Crl.A. 239/2006 BEFORE HON’BLE THE CHIEF JUSTICE MADAN B.LOKUR HON’BLE MR. JUSTICE A.K.GOSWAMI JUDGMENT AND ORDER (A.K.Goswami,J) This criminal appeal is directed against the judgment dated 7.8.2006 p assed by the learned Sessions Judge, Bongaigaon, in Sessions Case No. 23(B)2005, convi cting the accused appellant under section 302 IPC, for committing murder of his second wife , Sajeda, and sentencing him to suffer rigorous imprisonment for lif e and to pay a fine of Rs. 1,000.00, in default of payment of fine, to undergo r igorous imprisonment for another term of six months. 2. We have heard Mr GS Sarkar, learned counsel for the accused appellant a nd Mr Z Kamar, learned Public Prosecutor, Assam. 3. The prosecution case, in brief, is that on 4.4.2000 an FIR was lodged by one Md Nabab Ali, stating that at about 12 noon on that day, Md Zakir Hussain S heikh had stabbed his second wife to death with a dagger in his father-in-law’s house and that the villagers had apprehended and handed over him to the police. Based on the aforesaid , Bijni PS Case No 39/2000 under section 302 IPC was regi stered, consequent upon the FIR being forwarded by the Officer-in-Charge of Panb ari Police Out Post to whom the information was given by the aforesaid Md Nabab Ali, a cousin of the deceased. After the investigation was completed, charge she et was submitted and the case being exclusively triable by a Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Bijni, vide his order dated 11.3 .2005, in GR Case No 57/2000, committed the case to the Court of Sessions, Bonga igaon, wherein Sessions Case No 23(B)2005 was registered. The learned Sessions J udge framed charge under section 302 IPC and the same being explained to the ac cused appellant, he pleaded not guilty and claimed to be tried. 4. During the trial, the prosecution examined 13 witnesses. No evidence wa s adduced by the defence. The Doctor who conducted the post mortem examination o n the dead body was examined as PW- 9. The police officer who submitted the ch arge sheet was examined as PW- 11. The Magistrate who recorded the statement of the appellant under section 164 Cr.P.C was examined as PW- 12. The Police Office r who had conducted investigation in the initial stage was examined as PW- 13. T here was only one eye witness who was examined as PW- 7. 5. PW- 1 is the reported witness who had gone to the police station with th e informant. PWs- 2, 3 and 4 are witnesses to the inquest report, Ext- 1. All o f them being informed that Sajeda was killed, had gone to the place of occurr ence. PW- 5 appears to be the first witness to have visited the place of occurre nce. Her house is next to the house of the father of the deceased. According to her version, hearing commotion from the house of the father-in-law of the accuse d appellant and upon going there, she found the deceased in injured condition w ith cut wound in the chest and abdomen. The deceased was groaning but she could not say anything. In her cross-examination, she said that she had not seen any o ne except Sajeda when she went to the house of Baset (father of the deceased and father-in-law of the accused) on a run and that the villagers had come after she had raised commotion. 6. PW- 6 is the mother-in-law of the accused appellant and the mother of th e deceased. According to her, though the accused appellant had married Sajeda ou t of his own choice, Sajeda was compelled to return home because of the atrociti es of the accused appellant. Sajeda had given birth to a son in her house and ac cording to her, the accused appellant had divorced her. At the time of incident , she was not in her residence. On being informed by her other daughter Ajufa about the incident, she returned home and found that the accused was kept tied by the villagers and Sajeda had succumbed to her injuries by then. It is her ca tegorical statement that Ajufa told her that the accused appellant had stabbed S ajeda to death. 7. PW- 7 , Azufa , is the sole eye witness, who was about 11 years old at t he time when the incident had occurred. She is the younger sister of the decease d. In her deposition, she had stated that only she and Sajeda were at home and her parents had gone out. It also came out in her version that the accused had d ivorced her. On that fateful day, the accused appellant came and demanded to s ee the child, in response to which, this witness claimed to have wondered as to what was the idea of seeing the child when he had divorced her sister. Sajeda a t that time was inside the house combing her hair. It is her version that the ac cused appellant went inside the house and stabbed Sajeda, first in the chest an d then again in her abdomen with a knife. She witnessed the entire incident. She raised commotion and PW-5 came to the place of occurrence and other neighbours also gathered and after apprehending the accused appellant , tied him up. She st ated that she had gone to her maternal aunt’s house to call her mother and she told her mother about the incident. 8. PW- 8 is the father of the deceased who was informed about the incident while he was at the Panbari Bazar. Rushing home, he found Sajeda was lying on th e ground with stabbed wounds in her chest and abdomen and he was also informed b y Ajufa that the accused appellant had stabbed Sajeda to death. He also found the accused appellant being tied in the courtyard by the villagers. According t o him, though the accused appellant had divorced Sajeda, subsequently he wanted to take her back again and Sajeda had declined to go with him and, therefore, t he accused appellant had killed her. 9. PW-9 is the doctor who conducted the post mortem examination on the body of the deceased and he found the following injuries : 1. One penetrating injury 1 x 1 x 3 at outer border of the left breast. 2. Second penetrating injury 1 x 1 X 2 ‰ at left loin 10. PW- 10 is the informant and he deposed that he filed the FIR, Ext- 3. He was also informed by his family members, when he returned from office, that Zak ir had killed Sajeda. 