KMV @ : ’ ’ Criminal Appeal No. 1082 of 2003 Appellants (in iail) 1. Kanahyaram S/o Manlram Satnaml aged about 18 years 2. Manlshanker @ Karla S/o Lallu Satnaml aged about 21 years Dilchand, S/o Dukalu Satnami, aged about 20 years. 4. Subhash, S/o Goverdhan Kuwar, aged about 18 years. Santuram, S/o Bhagturam Satnami, aged about 18 years. 6. Premlal @ Tetka, S/o Dukalu Satnami, aged about 18 years.‘ Al! residents of Bendarkona, P.S. — Baico Nagar, Dist: Korba (C.G.) Versus Respondent State of Chhattisgarh : Au Shri H.S.hlwalia, counsel forthe appetlants. Shri Ashish Shukla, G.A. for the Ste. JUDGMENT (Passed on 2 2.09.2010) The following Judgment of the Court was delivered by R.L.Jhanwar, J. This appeal is directed against the judgment of conviction and order of senknce dated 18.10.2002 passed in Sessions Case No. 536 of 2001 by the Additional Sessions Judge, Korba whereby the appellants were convicted under Sections 450, 148, 307/34, 302/34, 302/34 and 302/34 of the l.P.C. and sentenced them to 7 years rigorous imprisonment with fine of Rs.10,000/- and in default to further simple imprisonment for 3 years each under Section 450 of the l.P.C., to undergo rigorous imprisonment for 1 year with fine of Rs.1,000/— and in default to further simple imprisonment for 3 months each under Section 148 of the l.P.C., to undergo rigorous imprisonment for Z years with fine of Rs.10,000/— and in /\ @ HIGH COURT OF CHHATTISGARH AT BILASPUR Coram Honbie Shri T.P.Sharma and Honble Shri Raieshwar Lal Jhanwar, JJ. APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Present at default to additional simple imprisonment for 3 years each under Section 307/34 of the l.P.C. for house-trespass, for rioting being armed with deadly weapons and for attempting to commit murder of Ku. Jyoti and life imprisonment simultaneously for thrice under Section 302/34 of the l.P.C. with fine of Rs.25000/— - Rs.25000/- each thrice and in default to. undergo further simple imprisonment for 5 years for commission of culpable homicide amounting to murder of three persons belonging to one family namely Brijnath Giri, Indrawati and Deepak. Whilesentencing them, it was further ordered to run all the sentences simultaneously. Brief case of the prosecution is that the appellants and the victims are the residents of the same village i.e. Bendarkoni. in the intervening night of 7th — 8th September, 2001, Brijnath Giri, lndrawati, their son Deepak Kumar and daughter Ku.JyOti were sleeping in different rooms of their house. At the rearward of Badi, some persons armed with deadly weapons first made whole in door of Badi and then entering the house of victims in furtherance of common intention for committing intercourse and murders 'assaulted and caused injuries to Ku. Jyoti, Deepak Kumar, lndrawati and Brijnath Giri by deadly weapons repeatedly. Due to injuries sustained by them, Deepak Kumar, lndrawati and Deepak Kumar died instantaneously whereas Ku. Jyoti fell unconscious. On the very next day one person namely Sri Bhagwan @ Dadi Baba came to the shop of the 2. mF victims and‘in order to pay money for borrowing materials from the shop of» victims, called Brijnath Giri and upon no reply from inside, he knocked the . door but in vain. Thereafter, he asked the reason for not opening the shop of Brijnath Giri to the nearby residents. Ultimately, accompanying with nearby residents he went towards Badi attached with the house of the victims and saw the opening door of Badi and also found big whole made in the wall. Upon peeping into the house of the victims, he found the bodies of Brijnath Giri and his daughter lying on the cot and the floor was found. bloody. Then, complainant - Sri Bhagwan called on Sarpanch Lakhan Singh, Panch Dev Giri and Ashrafilal and again came to the spot with them saw on the spot the dead bodies of Brijnath Giri, lndrawati and Deepak Kumar along with Ku. Jyoti, who is still on the floor in an unconscious condition. Then and there, she was referred to nearby hospital. Thereafter, the complainant — Sri Bhagwan accompanying with Sarpanch Lakhan Singh and PanCh Dev Giri went to police station and ‘ D . incident. Cloths of the deceased were seized Vide Ex.P.25. Axe was examined by Dr. A.D.Purena P.W.11 vide Ex.P.31. Spot map was prepared vide Ex.Pt74 by Patwari P.W.14. In order to confirm whether the accused persons participated intercourse while committing heinous and brutal murders, they were sent for medical examination vide Ex.P.53 to P.64 and upon their examination, Dr.M.P.Rathore P.W.12 found no external injury over their persons. It was opined by Dr. M.P.Rathore P.W.12 that sexual organs of the accused persons are well developed Sealed and seized articles were‘sent to F.S.L. for chemical examinations vide Ex.P.73. The Forensic Science Laboratory vide its report Ex.P.75 confirmed the blood found on the seized articles and especially on axe. 4. