^•^ '^ fl-r-ri_ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice Sunil Kumar Sinha and Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1272 of 2002 Dharampal Patel versus The State of Chhattisgarh JUDGMENT FOR CONSIDERATION Sd/- R.S. Sharma Judge .-^ Hon'bleShri Sunil Kumar Sinha. J.: ?/y^S- Sd/- Sunil Kumar Sinha Judge Postfor-^ -09-2011 Sd/- R.S. Sharma Judge •^^ 1 / ..s ft r-t^ Appellant HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Mr. Sunil Kumar Sinha & Hon'ble Mr. Radhe Shvam Sharma. JJ. Criminal Appeal No.1272 of 2002 Dharampal Patel, son of Kanhaiya Patel, aged about 28 years, Occupation - Agriculturist, resident of Charoda Basti, P.S. Bhilai-3, Tahsit and District Durg (CG) versus Respondent The State of Chhattisgarh Present: Shri Y.C. Sharma and Shri Sanjeev Verma, counsel for the appellant. Shri Ravindra Agrawat, Panel Lawyer for the State. Criminal Appeal under Section 374(2) Cr.P.C. JUDGMENT (Delivered on ^7 September, 2011) PerRadhe Shvam Sharma, J.: This appeal is directed against the judgment dated 05 December, 2002 passed by the Special Judge and Additional Session Judge, Durg in Special Case No.77/2002. By the impugned judgment, appellant Dharampal Patel has been convicted under Sections 302, 307 and 449 ofthe Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default, to further undergo rigorous imprisonment for 1 year, rigorous imprisonment for 7 years and rigorous imprisonment for 7 years, respectively. 2. The facts, briefly stated, are as under: Rajesh Meshram (PW-9), his wife Archana Meshram (deceased) and their daughter Ku. Nidhi Meshram (PW-6), aged about 6 years, were residing together in a house. On 25.02.2002, at r ^^ ^ /^ about 1.30 p.m., when the deceased and her daughter Ku. Nidhi Meshram (PW-6) were inside their house, the appellantcame there from backside of the house and tried to open the Almirah kept in a room inside the house. When the deceased saw theappellant, he assaulted her and her daughter Ku. Nidhi Meshram (PW-6) with the Knife and thereafter fled through roof. The deceased succumbed to the injuries. When Rajesh Meshram (PW-9) came to the house, he found that the house was closed from inside. He knocked the door but it was not opened. Then, he asked some boy of his neighbourhood to go inside the house from its roof and open the door. The boy entered the house and opened the door. Rajesh Meshram (PW-9) entered the house and found his wife Archana Meshram lying dead on the cot and his daughter in injured condition. He lodged First Information Report (Ex.P-11) and Merg Intimation (Ex.P-10) was also recorded. The investigating officer reached the place of occurrence, gave notice (Ex.P-12) to Panchas and prepared inquest (Ex.P-13) on dead body of the deceased. Dead body of the deceased was sent for post mortem examination to Government Hospital, Durg vide Ex.P-19. Post mortem examination was conducted by Dr. J.P. Meshram (PW-1), who gave his report (Ex.P- 1), in which he found (i) incised wound of 7cmsx3cmsxbone deep on left wrist, (ii) incised wound 5cmsx2cms just below injury No.1, (iii) abrasion of 5cmsx2cms on right cheek, (iv) incised wound of 3cmsx2 cmsxbone deep just behind right ear, also found the carotid artery punctured and (v) incised wound of 5cmsx2cmsxbone deep on the right parietal region. The doctor opined that cause of death was shock and haemorrhage as a result of excessive blood loss. Ku. Nidhi Meshram (PW-6) was also sent for medical examination. Dr. A.K. Mishra (PW-13) examined her and gave his report Ex.P-25. He found (i) an incised wound of 4cmsx1cmxbone deep on her right parietal bone, (ii) a superitcial incised wound of 1cmx0.25cm on her right scapular region, (iii) a transverse incised wound of 1cmx0.25cmx0.25cm on her left scapular region and (iv) a superficial abrasion of 1/2cmx1/^cm on her back. He found that the injuries No.(i) to (iii) were caused by a hard and sharp weapon. Ku. Nidhi Meshram (PW-6) was admitted in surgical ward of the hospital for further treatment. Dying declaration of Ku. Nidhi Meshram (PW-6) was recorded by Dr. U.S. Agrawal, Naib Tahsildar, Durg (PW-4) vide Ex.P-5 on 25.02.2002. In further investigation, disclosure statement (Ex.P-17) of the appellant was recorded under Section 27 of the Evidence Act on 26.02.2002 and at his instance, a Knife was seized vide Ex.P-18. After completion of the investigation, charge-sheet was filed againstthe appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Special Judge under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Y.C. Sharma, learned counsel for the appellant argued that the prosecution examined only Ku. Nidhi Meshram (PW-6) as eye/injured witness and at the time of her examination, she was only 6 years old. She was a child witness. Her evidence is not clinching r ^ and cogent. Therefore, the conviction based on her evidence is unsustainable. 4. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the prosecution has adduced sufficient evidence against the appellant. The conviction and sentence awarded to the appellant does not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have also perused the record of the session case. The conviction of the appellant is based on the testimony of Ku. Nidhi Meshram (PW- 6), whose evidence is duly corroborated by the medical and other evidence. It is true that at the time of incident, Ku. Nidhi Meshram (PW-6) was only 6 years old and was examined as a child witness. We shall now examine whether her testimony can be based for conviction of the appellant? 