HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH HON BL M IL KUMR L .. SHAMA, ii 38 f 205 Crmnal Appeal No.2 o 0 I Roop Sai Oraon - Vrsus - tate of Chhattisgarh i ""A HN O BLE MR JUSIC TE SN UIL KUMAR SINA H f P 4 2 0 ost for pronouncement of judgment on 0 December, 01 ‘ Sd/— ' ' T‘P. SHARM ' Judge f 42-201 ' 05 0 CORAM. E R SUN A SINHA AND HON BE MR. TP R JJ. e S JUDGMENT FOR CONSIDERATION \ w / A HIGH COURT OF CHHATTISGARH BILASPUR DIVISION BENCH CORAM. HON BLE MR SUNIL KUMAR SINHA AND HON’BLE MR T P SHARMA JJ Criminal Appeal No.238 of 2005 APPELLANT: Roop Sai Oraon, son of ,Lendo Oraon‘ (In Jail) aged 19 years, agriculturist by‘profession: resident of village Belsar Police Station Shankergarh Dlstt Sargula (Chhattlsgarh) Versus " ' RESPONDENT: e I State of Chhattlsgarh through S O Pollce Statlon Shankergarh Dlstt Sargula {Criminal appeal under Section 374 (2)“Criminal Procedure Code 1973} ' “w Present: Mr. J.$. Baraik, counsel for the appellant. ‘ Mr. Neeraj Mehta, Panel Lawyer fOr the State/respondent. JUDGMENT (' a 4» December, 2010) ' The followinq iudqment of the Court was delivered by T.P. Sharma, J: — . 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 17-2-2005 passed by the 3rd Additional SessiOns Judge, Ambikapur, in Sessions Trial No.31 1/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty'for . commission of culpable homicide‘amounting to murder of minor girl Ku. Prabha, aged about 9 years, convicted the appellant under Section 302 ‘ of the,l.P.C. and sentenced him to undergo imprisonment for life and pay V tine of Rs.5,000/—, in default of payment of tine to further undergo R.l. for ’i y ~ ’1“ 1* v n,” one year. 2. Conviction is impugned on the ground that without any iota of evidence, _ i the trial Court has convicted & sentenced the appellant, and thereby I committed illegality. (1’) (2) (3)‘ :; » , - (4) f I ’ ‘ ‘ <5) ' ‘ (6) <7) Right lower leg from thigh and right upper Ilmbs from shoulder I r were absent (8) ~ (9) ’ (10) Ante mortem injury foUnd over neck. Cause of death was asphyXIa as a result of throttling and death was / {I . homiCIdal In nature Parts of the body sealed and sealed clothes of the ‘, ‘ _ deceased were seized Vide Ex.P-7. Finally, FIR was recordedvide EX.P—, Body was decomposed and mutilated. Mouth was sWolIen. _ Front side teeth of both thejaws fell down. Maggots were present on the body; Flush and most parts of the body were eaten by animals. Ribs were visible. 3. _As per case of the prosecution, on 18e5—2004 at about 4 p.m. 9 years’ aged girl Ku. Prabha (since deceased) was present with her friendsKu. Phuleshwari & Ku. Poonam at village Harratoli (Bels’ar), Police Station Shankargarh, District Surguja. The appellant came near Ku. Prabha-and ‘ took her with him onthe pretext that he will return back her on Thursday, ‘ but he did not return/takelback Ku. Prabha to her parents. Thereafter,_w.,,l.. father of Prabha namely Cherhu (PW-1) enquired about his daughter he also met the appellant at Bachwar whom the appellant told that he has left Prabha near Shiv temple of Village Harratoli On 22-5-2004 injured dead body of Ku. Prabha was found near a pond. 'Cherhu (PW-1) —- father of the deceased lodged merg vide Ex.P—1. InquiringOfficer left for the scene of occurrence and after summoning the witnesses vide EXP-7, _ prepared inquest over the dead body of thedeceased vide Ex.P-5. Spot M ‘ ‘ map was prepared by the Inquiring Officer vide Ex.P—'2. Dead body Was sent for autopsy to Community Health Centre Shankargarh vrde Ex P 8 > :Dr Smt J Kujur (PW 5) conducted autopsy vrde ExP 4 and found ‘ followmg symptoms and injuries - [Hairs of head of left side were peeled off. Left femur bone was visible 55 ‘ 9, on the basis of merg. Copy of the FIR was sent to the Judicial Magistrate First Class, Ambikapur vide Ex.P-10. Seized articies were“ , ” r sent for chemical examination to Forensic Science Laboratory, Raipur vide Exs.P—12 & P-13. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was tiled before the Court of Judicial Magistrate First Class, Ambikapur, who committed the case to the Gourt of Sessions, Ambikapur, from where the 3rd Additional Sessions Judge, Ambikapur, received the case on transfer“ l for trial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as twelve witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. By examining Rampat (DW-1) and Manpati (DW—2), the appellant has taken defence that deceased Prabha was insane and she was in the habit‘of" ' going anywhere. Val 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. l _ .r , u l 8. Learned counsel for the appellant vehemently argued that in the present case, conviction of the appellant is substantially based on last seen theory. In order to convict the accused on the basis of last seen theory, g the prosecution is required to prove the fact that the deceased was seen last time alive in the company of the accused and thereafter within short V time, the deceased was found dead that too as a result of injuries. However, in the present case, as per the case of the prosecution, the deceased was seen last time alive with the appellant on 18—5-2004 at 4 1i p.m. and dead body of the deceased was found on 22-5-2004. Time gap between the deceased seen alive with the appellant and recovery‘of“ , n dead body of the deceased is not so short and, therefore, the appellant is not under obligation to offer any explanation that as to when he parted the company of the deceased. Evidence adduced on behalf of the prosecution is not sufficient for conviction of the appellant. 