m HIGH COURT OF CHHATT1SGARH AT BILASPUR DIVISION BENCH_: Coram: HON BLE MR.T.P.SHARMA & HON'BLE MR.R.L.JHANWAR. JJ. Appeltant (In Jail) Respondent Criminal Appeal No.642 of 2004 Jharu Ram Binjhawar Aged 27 Years S/o Mohit Ram Binjhavrar R/b VUI. Jamdarha, P.S. Basna District h4ahasamund ^3.Q^ , Versus State of C.G. Through P.S. Basna District Mahasamund(CG.) ! (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- . Mrs.Shipra Vishwas, counsel for the appellant. MrAshish Shukla, Govt.Advocate for the State. JUDQMENT (Passed on 22"°September, 2010) T.P.Sharma, J.:- 1. Chaitenge in this appeal is to the judgment of convtotion & order of sentence dated 10.6.2004 passed by ttie Seeond Additiona! Sessions Judge, Mahasamund, in Sessions Trial No.18C004, whereby & whereunder leamed Second Additional Sessions Judge after hotding thc appellant guilt for commission of offence of cufpable homteside of 7 yeare aged daughter Ku.Mohini @ raiekli (Sincs deceased) amounting to murder convicted under Section 302 ofthe i.P.C. and sentenced him to undergo imprisonmentfor life and to pay fine of Rs.1000/-, in default of payment of fine to further undergo R.l.forfixmonths. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committsd illegality. 3. Case of the prosecution, in brisf, is that wi the feteful day of 16.11.2003 at about 5 p.m. unfortunate daughter of ths appellant Ku.Mohini @ Dhekli, aged about 7 years wss playing with her coileague Sirmoti @ Aangan Moti (PW-5), child witness aged about 6 yesrs, the appellant came and assautted his daughter Mohini @ Dhekii by axe and caused injuries over her neck, she died ..y ^ ^ instantaneously. Being asked by the persons gathered on the spot, the appetlant made extra judicial confession that for the shake of God, he has scarified of his daughter (sn^S tq??T ^T ^gSfT t^? ^T f^n). Kashlram (PW-1) went to the Police Station and todged the F.I.R. vide Ex.P/2. Merg inUmation was recorded vide Ex.P/1. Inv^tigatiag ofBcer proceededfor the scene of occurrence and after summoning the witnesses vide Ex.P/8, inquest over dead body of Mohini @ Dhekli was prspared vide Ex.P/7. Spot'map was prepared by investigating officer vids Ex.P/3. Bloodstainsd and piain soit were recovered from the spot atong with one mala vlde Ex.P/4. Dead bocty was sent for autopsy to Community Health Centre, Basna vide E%.P/14A. Autopsywas conducted by Dr.SmUayashree Sahu (PW-10) vide Ex.P/14 and found one incised wound over neck, neck was found cut through and through and oniy smali part was attached and ail Sntemal orgens of ttie ^ieck ware found eut. Death was homteidal in nature. Bfoodsteined axe was seized from the accussd vide Ex.P/5. Clothes of the accused were ssized vkie Ex.P/6. Patwari has atso prepared the spot map vide Ex.P/10. Sealed clothes of the deeeased after autopsy were seized vide Ex.P/1 5. Artteiles were sent for chemicat examination vide Ex.P/16. 4. Statements of thewitnessss ware recorded under SecUon 161 of ttie Cr.P.C. and after completion of investigation, charge sheetwas filed before the Court of Judicial Magistrate First Ctass, Saraipaii, who in tum committed the case to the Court of Sessions, Raipur, from where tearned Second Additional Sessions Judge, Mahasamunci received the case on fransfer for trial. 5. in order to prove the guilt of the accused/appellant, the prosecution has examined as many as 11 wttnesses. Statement <rf ttie acmised/appetlant was r^orded under Sectton 313 of the Code whers he ctenied the circumstances appearing against him and pteaded innocence and fatse im^icaUon in the crime in quesUon. 6. After providing opportunity of hearing to the partiss, leamad Sacond Additiona! Sessions Judge convicted & sentenced the appellant as aftn'emenSoned. 7. We have heard teamed counsel for the parties, perused the judgment impugned and record of fte trial Court. 8. Lsamed counsel for the appellant vehemently argued that in Ihe presant case, convtction is substantialty based on the evidence of Sirmoti @ Aangan MoU (PW-5) 6 yeare a^d child w'rtness whose evictwce ctoes not inspire confidence and tmslworthy. There are material contracttons in the evkienceof Sirmoti @ fc.