IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 961 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and Hon'ble MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO @ MAHMAD @ BATUK KARIMBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 961 of 1992 MR BS SUPEHIA for Petitioner No. 1 MR DP JOSHI, APP for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE AKSHAY H.MEHTA Date of decision: 26/09/2001 ORAL JUDGEMENT (Per : MR.JUSTICE J.M.PANCHAL) In this appeal, which is filed under section 374(2) of the Code of Criminal Procedure, 1973, the appellant has challenged legality of judgment dated September 30, 1992 rendered by the learned Additional Sessions Judge, Rajkot, in Sessions Case No.23/92, by which he is convicted of the offences punishable under section 302 of the Indian Penal Code as well as section 135 of the Bombay Police Act and punished with imprisonment for life and fine of Rs. 1000/- i/d. R.I. for three months. 2. Briefly stated the case of the prosecution is as under :- Dhirajlal Nanalal Mehta, PW.13, Exh.33 was serving as a postman at village Sapar, Taluka : Sayala, District : Surendranagar. He was married to Nirmalaben who was original accused no.2 in the case. During the subsistence of marriage, Nirmalaben had given birth to a girl child named Sangita and all the three were residing together. The name of neighbour of Dhirajlal was Raningbhai Jaitabhai Karpada,who was a Kathi Darbar. Neighbour Raningbhai was residing with one Mohammedan woman named Babybai, who was mother of a son and a daughter, as Ranigbhai was in love with Babybai. Rakhtabibi was residing in the house of Raningbhai with her children. The record shows that the original accused no.2 was of loose character and had relations with deceased Bhikhubhai Barot of Surendranagar town who was visiting her in absence of her husband. The name of brother of Babybai is Mohmed Karim @ Batuk, who is the present appellant and he was coming off and on to the house of her sister situated at village Sapar. 3. The appellant after coming into contact with the original accused no.2, had developed relations with her and enticed away married wife of witness Dhirajlal in the company of her minor daughter. From village Sapar, wife of Dhirajlal in company of the appellant and her minor daughter had come to Chotila and from Chotila they had gone to village Jamjodhpur. At village Jamjodhpur, all the three had stayed for about two months with wife and daughters of one Karimbhai. It may be stated that during his stay at village Jamjodhpur, the appellant was doing labour work of excavating land and was also taking wife of Dhirajlal Mehta with him for doing labour work. At village Jamjodhpur, wife of Dhirajlal had learnt that in search of her and her daughter, her husband and her brother-in-law were likely to come to village Jamjodhpur.Therefore, they had left village Jamjodhpur and gone to village Satadhar. All the three were wondering from place to place and had ultimately, come to Rajkot City. At Rajkot City, they had stayed in a caravanserai. After staying at caravanserai for some days, the appellant had started living in a rented accommodation situated at Chunarvad Chowk of Rajkot City with the original accused no.2 and her daughter. Meanwhile the husband of original accused no.2 had learnt that his wife and daughter were staying with the appellant in a house situated at Chunarvad Chowk, Rajkot City and apprehending that the husband of the original accused no.2 would come to the house situated at Chunarwad Chowk, all the three had left the said house and the original accused no.2 who was wife of witness Dhirajlal and his daughter were begging and feeding themselves. One day, original accused no.2 proposed to her daughter that they need not ruin their lives and that they should return to village Sapar where her husband was staying. Accordingly, original accused no.2 in the company of her minor daughter had returned to village Sapar where witness Dhirajlal was serving as a postman. However, Dhirajlal had exhibited sheer contempt for original accused no.2 and not asked her any question as to where she was all the time before her return to village Sapar. After a week the appellant had come to village Sapar and proposed to original accused no.2 to go with him. Therefore, the original accused no.2 had left her matrimonial home in the company of her minor daughter and gone to Surendranagar with the appellant. At Surendranagar town also they had stayed in a caravanserai and had met deceased Bhikhabhai. The appellant had persuaded deceased Bhikhabhai to go with him and Bhikhabhai had accompanied the appellant as well as accused no.2 and her minor daughter after packing his clothes in a bag. From Surendranagar, all the four had reached Rajkot by train on October 29, 1991 and though an attempt was made by the deceased, they could not get any accommodation in any caravanserai. Therefore, they had gone towards Khodiar Temple situated at the base of the hill. All the four had gone to sleep and at dawn, the appellant had inflicted pipe blows on the head of the deceased and killed