l?a'>. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri SunilKumar Sinha.J. Criminal Appeal No. 703 of1994 Hariram /• Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 Sd/- CSiiefJustice ~^5- Postfor Judgment : _^/03/2011 Sd/- Sunil Kumar Sinha Judge -^ ';:;A. &,i ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 703j?f 1994 APPELLANT RESPONDENT Hariram, son of Ramji Rajak, aged 42 years, resident of Kota, Forest Guard Jogipur Beat, PS Takhatpur, District Bilaspur (M.P.) (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh), (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr N.L. Soni, Counsel for the appellant. Mr J.A. Lohani, Panel Lawyer for the State. JUDGMENT ( i.03.2011) Following judgment of the Court was delivered by Sunil KumarSinha. J. th (1)^'This appeal is directed against the judgment dated 13*" ofJuly -1994 passed-'in S.T. No.255/93 by the Fifth Additional Sessions Jud^e, Bilaspur. By the impugned judgment, the appellant has been cohvicted under Sections 302 IPC and sentenced to undergo imprisonment for life. Criminal Appeal No. 703 of 1994 (2) The facts, briefly stated, are as under:- The case of the prosecution is that on 20.04.1993, deceased - Gulaba Bai had gone to her fields for agricultural work. She was holding pick-axe, spade and tangia etc. After sometime, her son Ravikumar (PW-5) also reached there. The allegations are that when the deceased and her son were returning to their house, the appellant assaulted the deceased by tangia, who received an incised wound of 4cm x3 cm x2 cm on temporal region and succumbed to the said injury. The incident was witnessed by Ravi Kumar (PW-5). Ravikumar narrated the story to his grand father Kanhaiya (PW-3). Kanhaiya met Bisahu Ram (PW-1), who after seeing the dead body lodged the First Information Report (Ex.P/1). Merg Intimation (Ex.-P/6) was also registered. The Investigating Officer reached to the place of occurrence, gave notices (Ex.P/7) to the Panchas and prepared inquest (Ex.P/8) on the body of the deceased. The body of the deceased was sent for postmortem to Primary Health Centre, Lormi, where, the postmortem examination was conducted by Dr. Lokeshwar Das (PW-10). He noticed the above injury and opined that the injury was caused by sharp and hard object; the death was on account of shock due to the above injury and it was homicidal in nature. The postmortem report is Ex.P/24. In further investigation, the appellant was taken into custody and his '' memorandum statement under Section 27 of the Evidence nct (Ex.P/17,) was recorded and a tangia was seized at the instahce of the appellant vide seizure memo Ex.P/18. The seized artieles were ^nt for their chemical examination to Forensic Science Laboratory, Raipur vide memo Ex.P/14. Though blood stains were found on the artides of the deceased, but no blood stains were found on the tangia seized . at the instance ofthe appellant. The F.S.L. report is Ex.P/15. Criminal Appeal No. 703 of 1994 After completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Fifth Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant as aforementioned. The conviction of the appellant is based upon the sole testimony of Ravikumdr (PW-5). (3) Mr. N.L Soni, learned counsel appearing on behalf of the appellant, argued that Ravikumar (PW-5) was the son of the deceased; he was an interested witness; his presence at the place of occurrence was highly suspicious; he was a child witness and was not reliable. Therefore, the conviction cannot be based on his sole testimony. (4) On the other hand, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported thejudgment passed by the SessionsCourt. (5) We have heard learned counsel for the parties atlength and havealso perused the records ofthe session's case. <6) In Harbans Kaur and another -Vs- State of Haryana. 2005 AIRSCW2074. the Suprerh'e<;ourt held that there is no proposition in law that relatives are to be treated as untruthful witnesses. The Supreme Cpurt said that reasons has to be shown when a plea of ^: ••-^"\ >,. '^,_JJ ^'.JC^ Criminal Appeal No. 703 of 1994 partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. (7) In Namdeo -Vs- State of Maharashtra. 