«i< Aangan Moti (PW-5), evidsnce of investigaUr^ officsr K.L.Tandon (PW-11) arrt evidence of Psrtwari who has prepared spot map. te per evictence ef Sirmott ©AanganMoti (PW-^, the appellanttook Ku.Mohini @ Dhekli near stone and after keeping her on stone, the appellant has caused injuries, but no such stone or bloodstained stone was found near the place of irwidsntwhich shcws ttiat Sirmoti @ Aangan MoU (PW-5) child wttness has not seen ths inGidentand she is only tutor wibiess. Other evidence adduced on behalf of th®prosscution is also not reliable for conviction of the appeltant tor brutal murderof his own ehild. 9. On Uie other hand, leamed State counsal supported the judgmant impugned and argued that the prosecutton has adduced sufRcient svidence to convict the appellant in ttie crime in quesUon. Evidence of Sirmoti @ Aangan Moii (PW-5) is well corroborated by other witnesses. Tha present appellant has conimitted brutal murder of his 7 yeare aged daughter in the name of sacrifice (Bati Pooja). 10.1n order to appreciate the arguments advanced on behaif of the partias, wa have examined the evidence adduced on behaS of the prosecution. t 11 .!n Uie present case, homicidal death of Ku.Mohini @ DheMI as a result of fatal injuri^ found over the neck virtuaily comptetechopping of nesk hss not been disputed on behalf of the appeltant, on the ottier hand, also established by the evidence of Dr.SmtJayashree Sahu (PW-10) and herautopsyreport Ex.P/14 in which she has specifically deposed ttiat virtuatly comptete neck was found cut and deaBi was homicidai in nature. 12.As regards the complicity of the accusecyappellant in the crime in question, the prosecution has adduced evtdence of syewitness and evidence of esdtra judteiai confession made by the appellant to the witnesses. As per evidemce <rf Sirmoti @ Aangan Moti (RW-5), child witness aged about 6 years.she was piaying with unfortunate giri Ku.htohini @ Dhekli, at Uiat Sme the Eypellarrt came wtth axe, he assaulted his daughter Mohini @ Dheldi by axe and caused her deaft. Definitely, in his cross-examination she has deposed that the appeilant took her daughter near stone and after keeping her on stone he has caused her death but the factum of presence of stone near the place of Incident has not been substantially corroborated by K.L.Tandon (RAf-11)who has inspected the spot Likewise the factum of presence of stone nearthe plac& af incUent does not found support from the widence of Patwari Oyandas Sahu (PW-8) who has prepared spot map vide Exs.P/9 and P/10. ,^ / .'I ;•' ./'•<7_' 4 13.Dsfiniteiy, Sirm<^i @ Aangan Bflott (PW-5) is child witness aged about S years. As per Section 118 of ths Evidence Act, cMld witness is ateo competant witness and evidsnce of chitd witness rray be relied on considering the ags and state of mind of child witness. There may be risk of tutortng, theiefore, the Courts are required to inquire whettier chiid witness understands ttiat it is his/her duty to speak the fruth and he/she is abte to answer the questions put to Wm/her. While dealing with the question of evidentiary value of child witness, the Supreme Court in th®matter of Dathi Ramrao Sakhare ansj others v. State of MaharashW has hetd that chitd witnass is afsocompetent witness and her testimony can be relied on even in the abserese of <»thif she understood ths nature of the questions and give rational answers therecf. Court must see that she is reliable and her demeanour is like eaiy other corapetent witness and there is no tikelihood of being tutored. Howwer, as a rute of prudence the court can seek corroboraiion. Para S ofth®said judgment reads as under:- "S.The entire prosecution case rested upon the evidence of Sarubai (FW 2) a child witness aged about 10 yeafs. It is, therefore, necessary to find out as to whether her evkleni^ is corroborated from ottier evidence on record. A child witness is found competent to depose to the facts and reliable one such evidence could be fte basis ofconviction. In othar woids even in the absence of oath the evidence of a child witnass can be considered under Section 118 ofthe Evidence Act provided that such witness is abte