9. On the other hand, learned.State counsel vehemently opposed the appeal .and submitted that in the present case, the deceased was not seen in the company of the appellant last time on 18-5-2004, but thew i ’ appellant has kidnapped 9 years’ aged child on 18-5-2004 from the lawful possession of her guardian i.e. Cherhu (PW—1). However, the appellant has not returned the child to her parents and after nve days, the dead body of the child was found in injured condition. Conviction of the appellant is not based on last seen theory, but conviction is based on the fact that the appellant has taken the deceased by using force and thereafter, he did not return the deceased or the deceased was not found alive. This circumstance alone is sumcient for drawing inference that only the appellant has committed the offence of culpable homicide amounting to murder of deceased Prabha. i 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11.ln the present case, the appellant has not substantially disputed the /\ homicidal death of deceased Prabha, othenNise also same is established' V by the evidence of Dr. Smt. J. Kujur (PW-5) and autopsy report Ex.P-4 which reveal that cause of death was asphyxna as a result of throttllng and death was homlc1dal In nature 12 As regards comphcrty of the appellant m the crime In question conVIctIon Is based on Circumstantlal evrdence In case of conVIctIon based on Circumstantial eVIdence as held by the Supreme Court in the matter of , C Changa Reddy v State of AP1 the prosecution Is reqUIred to adduce eVIdence and such eVIdence must satisfy the followmg tests ,- (1) the Circumstances from which an mference of gurlt Is sought to be drawn must be cogently and frrmly establlshed (2) those Circumstances should of a defnite tendency unerringly pomting towards the gwlt of the accused, ' (3)the circumstances taken cumulatively should form a chain so _ complete that there is no escape from the concluSIon that Within all human probability the crime was committed by the accused and none else and _ y , (4) the Circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypotheSis I H W“ .xi W. v than that of the gwlt of the accused and such ewdence should not only be conSistent With the guilt of the accused but should be _ inconSistent With his innocence V y 13 ln the present case by examining Ku Poonam (PW 2) & Pano (PW-7) the prosecution has tried to establish the fact that on 18 5 2004 the appellant has taken 9 years aged girl Prabha With him and thereafter Prabha was not found alive. Ku. Poonam (PW-2) is child Witness. Child Witness is also a competent Witness. .As per the provisions, of Section . _118 of the Indian Evidence Act 1872' in case of child Witness frst of all; V the Court is required to satisfy itself of the fact that the Witness understands his duty to speak truth and is able to rationally answer the questions put to him and then the Court should examine the child Witness \ iAiR 1996 SC 3390 : (1996) 1o scc 193._ i" , ’14.While dealing with the question of reliability of the evidence of 5 years’ aged child wit/ness; the Supreme Court in the matter of Suresh v. State of U.P.2 has held that the sole eye-witness was a five-year old'son of the deceased. But there were, unimpeachable and the most etoquent matters on.the record which lend an unfailing assurance that the child ‘ . 6 V ' ' l ~e wwv‘ pgn‘ rwas a witness of truth, not a witness of imagination as most children of V ‘ that age generally are. ln the matter of Dhanraj and others v State of Maharashtra the Supreme Court has held that as a matter of fact an 8"“ standard student in these days acqurres sufficient understanding to I perceive the facts and to narrate the same While dealing With same Iquestion in the matter of Suryanarayana v State of Karnataka it has V , been held by the Supreme Court that the eVIdence of the child witness is :not reqUIred to 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 convmced about the quality thereto and reliability, the Court can record conViction based thereon In the matter of Rameshwar Slo Kalyan ‘ F Singh v The State of Rajasthan the Supreme Court has cast a duty on Court that it is deSirable that Judges and Magistrates should alwayst i i ‘t‘ ‘ record their opinion that the child understands the duty of speaking the I truth and state reasons for such concluSIon While dealing With the question of eVIdentiary value of child Witness in the matter of ShiVji V' Genu Mohite v State of Maharashtra6 the Supreme Court has held Ithat where a sole eyeWItness isteenager his evidence has to be ‘ a v ‘ I scrutinized With care and caution if he is able to understand the test of )1‘ cross examination successfully and there is no other infirmity it should ’— j a not be discarded lightly. . x V MA, i - 2AIR1981 AIR 2002 sc1122 sc 3302 NA .v ‘ ‘ ' r ‘ ‘ I, L > ‘ AIR(39)1952 (2001)93cc129 sc 54 a ' ' ' ' A v v ( t V * AIR 1973 sc 55 15.In the present case, before recording evidence, the