CFOOOOO'M^ ^'>.c\ (APpeal Ssetiiaa 374(2) e£ -3r«?»3 y.^ ^- <^"t^ ...>v XA^-' ^; IrfCU. ^ s Stata'of M.p», tiireng'a nisre CM.o.t , -•1 XI-HC-22 3^'^Tpn?PT, (STily'16, ieidKHy HTHCTT SfiITrai^^:B..^S^ ?Q». sn^r^iT R-fi'* 311^1 sbKi+yRd ail^l ^<-dlw;Hfga' •=b|t]t<-l41-l tlltK-lTtT'fel^ ^sif^tTrgTi^i' DIVISION BENCH: - HON'BLE MR. L.C. BHADOO A»<D HON'BLE MR. DILIP R. DESHMUKH. JJ. 1-7-2008 Mr. H.S. Ahluwalia, eounse(fw the appellants. Mr. Akhil Mishra, Panel Lavjyer forthe State/respondent. Orat order. By this appeal under Se^tion 374 (2) of the Cr.P.C. accused/ appellants Mahangu Satnami & Ulantram Satnami have qussUoned die iegality of convietion and senten|ce passed by the Additional Sessions Judge, Bemetara, vide judgmer^t dated 23-6-2000, in Sessions Trial No.148/1999, whereby learned ^dditional Sessions Judge after holding the accused/ appellants guilty for he commissien of offance undw Sectton 302 read with SecUon 34 of the l.fp.C. sentenced each ofthem to undergo imprisonment for llfe and pay a fl|ie of Rs.500/-, in defajlt of payment of flne to further undergo R.l. for Mahesh Satnami was acquitted. The prosecution case, in |wo months. However, third awused |brief, relevant for tte di^aosal of this criminal appeal is that on 1-11-1^8 at about 8 p.m. when Village Kotwar Shiv Singh (PW-1) was sleeplng ^t his residence, Kripa Satnami came to his residence and informed him t^at Sarpanch Budtardas has called him. On receiving this information, Shi'jf Singh went to the hous®of Budhardas and Budhardas disclosed him tha( Santu has been murdered byMahangu & Mantram by attacking with Kudati & Lathi. On this, SWv Singh went to ttie house of Santu and saw that the dead body ofSantu was lying in the Parchi of the house of Santu. Kejuram was weeping vAiite sitting by ttie side of dead body. On enquiry frcjm Kejuram, he informed Shw Sii^h that Mahangu & Mantram have murdered Santu by attacking with c -i? XI-HC-22 /7>,;: '•){; ./' ^Sf ^WM^, ®rfiwre,i°ttfl*iy sn^r'q^w A, 2_0^?^, W^cii stiKI* •^•-••••"••••"•-""-yg^ 2000 ^^ an^r^r R-fi<*a:n^T ?b>litiHf?(T sbllti 3n^T5T(TTaiKHf?cT ^ <^l^t^4i*T ^ilH^lT ^f' te^S' <f^l'LdR ^iSTRriTsn^T Lattii. He also saw injuries on th^ body of Santu, blood was oazing out of the injuries. ; On the next day, Shiv Sin^h lodged reportat Pdice Station: Berla upon which the Police reglsterec) Merg No.45/98, and Aiereafter, F.t.R. (Ex.P-1) was r^istered at Crime |No.176/98 under Ssotion 302 rea6 with Section 34 of the I.P.C. After re^istration of the case, InvesBgation was taken up and the InvesUgating) Offlcer reaehed the spot, and after Issuanee of notice Ex.P-3 he prep|ared the Panchanama of the dead body (Ex.P-4). During ttie Policej custody accused Mahangu gave memorandum Ex.P-5 and in pu|rsuancs of that he got recovered Vhe ptekaxe under Ex.P-7. Accused hpantramalso gave memorandum Ex.P-6 while In the Police custody and he|got recovered the wooden Dmda under Ex.P-8. Under Ex.P-9 one Gamcha of accussd Mahangu was taken into possession. Under Ex.P-10 TulsJ Mala was taken into poseession. Site map ofthe place of occurrence E)(.P-13 was prepared by the Investigating Officer. The bodyof Santu was s^nt f<x post-mortem examination and the doctor after conducting post-mortjem prepared post-mortan report Ex.P- 14. The doctor found following Santu: - 1. lacerated wound in the siz^ njuries on Uie dead body of deeeased of 2.5 x 0.5 cms. muscle deep rightfrontalregion; 2. lacerated wound in the siz^ of 0.5 x 0.5 cms. muacte deep right parietal region; 3. lacerated wound in the siz? of 4 x 0.5 cms. muscle deep right occipilal region; j 4. lacerated wound in the size of 4 x 0.5 cms.muscle deep teft frontal reglon; | (iftsti'et) XI-HC-22 V; 3v( ^||<l||c1<<, 8iTt!+i-i|6, !e|fl]tiy tllHcTTShtfl^i 1^.'.1.>:.<.