6. In State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786, the Hon'ble Supreme Court held as follows: "7. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547, this Court examined the provisions of Section 5 of the Oaths Act, 1873 and Section 118 of the Evidence Act, 1872 and held that (AIR p.55, para 7) every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in ^^•-^^, €^" v<^^ ^ssfs^ h*" «il fact unless the court considers otherwise. The Court further held as under: (AIR p.56,para 11) "11. .... It is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, 1 think, be gathered from the circumstances when there is no formal certificate." 8. In Mangoo \i. State of M.P., AIR 1995 SC 959 : 1995 Cri LJ 1461, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 9. In Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561 : AIR 1998 SC 2726, this Court while placing reliance upon a largenumber of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to ^^^'^ 1 ^' ^^ ( 6 be swayed by what others tell him and thus a child witness is an easy prey to tutoring" (SCC p.181, para 11) 10. In Nivrutti Pandurang Kokate v. State of Maharashtra, (2008) 12 SCC 565 : (2009) 1 SCC (Cri) 454 : AIR 2008 SC 1460, this Court dealing with the child witness has observed as under: (SCC pp.567-68, para 10) "10.....'....7..... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examinationwhich will tend to disclose his capacity and intelligence as well as his understandjng of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.'" 11. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The Court may ascertain his suitability as a witness by s^ putting questions to him and even if no such question had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that were being put to him. (Vide Himmat Sukhadeo Wahurwagh v. State of Maharashtra, (2009) 6 SCC 712). 12. In State ofU.P. v. Krishna Master, (2010) 12 SCC 324 : (2011) 1 SCC (Cri) 381: AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life andwould never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature." 7. In Mohd. Kalam vs. State of Bihar, (2008) 7 SCC 257, the Hon'ble Supreme Court held as follows: "7. In Panchhi v. Stete of L/.P., (1998) 7 SCC 177, it was observed by this Court that the evidence of a child ^ ^-. 8 witness cannot be rejected outright but the evidence must be evaluated carefully and with greater circumspection because a child is susceptible to be swayed bywhat others tell him and thus a child witness is an easy prey to tutoring. The court has to assess as to whether the statement ofthe victim before thecourt is the voluntary expression of the victim and that she was not under the influence of others." 8. Ku. Nidhi Meshram (PW-6) deposed that on the fateful day, at about 12 Noon, she was sleeping in the house. Her brother had gone for tuition, father had gone to his duty and mother was sleeping on the bed. House of the appellant was situated after three houses of their house. The appellant did not do any work. He was engaged in theft. On that day, the appellant assaulted her and her mother with a Knife. The appellant gave Knife blows on hand and head of her mother. On assault by the Knife, she had wept. She further deposed that on return of her father to home at 3 P.M., she narrated him the incident. The appellant had assaulted her and her mother. She and her father had gone to lodge the First Information Report (Ex.P-11). 9. Rajesh Meshram (PW-9) deposed that when he returned home from his duty at 3 P.M., he found that the door of his house was closed from inside. He knocked the door and rang the doorbell, but the door was not opened. Thereafter, he asked a young boy, who is a relative of the appellant, to enter the house jumping from its back. The boy entered the house and opened the door. When he entered the house, he saw his wife Archana (the deceased) lying on ^:^ |^S|' ^^^. ,ro& :'3 the bed. She had died. Blood was oozing out of her hand and neck. His daughter Ku. Nidhi Meshram (PW-6) was sitting near dead body of his wife. Blood was oozing out of head and back of Ku. Nidhi Meshram (PW-6). His daughter told him that the appellant had come to the house and fled after assaulting them. Almirah of the house was opened. In cross-examination, he deposed that police recorded his statement on the fateful day itself. 10. Ku. Nidhi Meshram (PW-6) narrated the incident to her father immediately on his arrival to home and the First Information Report (Ex.P-11) was lodged by her father Rajesh Meshram (PW-9) promptly. In the First Information Report (Ex.P-11), it is mentioned that when Rajesh Meshram (PW-9) entered the house, he saw his wife Archana (the deceased) lying on the bed. She had died. Blood was oozing out of her hand and neck. His daughter Ku. Nidhi Meshram (PW-6) was sitting near dead body of his wife. Blood was ' oozing out of head and back of Ku. Nidhi Meshram (PW-6). His daughter told him that the appellant had come to the house and fled after assaulting them. 11. The above evidence is admissible under Section 6 of the Evidence Act, 1872. In Sukhar vs. State of U.P., (1999) 9 SCC 507, the Hon'ble Supreme Court observed that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. Thestatement sought to be admitted, therefore, as forming part of res gestae, must have been made "^^%&;:^.;,'}^^' 6--- 10 contemporaneously with the acts or immediately thereafter. The essence of doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of same transaction" that it becomes relevant by itself. 