him. Thereafter the appellant in the company of original accused no.2 and minor child had left the said place and the appellant had thrown the pipe which he had used to kill the deceased in hay. According to the prosecution, the appellant had killed deceased Bhikhabhai because the deceased had illicit relations with the original accused no.2. After leaving the place of the incident, the three had come to Junagadh where the appellant had given clothes of the deceased to a mendicant. At Junagadh, the three had stayed in a caravanserai and from Junagadh they had gone to village Bilkha. At village Bilkha, father of the appellant was staying and, therefore, all the three had stayed there for about 15 to 20 days. Thereafter again these three persons had come to Junagadh town where the original accused no.2 and minor child were made to beg. At Junagath, the appellant had quarrelled with some one and, therefore, original accused no.2 who was wife of witness Dhirajlal, had separated from him and started staying at 'Shishu Mangal', which is an institution for destitute ladies and children, with her minor daughter. At Shishu-Mangal also the appellant had continued to visit the original accused no.2 and, therefore, pursuant to the complaint made by other inmates, those who were in the management of Shishu-Mangal had driven away accused no.2 and her minor daughter from the said institution. 4. Meanwhile, the unidentified dead body of the deceased Bhikhabhai was noticed by corporator Karmabhai Maldhari of Rajkot city on October 31, 1991 and he had disclosed the said fact on telephone to police officer incharge of 'B' Division Police Station, Rajkot city. Necessary entry was made in the register maintained at the police station and further investigation into the case was handed over to P.S.I. Gulabrao Viralal Pavar. Mr. Pavar had gone to the place where the dead body was lying and had held inquest on the dead body in presence of panch witnesses. Mr. Pavar had also seized blood stained earth from the spot as well as other articles belonging to the deceased which were found on the spot. Mr. Pavar had lodged complaint with 'B' Division Police Station, which was reduced into writing by Dolatsinh Bhupatsinh Raol, who was incharge Police Inspector of the said Police Station. Because of the articles which were recovered from the dead body of the deceased, the deceased was identified as Bhikhabhai of Surendranagar town and his relatives were contacted. The brother of the deceased i.e. Rajubhai had identified the dead body kept in post mortem room as that of his brother Bhikhabhai and further investigation into the case was made by Indrasinh Shitalsinh Bhadoria, who was Police Inspector of 'B' Division Police Station. The interrogation of brother of the deceased revealed that the deceased had left his house in the company of the appellant. The appellant was arrested on November 15, 1991 under a panchnama. Further pursuant to voluntary disclosure made by the appellant, the bed-sheet used by the appellant for the purpose of sleeping as well as iron pipe with which he had given blows to the deceased, were discovered in presence of independent witnesses. The incriminating articles seized were found stained with blood and were, therefore, sent for analysis and report of serologist was obtained. On conclusion of investigation, the appellant and original accused no.2 were chargesheeted in the Court of learned Judicial Magistrate, First Class, Rajkot of the offences punishable under sections 302 & 114 of the Indian Penal Code and sections 37(1) & 135 of the Bombay Police Act. As the offence punishable under section 302 I.P.C. is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Rajkot for trial, where it was numbered as Sessions Case No. 23/92. 5. The charge at Exh.2 was framed by the learned Additional Sessions Judge, Rajkot against the appellant and original accused no.2 of the offence punishable under section 302 read with section 114 I.P.C. as well as sections 37(1) & 135 of the Bombay Police Act. We may state that the appellant and original accused no.2 were not in a position to engage their own counsel for the purpose of defending themselves and, therefore, the learned Judge before framing the charge, by an order dated July 1, 1992 had appointed Shri N.S.Manek, advocate of Rajkot to defend the appellant and original accused no.2. The charge was read over and explained to the appellant as well as original accused no.2, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined; (1) Jayantilal Dhirajlal Kainaya, PW.1,Exh.8, (2) Kirtibhai Jamnadas, PW.2 Exh.11, (3) Rajubhai Naranbhai, PW.3, Exh.12, (4) Labhuben Bhikhabhai, PW.4, Exh.14, (5) Galalben Panchabhai PW.5, Exh.15, (6) Dhirubhai Kalubhai Barot, PW.6 Exh.16, (7) Kanubhai Bavabhai Vasava, PW.8 Exh.18, (8) Child witness Sangita Dhirajlal PW.9 Exh.24, (9) Harshadkumar Kashirambhai Raval, PW.10 Exh.25, (10) Umeshgiri Maharajgiri,PW.11 Exh.27, (11) Manishanker Gokaldas Joshi, PW.12 Exh.29, (12) Dhirajlal Nanalal Mehta, PW.13 Exh.33, (13) Karshan Vikabhai, PW.14 Exh.34, (14) Rekhaben Parshotambhai, PW.15 