to understand the quesUonand ablejto gjve rational answer thereof. The evkience of a chilcl wttness and credibility thereof would depend upon the circumslances of each case. The only precauBon whreh the court should tear In mind while assessing the evidence of a child wrtness is that the wilne^ must be a reliable ons and his/her demeahour nwst bs lite any other competent witness and there is no HMihood of being hrtored. There is no rule or practice that in every oase the evidence of such a wttness be corroborated befor®a (wivicBon can be allowed to sland out, however as a ruie of prudence the court ahways finds it desirabte to have the corroboration to such evidence from other dependable evkience on record. In the tight of this weil-sstUed principle we may proceed to consider fte evidence of Sarubai (PW 2)." 14.While dealing with the quesUon of reliability of 6 ^ars old child witrress, tha Supreme Court in the case of Suresh v. State of U.P.2 haa hetd that the sole eye wttness a 5 years old son of ths deceased. But thers were unirap^chabte and the most eloqusnt matters on the record which laid an unfaHing assurancs that the chihi was a witness of truth, not a vMness <rf imaginatiwi as mcst children of that age generally are. tn the case of Dhanraj and others v. State 1{19975SCC341) 2AIR 1981 SC 1122 /'. ^ f^7 [J>/ of Maharashtra theSuprenre Court has held that as a matter of fact a S standard student in these days acquires sufficient underdanding te> perceiviB the facts and to narrate ths same. in dealing wtth thasame question in tte case of Suryanarayana v. State of Kamataka (supra 26) It haa bean tolei by the Supreme Court ttiat evidence of a child witness is not rec^iired to b» rejected per se, but the Court, as a rule of prudence, is required to consider such evidence vrtth ciose scrutiny and onty on being convinoed about the quality ftereto and reliabiiity can record convicUon based thsre®n. In the ease of Rameshwar Sto Kalyan Singh v. TheState of Rajasthar^ttie Suprems Gourt has cast a duty on Court ttiat it is desirabte that Judges and Magistiates should always record their opinion that the chitd undsrslands tha duty of speaking the truth and state reasons for such conclusion. White dealing wittt ths evidentiary value of fte chitd witness, in the caseof Shhi'jiOenu Mohite v. State of Maharashfra the Supreme Court h% hetd that where a soie ey® witness is of teenager, his evidence has to be scruUnized with <»ieand eaution if he is able to understand Vne test of cross-examination successftilly and there is no other infirmity it should not be discarded lightly. 14.1n the present case, the Court has put ttie questtons to test that whether Sirmoti @ Aangan Mott (PW-5) child witness aged about 6 years is stote t& answer the quesUons put to her and after satislying itsetf, ft®Court has examined her. Sh®has categoricaily deposed in her evidence that the present appellant has caused fatal injuries to his daughter. tn her ctetail cross-examination, she has specificalfy deposed that the present appeilant wae the person who has caused injuries to her daughter and she has ctenisd tte adveree suggestion gwen to her, afthough she is child witness aged about 6 yeara but she has given rational answer. She wes abto to answer She quesBons put to har except one iine relating to presence of stone in the plaoe of incident. There is no variation in her statament t-1cr evidenee inspires confldence, trustvrorthy and is safe to rely. The prosecutton has (rfaced reliance on other set of evldence viz., extra judfeiat confession made by the appellant to Kashiram (RW-1), Bhojram (PW-2), Kotwar Lochan (PW-3) and Anand (PW-4). These wttnesses have categorically deposed ttiat when thay came to know that the appdlant has kilted hisdaughter, ttien theywent to the spot and asked the appellant, ttien the appellant made adra judicial contesion that he has sacrificed his daughter (Si^ft WET 3^& ^RIT ^T ^?r ^W ^T 3 A7R 2002 SC 3302 4AB8.99)1952SC54 SA1K.1973SC55 '•^ feiT ^, although Kashlram (PW-1) has deposed in his evkience that^sometime prior to the incident th@ appellant was not normat but this fact does not find support