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). After completion of investigation, charge was filed against the accused/appellants in the Court of Judicial Magistrate First Class, Korba who in turn committed the case to the learned Sessions Judge, Korba. The learned Additional Sessions Judge received the case on transfer for its trial. 5. Injorder to prove the guilt of the accused persons, the prosecution examined as many as 14 witnesses. The accused persons were also examined under Section 313 of the Code in which they denied the circumstances appearing against them and pleaded their innocence and false implication. 6. After appreciating the evidence available on record, the learned. Additional Sessions Judge convicted and sentenced all the appellants, as aforementioned in paragraph 1. 7. Shri H.S.Ahluwali'a, learned counsel for the appellants and Shri Ashis‘h Shukla, learned G.A. for the State are heard at length. We have perused the record of Court below and impugned judgment. Shri H.S. Ahluwalia, learned counsel for the appellants vehemently argued that present case is based on circumstantial evidence and evidence of Ku. Jyoti P.W.4, aged 8 years, who is relative and highly interested witness. Her evidence does not inspire confidence, trustworthy and is not safe to rely. It was submitted that at the time of examination she was aged only 8 years and clearly revealed that she is completely a 8. \ a tutored witness. The appellants were not known to her. it was further argued that at the time of commission of offence she was sleeping partly and identification of the appellant has also not been done and in the absence of such identification parade how she could identify the appellants as assailants of her family is not clear. At the time of \r ’ commission, she did not even raise any alarm and even she did not know the duty to speak truth. lf she is really afraid of incident, then how could she notice the murder of her family members? Statement of this witness was taken after long time of incident and no explanation was forthcoming from the prosecution as to where she was admitted and why her statement was taken after a long period. She has not stated the names of accused persons, therefore, her evidence is not reliable and conviction of the appellants cannot be the basis of evidence of this witness. lt was further argued that seizure witnesses did not even speak about the seizure and disclosure statements. The conviction of the appellants is also based on the evidence of Investigating Officer l.C.Shandilya‘P.W.13 because P.W.5 ‘Tribhuvan Singh Kanwar and P.W.8 Lakhan Singh witnessed the seizures made by P.W.13 l.C.Shandilya and thereafter since P.W.5 Tribhuvan Singh Kanwar and P.W.8 Lakhan Singh have turned hostile witnesses, therefore, in that situation the conviction of the appellants is not sustainable. Prosecution has also not been able to prove motive of the appellants being involved in commission of heinous offence. The report of F.S.L. did not show that the blood stains were found on the seized articles. Lastly, he argued that appellant No.1 Kanahyaram was aged near about 14 years on the date of incident and conduction of the, trial upon a Juvenile along with co-accused is illegal. The learned A.S.J. has erred in convicting and sending him to jail, therefore, appellant No.1 should be released and should not be 'sent for conviction before the Juvenile Justice Board. He placed reliance in the matter of Jagjit Singh @ Jagga vs. State of Punjab, 2005 (1) Acquittal 554 (SC), Dharambir v. State (NCT of Delhi) & Ann, 2010 Cr.L.J. 2852, Bhagwan Singh and others vs. State of M.P., AIR 2003 SC 1088, Bhimapp Chandappa Hosamani & Ors. vs. State of Karnataka, 2006 (2) Supreme 382 and Abdul Farid Khan vs. State of C.G., 2004 (2) C.G.L.J. 311. 