-S>K-S^ STI^TERT R-fi+sn^r sh*1 gf?cT 311^1 gWIW:Hf?cT -3> •Wlfefft^IITtRTl'^'te^ rf^RZR ^iSTf^ITSTI^T 5. lacerated wound in the siz^ of 1 x 0.5 cms. muscte deep leftparietal region; 6. abrasion (i) 1 x 1 cms. (ii) 2 ] 7. contusten 10x 0.5 cms. po^t- 8. abrasion 2 x 0.5 cms. over 9. contusion 5x 1 cms. post-stirface 'lcms. x 1 cms. luiTfcerregion; ^t-airfase of teft chest; l|eftseapular region; and of right chest. -stirfacei The pickaxe was examir(ed by the doctor and he prepared inspection report Ex.P-15. Ex.P-1|7 is the examination report of clothes of accused Mahangu. After compt^tion of investigation charge sheet was fited against the three accused f^ersons namely, Mahangu, Mantram & Mahesh, before the Judicial h|iagistrate, 1 Ctass, Bemstara, who committed the case for trial (o the! Seaions Judge, Durg, from where the Additional Sessions Judge recewejd the case on transfer. The prosecution had examl^ed as many as 12 wKnesses. Leamed Addittonal Sessions Judge record^d the statement of the accused peraons under Section 313 of the Cr.P.C.I and stated that they tiave beenj hearing the arguments ofcoun^ in which ttiey have pleaded irmocence falsely implicated in the crime. After tel Tor the accused and the Additfonal Publte Prosecutor, learned Adc|itional Sessions Judge after placing reliance on sote eyewitness Asho ^ (PW-12) eonvteted accieed/appallants Mahangu & Manfram, and acquftt^d accused Mahesh. We have heard learned coiinsel for the parties. 1 Before commencement of argumente, team«f counsel for the appellants informed the Court |hat accused/appellant Mahangu died 1 during the pendency of this app^al. Thls fad has not been disputed by learned Panel Lawyer. L^rned|counsel for the appellants furnished a (ift^^'Nr) 'CtO y XI-HC-22 3^r •<<i<<iin't|, a'di'Miito, isifiiyy 1K4WI Stl<41<*i " 3I1^T;=fiT f^rwsn^r s*ili*Hf?(T W^V g+dlWHf?(T -9- qrota^r tiTticfr'ff te^l'Tfesre ^srf^TTsn^i Xerox copy ofthe death certificate |dated 2-5-2004 of Mahangu, aceording to whteh accused Mahangu died orj 2-4-2004 atAkoli. In view of the above, the ^Ppsal with regard to Mahangu stands abated. Learned counsel for the iappellant also submitted that since accused/appellant Mantram was ai|rested on 3-11 -1998 and since then he is in custody, thereby he is in c^stody since last more than sbc years, therefore, the appeal may be he]ard on merit to which learned Panel Lawyer has no ofajecUon. Therefor^, the argumentswere heardon merit. As far as the question of nsjture of deathof Santu being homlcidal is coneerned, leamed eounsel for <he appellant has not dispufed this fact. PW-7 Dr. V.P. Agrawal has state<jl that on 3-11-1998 he was posted ss Medical Officer, Primary Healtti Cjentre, Beria, on that day at about 11 a.m. he conducted post-mortem 0^1 the body of Santu on the request of Police Station: Berla, and found t^at there were nine injuries on his body out of which ir^uryNos.1,2,3,4^5 were lacerated wounds on Uie right side of head, on occipital region ajid on frontal region teft and right sides of the head. There was one abra^ion on the back, one contuston on the chest, one abrasfon on the cheslj, and contusion on the chast. ki the opinion ofthe doctor all the fnjuri^s were anti-mortwn in nature and the cause of death was shock due t^> injury on lung and left haemothwax which was the result of injury on hdad and chest. The nature of death was homicidal. The doctor prepared the report Ex.P-14. Therefore, on the basis of evidence of the doctor it jstands proved that Vhe death of Santu washomicidal in nature. I Now, comlng to the involv^nent of accused/appellant Mantiam in commith'ng the murder of Santu, wnwc&m rests upon the testimony of ~{, (qre^') /^. XI-HC-22 3F5T .<||i||c1ij, »fl!tii|6,{sldiyy „ ^^...A-.^^/ ^WWI 9iW<* sn^TgiT f^rwsn^T sbtli°h(ri?(T SbH =t)l'i|Ft-l41-l WRTt' q'' f5^S ^sTf^TTsn^r sole eyewitness Ashok (PW-12), who at the relevant time was of 10 % years old. Learned counsel for the a^pellant a^ued that tMs witness (Ashok RA/-12) is a child witness, and <|he tearned trial Court has not put any question in order to ascertain hii capacfty to underetand the questtons, and as to whether he was able (o understond ttie sanctity of oath. He further argued that the name of |this witness does not find place in the F.I.R. Learned counsel urged |ttiat PW-12 Ashok has stated in his evidence that he Informed K<rtwa|- Shiv Singh (PW-1) about the incident, whereas, Shiv Singh in his evi^lence has not stated so, and on the contrary Shiv Singh has stated th^t he was informed byKripa Satnami on the