Exh.35, (15) Vasantrai Dolatram Bhatt, PW.16, Exh.36, (16) Jaysukhlal Narsidas, PW.17 Exh.38, (17) Arif Harunbhai,PW.18, Exh.40, (18) Dhanji Malabhai,PW.19, Exh.42, (19) Bhagwanji Bachubhai, PW.20 Exh.44, (20) Kanubhai Ghelabhai,PW.21, Exh.45, (21) Meghji Manji, PW.22 Exh.47, (22) Dr. Bhavin Sharatchandra Kothari, PW.23 Exh.49, (23) Malikshah Alibhai, PW.24 Exh.63, (24) Ramesh Bijalbhai Koli, PW.25 Exh.64, (25) Bhanubhai Jagabhai, PW.26 Exh.66, (26) Dhirajlal Narshibhai, PW.27 Exh.69, (27) Premji Mavjibhai, PW.28 Exh.71, (28) Kishor Bachubhai Solanki, PW.29 Exh.72, (29) Jethabhai Virabhai,PW.30 Exh.73, (30) Abed Ali Sidik Miya, PW.31 Exh.74, (31) Chhelshanker Narbheram Trivedi, PW.32 Exh.76, (32) Nathalal Jadav, PW.33 Exh.78, (33) Naran Jetha, PW.34 Exh.80, (34) Dolatsinh Bhupatsinh Raolji, PW.35 Exh.82, (35) Indrasinh Shitalsinh Bhadoria, PW.36 Exh.86, (36) Pragmal Bhagwanji Rathod, PW.37 Exh.101 and (37) Gulabrao Viralal Pavar, PW.38 Exh.106, to prove its case against the accused. The prosecution also produced documentary evidence, such as, notification issued by the District Magistrate under the provisions of the Bombay Police Act, inquest held on the dead body of the deceased, panchnama of place of occurrence, panchnama regarding discovery of articles made pursuant to voluntary disclosure made by the appellant, postmortem notes of the deceased prepared by Dr.Kothari, report of Serologist, complaint filed by P.S.I. Mr. Pavar, panchnama prepared during identification parade where the appellant was identified by witness Manishanker Gokaldas Joshi as the person who had come to Shri Ratanshi Mulji Dharmashala,situated at Rajkot with the deceased on October 29, 1991 and who had not permitted the appellant and others to stay at his Dharmashala etc. in support of its case against the accused. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the appellant as well as original accused no.2 the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statement as required by section 313 of the Code of Criminal Procedure. In their further statement, both the accused claimed that the case of prosecution against them was false, but did not examine any witness in support of their defence. 6. On appreciation of evidence adduced by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased Bhikhabhai Naranbhai had died a homicidal death. The learned Judge relied upon the evidence of child witness Sangita Dhirajlal and held that it was proved by the prosecution that the appellant had caused death of the deceased on October 29, 1991 by inflicting iron pipe blows on his head and was liable to be convicted of the offence punishable under section 302 I.P.C. The learned Judge also relied upon the circumstantial evidence proved by the prosecution for the purpose of recording conviction of the appellant under section 302 I.P.C. The learned Judge further held that the appellant had committed breach of notification issued under the provisions of the Bombay Police Act and, therefore, was liable to be convicted under section 135 of the said Act. The learned Judge deduced that no reliable evidence was led by the prosecution to prove that the original accused no.2 i.e. wife of witness Dhirajlal had abetted the offences committed by the appellant and, therefore, she was entitled to acquittal. In view of the above referred to findings, the learned Judge has convicted the appellant of the offences punishable under section 302 I.P.C. as well as section 135 of the Bombay Police Act and imposed punishment referred to above, by judgment and order dated September 30, 1992, which has given rise to the present appeal. 7. After taking us through the entire evidence on record, the only submission made by Mr. B.S.Supehia, learned counsel for the appellant is that the appellant had seen the deceased and original accused no.2 in a compromising position and as there was grave and sudden provocation from the deceased, the offence committed by the appellant would be punishable under section 304 Part-I of the Indian Penal Code and, therefore, conviction of the appellant should be altered to one under Part-I of section 304 of the Indian Penal Code and punishment of 8 years which the appellant has already undergone should be imposed on him for the said offence. 8. As against that, Mr. D.P.Joshi, learned A.P.P. submitted that the evidence of minor witness Sangita Dhirubhai read with medical evidence on record as well as other circumstances proved by the prosecution clearly establish that the appellant had caused death of the deceased with the intention of causing his death and as the death of the deceased was caused with the intention of causing such bodily injuries which were sufficient in the ordinary course of nature to cause death, the offence committed by the appellant would be one under section 302 I.P.C. and not under Part-I of section 304 I.P.C. as contended by the learned counsel for the appellant. 