Crl. Appeal No.103-DB of 1999 -1- ... IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH … Crl. Appeal No.103-DB of 1999 Date of Decision: 17 th March, 2008 Anil Kumar . … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S. D. ANAND Present:- Mr. Aman Chaudhary, Advocate for the appellant. Mr. S.S. Pattar, Senior Deputy Advocate General, Haryana for the respondent. … S.D. ANAND, J. The present appeal preferred by Anil Kumar and Sunil Kumar appellants would be adjudicated upon only vis-à-vis appellant Anil Kumar in view of the conceded position that appellant Sunil Kumar died during the pendency of the appeal. Appeal qua Sunil Kumar shall be treated as having abated. The expression ‘appellant’ used hereinafter would be deemed to denote only appellant Anil Kumar. The learned Trial Judge convicted the appellant for an offence under Section 460 of the Indian Penal Code. The prosecution allegations, upheld at the trial, were that Ajit Singh deceased used to reside in a house at village Kundli, along with members of his family including his son Jagdish, grand daughters Neelam, Puja and another and also grandson Crl. Appeal No.103-DB of 1999 -2- ... namely, Mahesh. PW 6 Randhir Singh resides in a house adjacent to the house of Ajit Singh deceased. His son Jagdish is an employee with the ITBP and was posted at Delhi. His wife had pre-deceased him. PW 8 Satish Kumar, another son of Ajit Singh, resides in village Nahri and earns his livelihood by running a Tea-stall at village Ghewra. On the relevant night, the appellant (and the deceased appellant) went over to the house of Ajit Singh and demanded that he part with Karras and ear rings at that point of time. On his refusal to oblige, the appellant and the deceased appellant broke a glass bottle and caused injuries to Ajit Singh. One of them was armed with a knife as well with which injuries were caused to Ajit Singh, whose dead body was, thereafter, dragged to the kitchen. Thereafter, the appellant and the deceased appellant broke open an iron box and escaped with the booty. The occurrence was witnessed by PW 9 Neelam daughter of Jagdish PW, an eight year old student of third standard at the Gian Middle School. She narrated the facts to her uncles Satish Kumar and Ramesh Chand. Anil, the maternal grand child of Ajit Singh brought the facts to the notice of PW 8 Satish Kumar. The occurrence was notified to PW 6 Randhir Singh by Neelam PW9 on 4.11.1997 at about 6 AM when he want over to his shop, as per the already followed routine. The learned Trial Judge placed implicit reliance upon the presentation made by PW6 Randhir Singh, PW7 Jagdish, PW 8 Satish Kumar and PW9 Neelam. The learned Trial Judge also placed reliance upon the investigation conducted by PW 10 ASI Ram Kishan and PW 11 Inspector Ram Kishan. Crl. Appeal No.103-DB of 1999 -3- ... We have heard learned counsel for the parties and perused the record. The appeal deserves outright allowance. The reasons therefor are given hereunder. The impugned occurrence had been witnessed only by PW9 Neelam. Her's is the only substantive testimony in that context. The testimony of PW 6 Randhir Singh, PW7 Jagdish and PW8 Satish Kumar is derivative in character inasmuch none of them had himself witnessed the impugned crime. The adjudicatory exercise has, thus, to be essentially confined to the evidentiary value to be attached to the testimony of Neelam PW9. It requires notice, at the very outset, that she had to concede under the stress of cross-examination that “My father and police official have told me what I am to state in the court”. The only inference which can be culled out from it is that she had been tutored by her father and police officials to make a statement before the Court. As already noticed, PW9 Neelam is a child of 8 years who is on the rolls of Gian Model School and is studying in the third standard. Apart from the opening line (“It is better to speak truth than lie”) of her statement, there is no finding whatsoever at the hands of the learned Trial Judge to the effect that she is a competent child witness. It was incumbent upon the learned Trial Judge to proceed in the first instance to put certain questions to the child witness with a view to be able to find out whether she was a competent witness or not. The learned Trial Judge could not have proceeded to record her statement on oath without having satisfied himself about the above indicated aspect and before recording a precise finding that the child witness was competent to Crl. Appeal No.103-DB of 1999 -4- ... understand the sanctity of oath and make a deposition in the Court. Her testimony does not inspire confidence because she wants the Court to believe that inspite of her having started crying, none from the neighbourhood came to the spot and that, thereafter, she went to sleep. In her earlier part of her cross-examination, she had conceded that her brother Mahesh and sister Puja were present in the house at the time of the occurrence, though both are younger to her. It is also in her statement that all of them used to sleep in her room with their grandfather Ajit Singh, and that Mahesh and another sister of PW9 Neelam had also got up when the appellant attacked Ajit Singh. That statement of her's does not appeal to reason because she would want the Court to believe that after the impugned occurrence had taken place, she and other aforementioned children went to sleep. It does not appeal to reason that the cries made by three children did not attract anyone in the vicinity. The most significant part of the prosecution plea is PW4 Dr. S.K. Gosain categorically testified that the injuries found on the dead body of Ajit Singh could not have been caused with Chhuri Ex.P4. Insofar as the broken bottle is concerned, it is common ground that it had not been recovered in the course of investigation by the police. The foregoing discussion would indicate that there is medical opinion to the effect that the injuries found on the dead body could not have been caused by Chhuri which was got recovered by appellant Anil Kumar in pursuance of a disclosure statement. The other weapon of offence i.e. broken bottle is not even averred to have been recovered from Crl. Appeal No.103-DB of 1999 -5- ... the spot or in pursuance of any disclosure statement. There also is no averment that the appellant made any disclosure statement or led to the recovery of the bottle aforementioned in pursuance thereof. The Trial Judge nowhere recorded a finding that PW9 Neelam was a competent child witness. A number of factual inaccuracies have been noticed in her statement. The testimony of other witnesses, forming the ocular segment, is only derivative in character as they had not witnessed the impugned crime. We would, accordingly, give the benefit of doubt to appellant Anil Kumar and allow the appeal preferred by him. ( S. D. ANAND ) JUDGE March 17,2008. ( ADARSH KUMAR GOEL ) JUDGE sn