direction by Budhardas Sarpajnch. He also submitted that as per the evidence of this wftness (PW-12 ^shok) ttie plaee wha-e the mcklent took place was surrounded by many h|auses which were InhabKed by persons. In para9, this witness has stated|that about 10 persons were standing at the spot, but none of them havejbeen examined by the prosecutlon nor Ihey have been made as prosecu|tion wltnesses. Learned counsel for the appellant further argued that this]witness (PW-12 Ashok) has stated that the accused/ appellant assautted (he deceased with axe, whereas, no axe has been recovered from fte ac4used. Therefore, in vtowofthe abov® infirmities in the evidence of thils witness, frie trial Oourt has wrongly convicted the accused/appellant t>lacing retiance on the evidence of this sote eyewitness. On the other hand, learn^d Panel Lawyer argired that thare is nothing on record which shows tl^at this witne^ (PW-12 Ashok) has any animosfty against the accused an^l the evidence of thte witness is reliable, and the trial Court has rightly (^onvtetsd the accused/appeltant placing leliaiiuy oii llie evidence oniil!> witne®. (ifl^t'rs'r) XI-HC-22 @ 3^ "'IIIM'!), ^iwid, Afiio^ •3llct?l<T3W Kllrtl stitil* ••"-••••••••••••••••,-g^20BO feis" ••••••••" sn^T^ir R-licb3fT^T ^i1 ^^cT 311^1 «<IIWffii?T - 6 qirafepftT WRJt'fffetA: ^srf^trsn^r Having heard leamed courjsel for the parties, vi»have pen«edBie evidenoe of this witness (PW-12 |Ashok) and dher evidence avaMabte on record, and judgment of the trial poyrt. It is admitted positlon, as per ttie age gwen by Ashok himself <n his evldence ttiat on the date of e)amination i.e. 17-5-2000 he <M^S about 12 yeare of age, ther^ore, on the date of incident he was 10% 4eare old. Settled law on tfie questior( of E^adng reliance on th®evidehce of a child witness is ftat before placin^ reliance on evidence of a chiU witness the Court is required to saUsfy wfth the followtng requirementB (1) b^ore examining the child witness the| Court must put quesUons in order to ascertain that ttie child witness is| competent to testHy and undeistand the questions put to him/her and no^ prwented from giving rational answere on account of tander age (2) o^th shodd be administered to Ihe chNd wBness only after ascertaining b'jr putting questtons thatthe chlld witness undeistands the sanctity of the |oath (3) before placing reliance on the evidence of a child witness the e^idence must be scrutinized carefalty wid it should be ascertatned, whethei) the chifd witness is inteltlgent enough to understand the questiwis, there |s no likdlhoad of hitoring or Influencing by anyone and ff the Court is coi(vinced about the quality and reltaMIUy of a child witness then and then on(y the Ceurt can base comrietion on sueh evidence wtthout corroborattonj In other cases it is safe to seek corroboratton ofthe evktence of 4 child witness. It !s admitted position that) the trial Court even though In para 1 of the evktence of PW-12 fietwk ini eompetent to give evidence, bulj recorded anyBnng which shows jthat this witness was underslanding tfte sancUty <rf oath and he was cjompetent to understand the questtons. Theref&re, It was not safe for the trlal Court te cgroteFth singte tlne has wrtttan that the witness is has fwt put any quesSons and has not \ (•[-^. XI-HC-22 35T •<ii<<ici<<, siTfl^']S) Ricfiyy *<l*{rtl sh*1|ch^&...^..^Q^-.^ c SD^TW fcRT'RSn^T aiTR;gf?(T =tii<<ti~i<fl-i tiitidTffte^!'<R]<-<.i< ^3lRilT31^T appellant onthe solitary evidenc^ of this witness. Thera are number of inflrmities in the evidence of thi^ witness whlch create doubt about his presence on the scene of occurretice. PW-12 Ashok has statecf in his evidence ttiat t»immediately informed Kejuram & Shiv Singh |<otwar who went to lodge report at the Police Station, whereas, Shh/ ^ingh who toc^ged Uie report at Rrite Station has been examined as ITW-1, and he tes not mentioned in the F.I.R. or hls evidence thatthis wjtness (PW-12 Ashok) informed him that he has witn^sed the scene. On |the contrary, this witness has statetf that he was informed by one Kripa ISatnami on the direction of Sarpanch. Apart from that in para 9 PW-12 j^shok has stated that