, he immediately came to Langtong Village where he found the dead body of his son lying on the road with cut injuries on several parts of the body. In the first information report, it was also mentioned that the informant was informed by his grandson that at about 3 P.M. of the day of occurrence i.e. 8.11.2002, t he accused appellant along with another person came in a Maruti Car and had kill ed the deceased Raju with a sword. 3. On receipt of the aforesaid FIR, Lekhapani Police Station Case N o.45/2002 under section 302/341 IPC was registered. The case was investigated by P.W.13, Shri Bijoy Gogoi, Sub-Inspector of Police. In the course of the investi gation, the police party after visiting the place of occurrence prepared a sketc h map of the same, held inquest on the dead body which was sent for postmortem e xamination. P.W. 3, Shri Biswajit Das, and P.W. 9, Shri Tara Bahadur Sonar, who claimed to be eye witnesses to the occurrence were sent to the Court of the lear ned Judicial Magistrate for recording of their statements under Section 164 Cr.P .C. It also appears that at about 6.20 P.M. of the day of occurrence the accused appellant surrendered in the Ledo Police Outpost along with a sword. The said f act was entered in the General Dairy of the Police Outpost i.e. G.D. Entry No.16 3 of 8.11.2002. Thereafter at the conclusion of the investigation, charge sheet was submitted against the accused appellant and another accused Ghana Phukan und er Section 302 IPC. The said offence being exclusively triable by the Court of S essions, the learned SDJM, Margherita, by order dated 3.4.2004, committed the ca se for trial to the Court of Sessions at Tinsukia. In the Trial Court, charge un der Section 302/34 IPC was framed against the accused appellant and the other ac cused Ghana Phukan. The accused appellant pleaded not guilty and claimed to be t ried. Thereafter, it appears that the accused Ghana Phukan absconded and the tri al proceeded against the accused appellant. In the trial held 15 witnesses were examined by the prosecution and several documents including the Sketch Map, Inqu est Report, Postmortem Report, Seizure list and the statements of P.Ws.3 and 9, recorded under Section 164 Cr.P.C., were exhibited. No evidence was led on behal f of the defence. However, the accused appellant was examined under Section 313 Cr.P.C. Thereafter, at the conclusion of the trial, the accused appellant has be en convicted and sentenced, as aforesaid, giving rise to the present appeal. 4. P.W. 1, Shri Dhiren Likson, is the father of the deceased. The d eposition of P.W. 1 substantially conforms to what has been stated by him in the FIR filed. P.W. 2, Smti Malika Das @ Miliki Das, is the sister of the deceased who came to know of the incident later and, thereafter, went to the place of occ urrence and found the dead body lying on the road side with cut injuries on the neck, head and the back side of the body. 5. P.W. 3, Shri Biswajit Das, is the nephew of the deceased (son of the sister with whom the deceased was staying in Langtong Village). At the time of occurrence, P.W. 3 was about nine years old. In his deposition P.W. 3 has gi ven a vivid description of the occurrence that took place. According to this wit ness, shortly before the occurrence, the deceased along with a Nepali boy was cu tting bamboo in the backyard of the house. After completing the work, the deceas ed came to the house and after cleaning himself was engaged in some kind of conv ersation with P.W. 3. At that point of time, the accused appellant along with th e accused Ghana Phukan came to the house in a Maruti Car. After being engaged fo r sometime in a conversation with the deceased, the accused appellant called the deceased to the car on the pretext of showing something that was in the vehicle . According to P.W. 3, the accused appellant took out a sword from the car and a fter rebuking the deceased gave a blow on his back whereas the other accused Gha na Phukan held the deceased. P.W. 3 has further deposed that somehow the decease d succeeded in moving away from the accused. However, the accused appellant foll owed the deceased and assaulted him on his back and legs with the sword as a res ult of which the deceased fell down. Once the deceased had fallen down, accordin g to P.W.3, he was assaulted by the accused appellant by means of a sword on his neck as well as on the legs. P.W.3 has further deposed that he had seen the occ urrence by concealing himself behind the wheel of a truck. The witness has also deposed