12. In the present case, Dr. U.S. Agrawal, Naib-Tahsildar (PW-4) deposed that he recorded statement of Ku. Nidhi Meshram (PW-6) on 25-2-2002 vide Ex.P-5. Ku. Nidhi Meshram (PW-6) also deposed that her statement was recorded in a hospital vide Ex.P-5. It appears that statement of Ku. Nidhi Meshram (PW-6) was recorded by Dr. U.S. Agrawal, Naib-Tahsildar (PW-4) under Section 32 ofthe Evidence Act vide Ex.P-5. Statement of Ku. Nidhi Meshram (PW-6) was recorded as a dying declaration, however, she survived. Her statement cannot be treated as a dying declaration, but has to be treated as a superior quality/high degree than that of a statement recorded underSection 161 Cr.P.C. 13. In Ranjit Singh and others vs. State of Madhya Pradesh, AIR 2011 SC 255, the Hon'ble Supreme Court held as follows: "23. In Sunil Kumar & Ors. V. State of M.P., AIR 1997 SC 940, this Court dealt with the issue and held: "...... that immediately after PW. 1, injured witness was taken to the hospital and his statement was recorded as a dying declaration which, consequent upon his survival, is to be treated onlv as a statement recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. This statement recorded by the Magistrate at the earliest available opportunity clearly discloses the substratum of the prosecution case including the names of the appellants ^ 11 as assailants and there is not an iota of material on record to show that this was the upshot of his tutoring. On the contrary, this statement was made at a point of time when PW.1 was in a critical condition and it is difficult to believe that he would falsely implicate the appellants leaving aside the real culprits........ that there was only some minor inconsequential contradictions which did not at all impairhis evidence. Then, again, as already noticed, the evidence of the doctors fully supports his version ofthe incident." (Emphasis added) 24. In Maqsoodan & Ors. v. State of U.P., AIR 1983 SC 126, this court dealt with a similar issue wherein a person who had made a statement in expectation of death did not die. The court held that it cannot be treated as a dying declaration as his statement was not admissible under Section 32 of the Indian Evidence Act, 1872 (hereinafter called the Act 1872), but it was to be dealt with under Section 157 of the Act 1872, which provides that the former statement of a witness may be proved to corroborate later testimony as to the same fact. A similar view has been re-iterated by this court in Ramprasad v. State of Maharashtra, AIR 1999 SC 1969,astheCourtheld: "Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to 12 investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement ofa person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usableto corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof." ^ 25. This has also been reiterated in Gentela Vijayavardhan Rao & Anr. V. State of Andhra Pradesh, AIR 1996 SC 2791; and State of U.P. v. Veer Singh & Ors.,Air 2004 SC 4614. Thus, in view of the above, it can safely be held that in such an eventuality the statement so recorded has to be treated as of a superior quality/high degree than that of a statement recorded under Section 161 Cr.P.C. and can be used as provided under Section 157 oftheAct1872." 14. Dr. A.K.Mishra (PW-13) deposed that on 25-2-2002, at 3:45 P.M., he examined Ku. Nidhi Meshram (PW-6) and found (i) an incised wound of 4cmsx1cmxbone deep on her right parietal bone, (ii) a superficial incised wound of 1cmx0.25cm on her right scapular region, (iii) a transverse incised wound of 1cmx0.25cmx0.25cm on her left scapular region and (iv) a superficial abrasion of ^cmx^cm K^. 13 on her back. He further deposed that the injuries No.(i) to (iii) were caused by a hard and sharp weapon and Ku. Nidhi Meshram (PW- 6), aged about 6 years, was admitted in surgical ward of the hospital. His report is Ex.P-25. 15. N. Hariharno, Inspector (PW-12) deposed that he had recorded statement of the appellant under Section 27 of the Evidence Act, 1872. At the instance of the appellant, he had seized the Knife from a Well of Motilal (PW-10) vide Ex.P-18. Motilal (PW- 10) also deposed that disclosure statement of the appellant was recorded by police and at the instance of the appellant, the Knife was seized by the police from the Well vide Ex.P-18. 16. We have carefully perused the evidence of Ku. Nidhi Meshram (PW-6) and Rajesh Meshram (PW-9). Ku. Nidhi Meshram (PW-6) specifically deposed that on the fateful day, the appellant entered the house and assaulted her and her mother Archana Meshram (the deceased) with the Knife. From the above, it is apparent that Ku. Nidhi Meshram (PW-6) had no any motive to implicate the appellant falsely. Her statement is clinching and cogent. 17. On due appreciation of the entire evidence, we find that the testimony of Ku. Nidhi Meshram (PW-6), who is an eye-witness, is wholly reliable and can be based for conviction of the appellant and, therefore, the finding of the learned Special Judge convicting the appellant on the basis of the evidence of the child witness (Ku. Nidhi Meshram - PW-6) does not call for any interference by this Court. 14 18. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge Bini/Gopal