from any other sources viz., invesUgating officer has categoriCBiiy deposed thsrt he was normal. Even ttie appeltant has not taken the plea of insanity. He has answered Ihe questions put to hira under SeeHon 313 ®fthe Cr.P.C. Defence has cross-examined Vnese witnessas at length but has not been abte to elicit anythlng in their cross-examinations to discredit their tesUmony relating to ©xtrajudicial confession made to them. •; 15. Extra judicial confession is a weak type of evidance, but wice it is preved then same is sufficiwt for convicUon. White dealing with fce evictentiary value of extra-judicial confession made undar SecUon 24 of tto Evldenca Act, the Apex Court in the matter of Baldey Singh v.State oTPunjat^ has held that extra- juttidal confession is generally of weak type of evldence. No convicUon ordinarily can be based solely thereupon unless same is eorrctoorated in material particutars. 16.While dealing with the same question, the Apex Court in tha matter of Mohci. Azad @ Samin v. State of West Bengal has hetd that if extra-judicial confession made voluntarity and truth in a fit state of mind then itcan berQlied upon and confession wiil nave to prove like in any other evidencs. Para 22 of the said judgment reads as under:- "22. An exfra-judicial confession, if voluntary and tru®and made in a fit state of mind, can be relied upon by the court. The confession wiil have to be proved like any other fact. The vaiue of the evidence as to confession, likeany other evidence, depends upon the veractty of the witness to whom it has been made. The value of ttie evidence as to the confession depends on the reliability of the witness who g'lves the evidence. It is no^ open to any court to start with a presum|rtion that extra-judicial confession is a weak type of evidence. tt would depend on ttie nature cf the circumslances, the time when the confessiQn was made and the credibility of the wftnesses who speak to such a confession. Such a confession can be relied upon the convictk»n can be fbynded ttiereon if the evidence about the confession comes from Uie mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and In respect of whom nothing is brought out whteh may tend to indteate that he may have a motive of attributing an intruthful stetement tothe accused, the words spoken to by the witness are clear, urwmbiguous and unmistakably convey that the accused is Uie perpefrator ef the crime and nothing is omitted by the wtness which may miltete against it. After subjecting the evidence of the wttn^s to a rigorous test on the touchstone of credibiiity, the extra-judicial S20»AIRSSCW3730 72009AIRSCW75Z ;I'?-' •l^yi?:?;i ;// confession oan be accepted and can be ttie basis of conviction if it passes the test of cradlbility" 17.1n the present case, the prosecution has adduced evidence of eyewitness^ SirmoU @ Aangan MoU (PW-^ and evidence of extra judicial confession made by Ihe appellant to Kashiram (PW-1), Bhojram (PW-2), Kolwar Lochan (PW-3) and Anand (PW-4) which inspir®confidence and trushrorthy and aw®ifeta rely for drawing inference thatthe pressnt appellant has chopped the neck ®f her daughter and caused her deaft. He has tolGLtheiiritnesses'-thathe has sacrificed her daughter. 18.Mter appreciaBng <he evtdence available on record, leamed Second Additional Sessions Judge, Mahasamund has convicled the appellant under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undargo R.I. for sb( months. ConvicUon of the appellant is based on credible, clinching suid reliabte evidence sustainable underthe law. 19.WNIe convicting the appeltant, the trial Ceurt has not connnittad any ill^ality. The appeltant has mereile^ty Mlted hls daughter aged about Tyaars.on tiw ground of sacrifice. The trial Court has oghttysenteneed the sq»p®llant imprisonment for life and fine of Rs.100(y-, tn default (rf^payment-offlne to undeigo R.l. fcr SK months. ? 20.0n close scruCny <rf the evidence, we cto not find any illegsNity in thejuc^ment impugned warranting any fnterference. Consequently, the appeal being devoid of merit is liable to be dismissed and it is hereby dtemissed. Sd/- T.P. SSiarma Judge Sd/- R.L. Jhanwar Judge