9. On the other hand, Shri Ashish Shukla, learned counsel appearing for the State‘vehemently opposed the criminal appeal and argued that \ l// according to Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act of 2000‘) appellant No.1 — Kanahyaram is required to be sent to Juvenile Justice Board for awarding proper sentence after maintaining the conviction. The learned trial Judge has not committed any error in convicting appellant No.1 along with co— accused. He further argued that the conviction of the appellants is based on the evidence of child witness Ku. Jyoti P.W.4, who is aged 8 years. Her intelligent quotient is upto the mark. She knows the duty to speak truth and she was able to answer the questions. She is not tutored witness because the appellants while committing three murders of mother, father and brother, Ku. Jyoti has witnessed the incident and after commission of such brutal murders, the appellants also assaulted her causing grievous injuries, due to that she fell unconscious. Therefore, the question that she is a tutor witness does not arise. Motive can be inferred from the circumstances. Injured witness Ku. Jyoti was aged 8 years and lso child witness in this case; therefore, she has categorically deposed in her statement each and every action ofthe appellants. Her statement was t recorded after 11 to 12 days because she was admitted in hospital due to grievous injuries sustained by her and certainly she would have suffered pain and agony from such injuries, therefore, inordinate delay has occurred and not otherwise. He also argued that the incident took place in the night and lantern light was there and in the lantern light the incident was witnessed by Ku. Jyoti, in such a condition, why this witness has falsely implicated these accused persons, which has not come from the evidence of the appellants because the appellant are well know her. She has ample opportunity to see the accused persons because she was asked some questions from the appellants’ side about the death of her mother, father and brother. This apart, seizure of tangia has also been proved by the prosecution and F.S.L. report also confirmed the blood stains‘ on the tangia. ln these circumstances, the evidence of Ku.Jyoti inspires confidence, trustworthy and reliable and the learned lower Court has rightly convicted and sentenced the appellants. 10. ln order to appreciate the arguments advanced on behalf of the parties, we have carefully and minutely examined the evidence available on record. ln the present case, homicidal death as a result of fatal injuries found over theidead bodies of Brijnath Giri, lndrawati and Deepak Kumar 3 /~V// a \ has not been substantially disputed on behalf of the appellants, even otherwise it was established by the medical P.50 evidence and EX.P.52 of Dr. which A.D.Purena revealed P.W.11 and autopsy report EX.P.48, over the Ex. bodies of Brijnath Giri, lndrawati and that fatal injuries were found se fatal injuries were ante-modem in nature. Deepak Kumar and tho \t a Death of the deceased was homicidal in nature. t1. lt is evident from the evidence of P.W.1 Sri Bhagawan @ Dadi Baba credit that basis this from witness his used shop to and provide has daily facilitated provisions him to to. Brijnath borrow Giri daily on provisions from Korba also. On being called by Brijnath Giri, he came to Brijnath Giri to collect the money at 6.00 am. and after the reaching house the of house of Brijnath he called him repeatedly. Since no reply e from inside, then he Knocked the door an d asked him about not d even nobody came has com from i ope nside. Thereafter, he saw one person d the an one big whole in the wall ning shop by Briinath Giri and he Badi showe accompanied by that person and dition. This witness again saw r seeing blood, he fell unconscious and the This witness further and then this witness went towards found backdoor of Badi was nt in towards open con there and p‘eeped inside and saw one bigger whole and we blood was scattering, Afte A with him also ran away. person deposed accompanied that after regaining conscious, he went ons towards and after village apprising to call Sarpanch, Panch and Patel and also other pers he reached the spot along with those them about the incident again ath Girl, lndrawati and Deepak they admitted Ku. Jyoti in tation and lodged report V EE . d saw the dead bodies of Briin Kumar. At that time Ku.Jyoti was alive and persons an Korba Ex.P.4. Hospital. P.W.6 Panchdev After that, Giri he‘went stated to that police after s seeing the dead bodies of three persons and injured Ku.Jyoti, r, The evidence of these witnesses makes but by these in which three persons Were they took injured witness Ku.Jyoti to hospital and reported the matte crystal clear that though they did not witness the incident witnesses heinous and barbaric offence, one child was seriously injured i nside their family brutally murdered and home, has come in light. ourt