that seeing him the accused appellant wanted to kill him also but he ran away from the place. Thereafter, according to P.W. 3, the accused persons left the place in the car. 6. P.W. 4, Smti Chaya Sonowal, is a neighbour who has deposed that shortly before the incident she had gone out of her house to attend a marriage c eremony. While leaving, she had seen the deceased Raju Likson and one Sanu Kisha n cutting bamboo in the backside of the house where the deceased used to reside. P.W. 5, Shri Kiran Das, again, is not a witness to the actual occurrence having come to know of the incident later. P.W. 6, Shri Bipin Barman, had deposed that on the day of occurrence, while proceeding to his house, he noticed a crowd gat hered on the road in front of the house of the deceased. According to P.W. 6, he was told by the persons present that the deceased has been killed by the accuse d appellant. Thereafter, P.W. 6 went inside and saw the dead body with cut injur ies on the neck and back side. P.W. 6 has further deposed that he was informed o f the details of the incident by the nephew of the deceased (P.W. 3-Shri Biswaji t Das). 7. P.W. 7, Smti Marimala Sarmah, did not really support the prosecu tion case. On the other hand, P.W. 8, Shri Anil Kr. Sarmah, had deposed that in the evening of the day of occurrence he had found the accused appellant and the other accused Ghana Phukan on the road near his house. According to P.W. 8, he w as informed by the two accused that they had committed a crime. Thereafter, acco rding to P.W. 8, he advised the accused persons to surrender either in the Lekha pani Police Station or at the Ledo Police Outpost. 8. P.W. 9, Shri Tara Bahadur Sonar, had deposed that on the day of occurrence at about 12 Noon he had gone to the house of the deceased to cut bamb oo. At about 3 P.M., after finishing his work he took his meal. While he was eat ing, he heard shouting outside i.e., from the direction of the road. According t o P.W.9, leaving his food he came out and could saw the accused appellant runni ng on the road towards the house of the deceased. According to P.W. 9, he fled a way from the house through the backdoor and, on return after about 15 minutes, h e found the dead body of Raju lying on the road with cut injuries on the neck. P .W. 9 had corroborated the fact that at the time of occurrence P.W. 3 was presen t in the house. 9. P.W. 10, Shri Naru Das, had deposed that in the evening of the day of occurrence, he along with one Madhu Rudra had gone to the Ledo Police Out post. According to this witness, the accused appellant had appeared in the polic e outpost along with a sword and handed over the same to the police which was se ized by seizure list Ext.4 which was signed by the witness. The person who was i n the police outpost along with P.W. 10 i.e. Madhu Rudra has been examined as P. W. 11. He has corroborated the evidence of P.W. 10. 10. P.W. 12, Dr. Bhusan Ch, Roy Medhi, had performed the autopsy on the dead body in the Assam Medical College Hospital, Dibrugarh on 9.11.2002. Dep osing from the postmortem report, which was exhibited as Ext.5 in the case, P.W. 12 had stated that he found the following injuries on the body of the deceased :- Injuries :- (1) One cut injury present on right side of neck. Cutting the soft tissu es as a whole and 4th cervical vertebrae and spinal cord, trachea, oesophagus at side. (2) Sliced cut injury 15 cm x 6 cm from behind left ear curved up to who le left occipital region of scalp, occipital bone and brain cut partly. (3) One cut injury 9 CM x 4 CM x muscles and left Scapula bone cut over left side of back of chest. (4) Cranium and spinal cord. Scalp and skull described in injury No.2. Vertebrae - 4th Cervical vertebrae cut and rest healthy. Membrane cut along skull cut injury sub dural haemorrhage present on lef t side. Brain - Brain cut partly on left parietal and occipital lobe. (3) Thorax - Thorasic organs are found healthy except the wall described in injury No.3. (4) Abdomen. All abdominal organs are found healthy. (5) Stomach. Stomach healthy and empty. 11. P.W. 13, Shri Bijoy Gogoi, is the Investigating Officer of the c ase. Apart from deposing with regard to the different steps taken in the course of the investigation this witness had stated that soon after the incident the ac cused appellant had surrendered in the Ledo Police Outpost along with a sword. 