11. PW- 11 as has been noted earlier, merely deposed about his filing of ch arge sheet under section 302 IPC and he stated in his evidence that the earlier Investigating Officer had completed the investigation. 12. PW- 12 is the Sub-Divisional Judicial Magistrate, Bijni, who deposed to wards recording of the confessional statement of the accused appellant under se ction 164 Cr.P.C on 5.4.2000. He testified that only after he was satisfied that the accused appellant was going to make confession voluntarily, after taking n ecessary safeguards as enjoined, he had recorded the statement of the accused ap pellant , which was exhibited as Ext-5(2). 13. PW- 13 is the Investigating Officer who had otherwise completed the inve stigation. According to him, the place of occurrence is the residence of the acc used appellant Zakir Hussain at Bogidara village. In cross-examination, he had mentioned that he had not seized any weapon and the villagers had apprehended th e accused appellant after he had run about 50 meters in a bid to escape. It als o came out in his evidence in cross-examination that the name of the father of t he deceased is Zakir and he is also known as Abdul Baset. He had also stated tha t the dead body was found in the house of Zakir Hussain, i.e, father-in-law of t he accused appellant. 14. In his statement under 313 CrPC, the accused appellant denied to have s tabbed Sajeda and also denied the alleged confession that he had made before th e Magistrate. 15. The learned Sessions Judge, in his judgment under challenge, rejected th e confessional statement as not trustworthy. The learned trial Judge also found certain infirmities with the recording of the statements under section 164 Cr. P . C. In the aforesaid view of the matter, the learned trial Judge did not take i nto consideration the confessional statement, Ext- 5, in determining the complic ity or otherwise of the accused in the offence. The learned trial Court, however , on consideration of evidence on record and, more particularly, the evidence of PW- 7, the sole eye witness, found the accused appellant guilty of the offence under section 302 IPC and accordingly, he recorded conviction of the accused ap pellant. 16. Mr Sarkar, learned counsel appearing for the accused appellant, criticiz ed the testimony of PW- 7 and he submits that the learned trial Court committed illegality in convicting the accused appellant only on the basis of testimony of PW- 7. According to him, the evidence of PW- 7 is not inspiring and trustworthy and there are materials on record to suggest that PW- 7 may not be a witness to the occurrence at all. The learned counsel also submits that in the backdrop of the fact that the accused appellant was confined immediately after the occurr ence within the vicinity of the place of occurrence, non-recovery of the weapon of offence, cuts at the very root of the prosecution case as there could have be en no explicable reason as to why the weapon of assault could not have been reco vered and seized. Mr Sarkar submits that PW- 5 who came to the place of occurren ce immediately did not see PW- 7 and it was also not indicated in the FIR that P W- 7 had witnessed the occurrence and these facts would demonstrate that there is doubt as to whether PW- 7 had witnessed the occurrence . The learned counsel placed reliance in the judgment rendered by the Apex Court in Ram Kumar Vs State of UP, reported in AIR 1975 SC 1026 and, more particularly, paragraph- 9 thereo f to support his contention that omission to mention witnessing of the occurre nce by PW 7 in the FIR affected the probability of the case and the same is rel evant under section 11 of the Evidence Act in judging the veracity of the prose cution case. The learned counsel also highlights that PW-13 had indicated the pl ace of occurrence to be the residence of the accused appellant, contrary to what has been stated by other witnesses. According to him, this belies the entire pr osecution case. On the basis of the deficiencies pointed out by him, the learne d Counsel for the petitioner has seriously contended that the prosecution has fa iled to prove the prosecution case beyond reasonable doubt and, therefore, the a ccused appellant is entitled to benefit of doubt. 17. Mr. Z. Kamar, learned , P.P, Assam, on the other hand, supports the judg ment of the learned trial Court. According to him, there is no hard and fast rul e that the evidence of a single eye witness cannot be acted upon to hold an acc used guilty. Mr. Kamar, countering the submissions of the learned counsel appear ing for the accused appellant, submits that the contradictions and discrepancies as pointed out by the learned counsel for the appellant are not material and th e same in no way detracts the veracity of the prosecution case. He submits that there is no reason as to why PW- 7 should be disbelieved. According to him, the prosecution has proved the case beyond reasonable doubt and there is no infirmit y in the judgment of the learned Sessions Judge warranting interference by this Court. 18. The evidence of child witness cannot be rejected per se , but the Court , as a rule of prudence, is required to evaluate such evidence more carefully a nd with greater circumspection because a child is susceptible to be swayed by what others tell him and thus may fall an easy prey to tutoring. If the test imony of a child witness is not shaken in cross-examination and has stood the test of cross- examination and the evidence is otherwise without any infirmity , the prosecution can claim a conviction on the basis of testimony of such a w itness. In Suryanarayana v. State of Karnataka , reported in (2001) 9 SCC 129, the Supreme Court had stated as follows :- 5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four year s of age, is the only solitary eyewitness who was rightly not given the oath. Th e time and place of the occurrence and the attending circumstances of the case s uggest no possibility of there being any other person as an eyewitness. The evid