revealed that Budru, one of the accused f heinous crime along with 12. The record of lower C persons, and participated in commission o present appelalnt, absconded. \ /‘ ,/ Q i \ 13. In accordance with Section 118 of the Evidence Act, all persons shall be competent to testify uniess the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In case of child i.e. person of tender age, if he is not able to understand the questions or not able to answer the questions then he would not be competent witness. ln order to ensure whether a child of tender age is competent witness or not, the Court is required to satisfy itself that whether he or she understands that it is his/her duty to speak truth, he or she has sufficient understanding to testify his/her evidence being heard and, he or she understands the questions put to him or her as a witness and give rational answers to them which can be understood. The Apex Court has dealt with the evidentiary value of child witness in Suryanarayana v. State of Karnataka, (2001) 9 SCC 129, Dhanraj and others v. State of Maharashtra, AIR 2002 SC 3302 and Shivaji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55 in which the Apex Court held that evidence of a child witness is not required to be rejected Q per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality thereto and reliability can record conviction based thereon and where a sole eye witness is of teenager, his / her evidence has to be scrutinized with care and caution if he l she is able to understand the test of cross- examination successfully and there is other infirmity it should not be discarded lightly. While observing such, the Apex Court cast a duty on Court that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state reasons for such conclusion. 14. ‘ln this case, the only crucial and sole witness produced by the prosecution is Ku.Jyoti who is the daughter of Brijnath Giri and lndrawati (since deceased) and sister of deceased Deepak Kumar (since deceased). At the time of examination her age was 8 years. Before examination, the Court has asked questions to ensure that whether she understands the duty to speak truth and was able to understand the questions put to her and also able to answer those questions rationally and after satisfying itself, the Court started to examine this witness. Upon questiqns being asked to her, she has specifically stated that she is studying in Class—Ill. Every person including person of tender age like child is competent witness unless he or she does not understand the questions put to him/her or from giving rational answers to those questions. ln this case, upon rational answers to three questions the Court was satisfied that she can understand the questions put to her. In her evidence, she has deposed that she knew Manishankar, one of the accused persons and it has also come in her evidence paragraph 1 that she named the accused persons including absconded accused i.e. Dilchand, Subhash, Kanhaiya‘ Santu and Budru (since absconded) and only these accused persons have committed murder of her mother, father and brother and caused grievous injuries to her. She could easily identify the accused persons, who were produced in Court. She has witnessed the incident in the lantern light while the accused persons committing murders of her father — Brijnath Giri, mother —- lndrawati and brother — Deepak. She has specifically deposed that all the accused persons, who are present in Court, have first assaulted her mother, father and brother, due to that they have died. lt was further deposed by her that the incident occurred at 12 0’ clock i.e. mid night, she was sleeping with her mother whereas her brother and father were sleeping together at verandah. ccording to her, accused persons holding knife and axe came to the spot. First of all, they assaulted her father, thereafter her mother and then her brother. After that, they assaulted her. Upon which, she asked about her mother and father to the accused persons. The accused persons replied her that they were no more and by replying such they also gave a blow to her with axe. She has categorically deposed that Dilchand, one of the accused persons, gave a blow to her with axe and thereafter beat her upon forehead and ear. She has shown the injuries sustained by her on forehiead and ear. ln the morning, persons came and gathered there and she was taken to hospital. ln her cross—examination by the defence, she has contradicted the statement Ex.D.1 given before the police, which has no much relevance looking to her age. ln her cross-examination, she has further deposed that at the time of incident she was partly sleeping and was in part awakening and lamp was burning. lt' revealed that in the lantern light she has witnessed the incident. She has denied, in her cross- examination, that she was being tutored by her uncle. lt revealed that whatever she has witnessed. the incident in the lantern light she has ' ? 