2007 AIR SCW 1835, the Supreme Coud held that a witness who is a relative of deceased or victim of the crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or forsome other oblique motive. The Supreme Court also observed that a close relative cannot be characterized as an 'interested' witness. hle is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probableand wholly trustworthy, conviction can be based on the 'sole' testimony ofsuch witness. Close relationship ofwitness with the deceased or victim is no ground to reject his evidence. On the contrary close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one. (8) In Dhamidhar -Vs- State of Uttar Pradesh and others & / other connected aopeals^ (2010} 7 SCC 759, the Supreme Court sajd that there is no hard-and-fast rule that family members can never be true witnesses and they will always depose falsely before Court. A clpserelative ofthe deceased does not, per-se, become an "^y Criminal Appeal No. 703 of 1994 interested witness. An interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes and deposes before Court only with that intention and not to further cause -of justice. hlowever, version of interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same. When their statements find corroboration by other witnesses, expert evidence and circumstances of case clearly depict completion of chain of evidence pointing out guilt of accused, then statements of so-called "interested witnesses" can be relied upon by Court. (9) Therefore, we do not find any force in the arguments of Mr. Soni that version of Ravikumar (PW-5) should be brushed aside out- rightly only on the ground that he was theson of the deceased. However, hisevidence is to be scrutinized with due care and caution and if his evidence is found to be reliable, the conviction can well be based on his sole testimony. (10) Ravikumar (PW-5) was a child witness. He was 11-12 years on tl-ie date of the incident. In Bharvad Bhikha Valu & Others -Vs- The State of'Guiarat. AIR 1971 SC 1064, the Supreme Court held that'even if there are no infiEcpities in the evidence of a child witness, it would be prudent to seek corroboration of such evidence jn view ofthe tender aged of child witness. Criminal Appeal No. 703 of 1994 (11) In Dattu Ramrao Sakhare & Others -Vs- State of Maharashtra, (1997) 5 SCC 341, the Supreme Court said that the court must see that the child witness is reliable and the demeanour of the witness is like any other competent witness and there is no likelihood ofbeing tutored. There is no rule or practice that in every case the evidence of such a witness ,be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. (12) In Panchhi and Others -Vs- State of U.P.. AIR 1998 SC 2726, the Supreme Court held that the law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell themand thus a child witness is aneasy prey to tutoring. (13) Referring to various other judgments, the Supreme Court held in the matter of Ratansinh Dalsukhbhai Navak -Vs- State of Guiarat. (2004) 1 SCC 64 that conviction on the basis of child witoess is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced / abput the quality and reliabUjty ofthe same. (14) Therefore, it is wellsettled that the evidence of a child witness has to be evaluated with great care and caution and greater cifcymspeetion and its credibility has to be examined in light ofthe __..<^ ^i'i.y 2,^ i^iS^" CriminalADpeal No. 703 of 1994 facts and circumstances of each case and if it is found credible in all respects it can be reliedon for conviction in a criminal case. (15) Now we shall examine the credibility of the evidence of Ravikumar (Pw-5). (16) Ravikumar (PW-5) deposed that the appellant had assaulted the deceased by tangia. The appellant was Munshi. 1-iis mother had kept some wood and tangia, therefore, the appellant assaulted her. Tangia was of his mother. His mother had gone for working in the field at about 8:00 a.m. He had also gone with his mother. At about 10-11:00 a.m., they returned near the dam and his mother took bath in the dam. Tangia was kept in a Jhauha (a doth bag). When his mother had gone to take bath, the appellant came there, took out tangia from Jhauha, kept it on his bicycle and went towards Kundra (a hut made in the field for taking rest) of Shiv Prasad. When his mother came after taking bath, she asked Ravikumar about tangia, on which, he replied that tangia has been taken by Munshi. Munshi had gone towards Kundra of-Shiv Prasad. Thereafter, his mother also went towards that place. She took tangia from the bicycle of the appellaFi't. On this, the appellant came out from Kundra, snatched tangia from his mbther and thereafter, gave tangia blow on he'r neck, In the cross-examination, he admitted in para 9 that he had seen the appellant for the first time on the said date. He did not knbwthe name of the appellant. No Test Identification Parade was [ ; .!....: ^ Criminal Appeal No. 703 of 1994 conducted. He was a student of Bhimpuri School. hle had not gone to the school on the said day. He was contradicted with his case diary statement (Ex.D/1) on the point that he did not mention in the said statement that tangia was kept in Jhauha