ence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base c onviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of P W 2 being a child witness would require the court to scrutinise her evidence wit h care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a c onviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a mea sure of caution and prudence. Some discrepancies in the statement of a child wit ness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimon y of a child witness who, under the normal circumstances, would like to mix-up w hat the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegatio n regarding tutoring or using the child witness for ulterior purposes of the pro secution, the courts have no option but to rely upon the confidence inspiring te stimony of such witness for the purposes of holding the accused guilty or not 19. PW- 7 was a minor girl of 11 years at the time of the incident. She na rrated the events leading to the assault by the accused appellant. She had also deposed that she had gone to call her mother and had informed her about the inci dent. It is not unusual for a small girl of 11 years to immediately run and go looking for her mother in such a situation and report the incident. PW- 6 con firmed that PW- 7, her daughter, had informed her that the accused appellant ha d stabbed Sajeda to death. It is in this context, the evidence of PW- 5 has to be looked into. Her statement that she had seen no one except Sajeda cannot be torn out of the context. PW- 7 might have left for calling her mother in the mea ntime and she might have noticed PW- 5 coming to the place of occurrence. Theref ore, we do not see any inconsistency or contradiction in between the evidence of PW- 5 and PW- 7. We have noticed that in the FIR, Ext- 3, it had been pointedly stated that the accused appellant had stabbed his second wife, Sajeda , to dea th with a dagger in his father-in-law’s house. The accused appellant has been n amed in the said FIR and so also the fact that the villagers had apprehended t he accused appellant. In such a situation , non- mentioning of the source of inf ormation and / or not indicating who the witnesses were who had witnessed the occurrence, would not, in our view, derail the prosecution case. PW- 13, it is t o be noted , had examined PW- 7 on the date of occurrence. The defence has not been able to, in any way, demolish her evidence. We find nothing on record which can even remotely suggest that PW- 7 was not telling the truth. We would rather hold that the evidence of PW- 7 generates confidence and the same is not tainte d in any manner. 20. True PW- 13 stated in his evidence that the place of occurrence was the residence of the accused Zakir of Bogidara village . At the cost of repetition , we wish to once again place on record that Abdul Baset is also known by the n ame of Zakir. From the statements of the accused appellant under section 313 Cr .P.C, it is seen that the accused appellant is a resident of village No 1 Monak ocha. The evidence of PW- 8, ie , Md Abdul Baset @ Zakir would show that he is a resident of village No 2 Bogidara. In cross-examination , PW-13 stated that h e had found the dead body in the house of Zakir Hussain, the father-in-law of th e accused Zakir . There is no manner of doubt that the place of occurrence was the house of PW- 8, the father-in-law of the accused appellant and it would not be unrealistic or unreasonable to take a view that the word accused had wrong ly appeared in the context of the place of occurrence in view of identical name of the accused and his father-in-law and therefore, it does not materially alte r the prosecution case, which is consistent throughout that the stabbing had tak en place in the house of PW- 8. 21. Dealing with the submission of Mr Sarkar that there was no examination o f neighbouring people regarding tying of the accused appellant and the same cas ts a doubt about the prosecution case, we would respond by saying that apprehens ion of the accused appellant by the neighbouring people is not in doubt and, in fact, PW- 13 as well as the accused appellant in his statement under section 3 13 Cr.P.C have also acknowledged the said fact and, therefore, nothing hinges on the fact that there was no witness examined to prove the apprehension of the ac cused appellant by the villagers. 22. Mr Sarkar would certainly have a point, though , in respect of his ass ertion about non-recovery of the weapon of assault at the place of occurrence. G iven the scenario, which the prosecution has portrayed, it would be reasonable to expect that the weapon of offence should have been found and seized. Non-rec overy of the weapon or not even attempting to find out the weapon only depicts t he superficial nature of investigation conducted. In a given case, and, more par ticularly, in a case which is based on circumstantial evidence, non-recovery of the weapon of assault, may have had an impact on the out come of the guilt or ot herwise of the accused. In this particular case, though the recovery of the weap on of offence would have further strengthened the prosecution case, non-recovery of the same would not weaken the case of the prosecution either, in view of the fact that we have reposed confidence on the evidence of PW- 7. Th e ocular testimony of PW- 7 that the accused appellant had inflicted knife blow s in the chest and abdomen of the deceased finds corroboration in the evidence o f PW- 9, who conducted the post mortem examination on the dead body. Both the i njuries, as found by the doctor, are in the areas as described by PW-7 and these injuries are stated to be penetrating injuries, which a knife or a dagger can inflict. 23. In view of our discussions aforementioned, we find that the prosecution has been able to establish the guilt of the accused beyond reasonable doubt and, as such, there is no merit in this appeal. Consequently, the same is dismissed. 24. Send down the Lower Court Records. 25. Let a copy of the judgment be given to the accused free of cost.