9. We have heard the learned counsel for the parties at length and though only one submission is advanced on behalf of the appellant, we have reappreciated the whole evidence on record to ascertain whether conviction of the appellant recorded by the learned Judge of the Trial Court is correct or not. The finding recorded by the learned Judge of the Trial Court to the effect that it is proved by the prosecution beyond doubt that the deceased had died a homicidal death is not challenged at all. Even otherwise, we find that the evidence of Dr. Bhavin Kothari PW.23 Exh.49 establishes beyond reasonable doubt that the deceased had died a homicidal death. The doctor has mentioned in detail the external as well as internal injuries sustained by the deceased which were noticed by him while performing post mortem examination of the dead body of the deceased. According to the doctor, the cause of death of the deceased was coma resulting from the injury to the brain, intra crannial haemetoma and the fracture of the skull. The doctor stands amply corroborated by contemporary record namely contents of the post mortem notes. Further, the injuries sustained by the deceased are also noted in inquest report prepared in presence of panch witnesses. Thus, the finding that the deceased had died a homicidal death being eminently just is hereby upheld. We may state that the prosecution has led direct evidence of child witness Sangita Dhirubhai to establish case against the appellant and has also adduced circumstantial evidence to prove its case against the appellant. We therefore, propose to discuss first of all the evidence of child witness Sangita PW.9 Exh.24. Before discussing the evidence of child witness Sangita, it would be advantageous to refer to law relating to child witness. Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this section, all persons are competent to testify,unless they are, in the opinion of the Court,(a) unable to understand the questions put to them, or (b) to give rational answers to those questions,owing to (i) tender years,(ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers during lucid period, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of his age. A child of tender years is not, by reason of his youth, as a matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of section 118 of the Evidence Act and for this purpose, preliminary inquiry should beheld. It is the duty of the Court to ascertain in the best way,which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the Court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the Judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. However, absence of recording of such an opinion does not make evidence of a child witness inadmissible. Opinion of the Court in this behalf can be gathered by the Appellate Court from circumstances appearing in the case if there is no certificate by the learned Trial Judge. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in the positive, the Court will not, as a rule of prudence, convict the accused on a murder charge on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time,if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities,it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth. In the case of MOHAMED SUGAL ESA MAMASAN RER ALALAH v. THE KING, AIR 1946 Privy Council, 3, it is held as under : "In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But, in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence, a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law." 10. Having noticed the principles, we would discuss the evidence of child witness Sangita Dhirubhai. Her evidence before the Court was recorded on August 11, 1992. The learned Judge in order to satisfy himself that the child witness understood the duty to tell truth and was in a position to give rational answers, had put certain questions to her. In answer to the first question, the child witness replied that her name was 'Sangita' and that name of her father was 'Dhirubhai'; whereas name of her mother was 'Nirmalaben' and that her father was residing at village Sapar. The learned Judge wanted to know from the child witness as to where Nirmalaben was and the child witness stated that Nirmalaben was sitting in the Court Room. In answer to question as to where she was staying, the child witness stated that she was staying at Kathiavad Balashram. The learned Judge wanted to know from the child witness as to what she was doing at Balashram and the child witness stated that they are being educated there. In answer to another question, the child witness replied that she was offering prayer daily. Further in answer to question as to what would happen if somebody tells a lie, the child witness replied that the person telling lie would commit sin. Yet in answer to another question, the child witness replied that earlier she was studying at village Sapar and in answer to the last question, the witness replied that Sapar forms part of Surendranagar district. The learned Judge has reproduced the questions put to child witness as well as answers given by her thereto. After making preliminary inquiry, the learned Judge had made a note mentioning that the child witness understood the sanctity of oath and after making the note, oath was administered