andit was taken by the appellant. There were other contradictions also in his above two statements. (17) Mr. Soni has argued that "Ravi Kumar (PW-5) was a regular student of IVth standardof Government Primary School, Bhimpuri. On the fateful day, i.e. on 20.04.1993, he had gone to his school. Therefore, he was not present at the place of occurrence". Premal Gupta (DW-1) was an Assistant Teacher in the said school. He deposed that Ravikumar (PW-5) was a student of his school. He was studying in IVth standard. On 20.04.1993, Ravikumar was present in the school. He has proved the entries of admission register (Ex.D/1/C) and attendance register of the relevant date (Ex.D/2/C). In the attendance register, on the said date, Ravikumar was marked as present in the school.. His name finds place at Sl. No.j 3 of the relevant page of the Attendance Register. Premal Gupta (DW-1) deposed that on 20.04.1993, timing of the school ^ / wag from 7:30 a.m. to 11:00 a.m. hle deposed that prior to April, '~-*^ timing ofthe school was from 11:00 a.m. to 5:00 p.m., but from the first day of April, the timing was 7:30 a.m. to 11:00 a.m. The timing was changed w.e.f. 1st of April 1993. On 20.04.1993, Ravikumar .^as.throughout present in the school. In the cross-examination, he Criminal Appeal No. 703^f 1994 deposed that no student can leave the school without his permission. If any student leaves the school, it comes in his knowledge. The attendance was taken at8:00 a.m., subsequent to the prayer. After the attendance, the students are not allowed to 30 from the school without leave. He has denied the suggestion ofthe Public Prosecutor that on 20.04.19193, Ravikumar was absent. He has specifically denied that on the said date, Ravikumar left the school after the attendance alongwith his mother. Premlal Gupta was cross examined at length, but nothing adverse against his version in his above examination-in-chief could be elicited in his evidence. On the above evjdence of Premal Gupta (DW-1), it was established that on 20.04.1993, Ravikumar (PW-5) had attended the school and he remained there during the school hours i.e. from 7:30 a.m. t o 11:00 a.m. The incidenttook place at about 11:30 a.m. On theface of evidence of PremalGupta (DW-1), the evidence of Ravikumar (PW-5) appears to be doubtful.According to Ravikumar, he had not gone to the school on the said date and he remained throughout with his mother. Theevidence of Premlal Gupta (DW-1) cre^tes doubt on the above evidence of Ravikumar (PW-5). (18) Bisahu Ram (PW-1) is the brother-in-law {devar) of the ''-». deceased. He is maker of the F.1.R. (Ex.P/1). According to the F.I.R.,one Tegna Gond stated that "the deceased has been myrdered and her dead body is lying near Kundraoi Shiv Prasad. Sfie'has beenmurdered'by Forest Guard, Rajak". Thereafter, he 10 Criminal Appeal No. 703 of 1994 went to Kanhaiya (PW-3) on his motorcycle and both went to the place of occurrence and saw the dead body. There, they met wife of Shiv Prasad (Janki Bai), who told them that the forest guard (appellant) has committed murder of the deceased. It has not been mentioned in the F.1.R. that the incident was witnessed by Ravikumar (PW-5). Janki Bai has.been examined as (PW-4). She has turned hostile and hsis not supported the case of the prosecution. If the First Information Report was lodged by Bisahu Ram (PW-1) after due discussion with Kanhaiya (PW-3) and Kanhaiya was duly informed by Ravikumar (PW-5) that the appellant vf committed murder/his mother, the name of Ravikumaras an eye- ^- witness would have been mentioned in the F.1.R. This further creates a doubt on the testimony of Ravikumar (PW-5). (19) Tangia was seized on the discovery statement of the appellant, but no blood stains were found on tangia. Therefore, the aforesaid seizure was not incriminating against theappellant. (20) On due consideration of.the entire evidence on record, we are oflhe view that the above facts and circumstances of the case create a doubt on the presence of Ravikumar (PW-5) at the place of OGcurrence: The evidence -of. Ravikumar (PW-5) is not corroborated ,by pther independent witnesses. Therefore, the story put forth by Ravikumar (PW-5) appears to be doubtful. 11 Criminal Appeal No. 703 of 1994 (21) For the foregoing reasons, we allow this appeal and set aside the conviction and sentence awarded to the appellant under Section 302 IPC. He is acquitted of the charges framed against him. The appellant was arrested on 21.04.1993 and was released on bail on 13.05.2002 by order dated08.05.2002. Presently, he ison bail. His bail bonds are cancelled and surety stands discharged. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge shyna