he does not know which kind of clothes and of wfiich colour the accused parsons were wearing. In examination-in-chief|para 4 he has stated ttiat when he was watchlng the incident no perjsons were standing nearby, but in conbadtetion of that in para 9 ifi last line, he has stated that place of ineident was visible from the |shop where about ton persons were standing, persons standing at th4 shop were able to listen the cries from the place of occurrence. He t^as further stated Uiat persons always remain present near the shop an<? in ttie lasl line he has stated that atthat time about 10 persons were pre^ent there. But, none of these psrsons were examined. PW-12 Ashok Mas further stated thatwhere the incident took place numbers of houses teire fterewhich are inhabited and the persons residing in those houses were able to hear the cries. But, no person other than this witness has been examined bythe proseeution. PW-12 Ashok has stated ip his evlderwe that he has notdisclosed about the incident to anyboc^ el^e except Kejuram & Shlv Singh Kotwar. Shiv Singh has not stated in hisjevidence that this wttness has informed (cftii?,''f®q') XI-HC-22 ^t 'ysf "i)iiii<nii, (SxfteiR, fsii'ii'My NWvff 9-iWVh—.<%;.^..'^..(?.&s/ •W^/WT 20B & < sn^T^r f^iwsn^r aw«Rgf5(T S^l^l gWIWfff?cT - g-1 qirafeftH WRff H te^t Tf ^arRpTan^T him about the incident. Kejuram |ias not been examined on account of his death. It is ateo important to n^te that this witness is ne(rf)ew ®fthe deceased, therefore, he falls uncjer the eategory of interested wltnesses. It is true that it is setUed law that related witness cannot be throwri same time the Court is require^l to scrutinize the evidence of such a witness with care and circumspe^tion. When we put the evidence of this witness (PW-12 Ashok) to that tjest, then in our considered opinion the testimony of this witness does no^ inspire confidence and fails to come up to the expectatlon of that test ir^ pointed out earlier. Further instance on the accused/appellant Mantram was Santu with that axe, but that axe wound or cut injury has been a person of bad antecedents i.e. :he tesUmony ofan interested witness or away merely on Ihat ground, but at Ihe view of the tnfimiities in his evittence Iground of which tte avictence of ttiis witness (PW-12 Ashok) becom]es shaky is that he has stated that |carrying axe and he attacked deceased I has not been recovered and no inclsed |Tound on the body of the deceased. Therefbre, even the medical evid^nce does not support the wrsion of this witness. Even PW-1 Shh/ Singh l|(otwar has stated that the dweaeed was ^riminal in nature, and used to tnvolve in criminal activities. Other witncjsses namely, Budhardas, Kushdas & Ramkhilawan have tumed hostite and they taw not supported the prosecution case. | Therefore, In view of the above infirmities in the evidence of PW-12 I. Ashok, the evidence of Ashok does not inspire confldence for placing reliance on the evidence of this ^itness. It is not sate to base conviction on the solitary evidence ofthis wi^ness. ((ft^^reRr) XI-HC-22 ^_> 3^'-?TRRW, EStflu'Ko, iiHwrgwT^ .&..6..%G% an^OT^ii f??Ni3TI^I sbxiti+flgd ehllfcfifl-) t||t1ClTffte^l'<Rl<'lil< ^•ai^Tirsn^t' Soma In our considered opinion ^nd for the foregoing reasons the triat Court has fallen in error by placli^g reliance on tte e^dencs <rf PW-12 Ashok and convteting the accusejd/appellant under Secten 302 of tiie I.P.C. forthe commission of offenc^ ofmurder of Santu. Resultantly, we are not abl^ to concur with the flnding of the trial Court, and thcrefore, flnding of tfie triaf ©ourtoonvicting the aicused/ appellant for the commtesion of mu^der <rf Santu cannot besiRtained. In the result, the appeal Conviction and sentence awarde4 impugned judgment are set asidej Isucceeds and the aame is allowed. to accused/appellant Mantram by ths and he is acquitted of charge undw Sd/- L.C.BHADOO Judge Section 302 read with Section 3j4 of the I.P.C. He be set at tfcerty forthwith, if not required in any othejr case. In view ofthis order, M.(Cri.)jP.^to.931/2005 stands disposed ®f. Parties are entitl«lfor certifi^d coj^ ofthis orter.__—— .Up RaosahebDeshmukh Judge Dilip \