Court has asked questions to Ku. Poonam (PW-2) and after satisfying itself of the fact that the witness understands the duty to speak truth and is able to rationally answer the questions put to her, it has examined her. Ku. Poonam (PW- 2) has deposed in her evidence that on the fateful day when Ku. Prabha was playing with Chinthi & Muniya, the appellant came and tried to take“ Ku. Prabha with him, when Ku. Prabha ran away, the appellant chased her and caught hold of her, and finally, by keeping her on his back, the appellant took her from there. When this witness opposed the accused, the appellant told her that he will return Ku. Prabha on Thursday. Ku. Prabha did not return on Thursday and thereafter, she was found dead. Defence has cross-examined this witness at length. In para 4 of her cross-examination, she has stated that at the time of incident she was playing with Prabha, Chinthi & Muniya. She has denied the suggestion that the appellant had not taken Prabha. ln para 6 of her cross- examination she has further denied the suggestion that Prabha was insane. She has specifically deposed in her evidence that the appellant had taken Prabha with him while Prabha was pla‘ying. l l 16. Pano (PW-7) has deposed in her evidence that while she was coming to Harratoli from market along with her husband Rampat and passing through Kerakachar river, the appellant was taking Prabha with him by keeping her on his back and on being asked, the appellant did not answer anything, but Prabha told her that her dada i.e. the appellant is taking her to village Bachwar. Thereafter, on Saturday Prabha was found dead. Defence has cross-examined this witness at length, but has not been able to elicit anything in her cross-examination to discredit her testimony. v fr. .r-Fm r w, 1‘ '3 17.Father of deceased Prabha i.e. Cherhu (PW-1) has deposed in his ‘ r evidence that on the date of incident he was informed by Mahendra that the appellant has taken his daughter while she was playing with other children and that the appellant has taken her by keeping her on his back. This witness has further stated in his evidence that he came to know that the appellant has promised to return Prabha on Thursday. But the appellant did not return back Prabha on which he made search of Prabha, he visited village Bachwar where the appellant was present in his in—Iaw’s house, he asked the appellant whereupon the appellant told“ ‘ him that he had left Prabha near Shiv temple at Harratoli. But Prabha was not found and her dead body was found near a pond. Defence has cross-examined this witness also in detail, but this witness has specifically deposed in his evidence that the appellant has taken his daughter and even on Saturday, the appellant told him that he had left Prabha near the temple. 18.Ku. Poonam (PW-2) — child witness of 15 years’ age has substantially‘ ' corroborated the case of the prosecution. She has rationally answered l the questions put to her. Her evidence inspires confidence and it is trustworthy. Her evidence alone is sufdcient for drawing inference that the appellant has forcefully taken Prabha with him on 18—5—2004 which has been substantially corroborated by the evidence of Cherhu (PW—1) & Pano (PW-7). 19.This is not the case where the appellant & Prabha (since deceased)“ ' i were found together and thereafter, Prabha was found dead, but this is a case in which the appellant has forcefully taken Prabha with him. The appellant is relative of Prabha. The appellant has not returned back Prabha but the dead body of Prabha was found in injured condition. ‘ t Defence has examined Rampat (DW-1) and Manpati (DW-2) who have f‘ I if we v w r: it deposed relating to insanity of Prabha, but same is of no use in support of defence. Un-rebutted evidence of the prosecution witnesses reveals that the appellant has forcefully taken Prabha with him. Deceased Prabha was forcefully taken by the appellant on 18-5-2004 and her dead k' body was found on 22-5-2004. Prabha was under the custody of the appellant. The appellant was under obligation to explain as to when Prabha died, how Prabha died, who has caused injuries to Prabha and when she left his company, but the appellant has not offered any R explanation. lf these circumstances are considered together, the only inference that the appellant has committed culpable homicide amounting l ! . to murder of Prabha and that none else has committed her murder, ) l would be possible. These circumstances are also sufficient for excluding the possibility of innocence of the appellant. Evidence adduced on behalf of the prosecution satisfy the test necessary as held’by the Supreme Court in the matter of C. Changa Reddy (supra) and is sufficient for drawing definite conclusion that only the appellant has ‘l committed culpable homicide amounting to murder of Prabha. 20.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant as t aforementioned. On close scrutiny of evidence, we do not find any l l l illegality in conviction and sentences imposed upon the appellant.‘ , 21.Consequently, the appeal is devoid of merit, same is liable to be ) . N dismissed and it an“ is hereby dismissed. \ ““4 l sw. Sd/~ sUNIL KUMAR T.p.5I-1ARMA 1 9 SINHA , Judge Judge 7‘, t ,, Wag 04 42-2010 i E Soma ‘