12. P.W. 14, Shri Bimal Sonowal, Assistant Sub-Inspector of Police, was working at the relevant time in the Ledo Police Outpost. According to this w itness, at about 6.20 P.M. of the day of occurrence, the accused appellant had c ome to the police station along with a sword and having handed over the same to P.W. 14 had admitted that he had killed the deceased with the sword. P.W. 14 had deposed that he recorded the said information in the General Diary of the Outpo st. The particular entry i.e. G.D. Entry No.163 dated 8.11.2002 was proved as Ex t.8 in the case. 13. P.W. 15, Shri Rajen Mahanta, is the Executive Magistrate who con ducted the inquest on the dead body of the deceased. He has proved the inquest r eport as Ext.2 in the case. 14. A consideration of the evidence adduced by the prosecution witne sses, the core of which has been noticed above, would indicate that there is one solitary eye witness to the occurrence who was aged about 9 years at the time w hen the incident is alleged to have occurred. The question that confronts the Co urt is whether the evidence of P.W.3, who is a child witness, should be accepted and, if so, whether the same can constitute a sufficient basis for arriving at a conclusion with regard to the culpability of the accused. The law on the twin issues that confronts the Court in the present case is fairly well settled. Ther e is no legal embargo on the acceptance of the evidence of the child witness so long what has been deposed to by such a witness is clear, consistent and intelli gible and otherwise satisfies the Court. In many situations the only witness to a crime who may be available would be a minor and that is why the law permits re liance to be placed on the evidence of such a witness provided what is stated is found by the Court to be satisfactory. In many crimes that may take place withi n the confines of a home, a child witness may be the most natural witness. This is precisely the situation in the present case. We have perused the evidence of P.W. 3 with great care and caution and we do not find any reason why the evidenc e of P.W. 3 should be discarded merely because he was nine years old at the time of incident. The presence of P.W. 3 at the place of occurrence at the time when the incident had happened is natural. The said fact is also corroborated by the evidence of P.W. 9, Shri Tara Bahadur Sonar. That apart, the evidence of P.W. 6 , Shri Bipin Barman, clearly indicates that when he had gone to the place of occ urrence, P.W. 3 had narrated to him the details of the incident showing the invo lvement of the accused appellant. The said narration, as contained in the eviden ce of P.W. 6, is substantially similar to what has been stated by P.W.3 in his e vidence. 15. Having held the evidence of P.W. 3 to be acceptable, the next qu estion that the Court will have to address is whether the conviction of the accu sed appellant can be founded on the basis of the testimony of the solitary eye w itness. Once again there is no legal embargo in this regard so long the evidence satisfies the Court with regard to its intrinsic worth. We have already held th at the evidence of P.W.3 is clear, lucid and consistent and does not suffer from any infirmity. Not only that, there is sufficient corroboration of the evidence of the said witness coming from his statement recorded under Section 164 Cr.P.C . which was so recorded at the earliest point of time i.e. immediately after the occurrence. In addition to what has been noticed above, there is further eviden ce to the effect that the accused appellant and the absconding accused Ghana Phu kan had admitted the commission of the crime to P.W. 8, Shri Anil Kumar Sarmah, who advised them to surrender at the police station. The accused appellant had, infact, surrendered at the police station along with the sword which fact finds corroboration from the entry in the General Diary exhibited as Ext.8 as also fro m the evidence of the two independent witnesses i.e. P.W.10, Shri Naru Das and P .W. 11, Shri Madhu Rudra apart from the testimony of P.W. 13 & 14 i.e. the Polic e Officers associated with the case. 16. All the discussions that had preceded leaves us satisfied that i n the present case the prosecution has succeeded in bringing home the charge lev elled against the accused appellant beyond all reasonable doubt. We, therefore, find no infirmity in the conviction of the accused appellant under Section 302 I PC. We also do not find any infirmity in the sentence imposed. Consequently, we dismiss the appeal and affirm the judgment and order dated 12.7.2006 passed by t he Addl. Sessions Judge, No.2 (Adhoc), Tinsukia in Sessions Case No.61(M) of 200 4.