1‘;%§ A 10 actually deposed in the Court. It also revealed in her evidence that she was having sufficient opportunity to see the accused persons at the time of commission of offence that too in the lantern light. It further revealed in her cross-examination that Subhash, one of the accused persons, was also residing behind her house. Therefore‘ she has identified the aforesaid appellants in the Court. lt is also pertinent to mention here that if this witness would not have seen the incident, then certainly this would have become blind murder case. ln such situation, it was also not possible for the police to come to conclusion that only these accused persons have committed such brutal murders of three persons. Ku.Jyoti is the only witness who witnessed the entire incident and saw the accused persons while commission of offence in the lantern light. lf she did not know the ' accused persons, then how can she identify them in Court? ln this case, no identification parade was required because the accused persons were identified when they were produced in Court by the Child witness Ku. Jyoti. 15. Thus, it is clear from her evidence that she knew all the accused personsand accused persons have not stated in their statements under Section 313 of the Cr.P.C. anything as to they were falsely implicated by child witness and if it is held that the accused persons were falsely implicated by Ku. Jyoti, then the accused persons should have shown enmity between them and this child witness and also with her maternal uncle. But thé accused persons have not rebutted anything on this point. t lt is also clear from her evidence that she was not tutored by her maternal uncle since she was sufficient opportunity to see the accused persons even in lantern light and on that basis she could identify the accused persons produced in Court. lt was also her natural conduct when she was sleeping and awoke partly because if she did not do so, then the appeuants/accused persons would have also murdered her. Her evidence is well corroborated by the evidence of Dr. A.D.Purena P.W.11 who has conducted autopsy on dead bodies of Brijnath Girl, lndrawati and Deepak Kumar and found fatal injuries over their bodies which reveal that due to fatal injuries death of deceased took place and death was opined to homicidal in nature and also corroborated by disclosures statements of Cloths and seizures thereof. The child witness Ku.Jyoti was also medically examined on‘8.9.2001 by Dr. Arun Kumar Tiwari P.W.7 who upon examination on her found one lacerated wound caused by the appellants Q 11 by axe and X-ray was advised for her skull. This shows that the accused persons after committing three murders caused grave injuries due to that she fell down and became unconscious. Thereafter, she was admitted in amhospitai because of serious injuries caused by the appellants and certainly it might have taken time to recover from such ghastly injuries and after that the prosecution has recorded her statement under Section 161 of the Cr.P.C. and for that the prosecution cannot be blamed. 16. ln these circumstances, the evidence of Ku. Jyoti P.W.4, aged 8 years, at the time of commission of offence by the appellants, cannot be discarded lightly and is safe to rely. The defence has cross-examined this witness but nothing has been elicited from her cross—examination to disbelieve her evidence. Moreover, she is also solitary witness for substantially leading her evidence in the Court, which inspires confidence and trustworthy and also sufficient for conviction of the appellants. 17. So far as seizure of axe is concerned, it was seized from the place of incident and sent it to F.S.L. for chemical examination and bloods stains were found on it. Ex.P.10, disclosure statement is of Premlal and the seizure of the cloths as disclosed by Premlal is EX.P.16. Ex.P.11, disclosure statement of Subhash and on the basis of which cloths worn by him at the time of incident were recovered vide Ex.P.17. Ex.P.12 is the disclosure statement of Santu, according to which, his wearing cloths at the time of incident were recovered by Ex.P.18. Ex.P.13 is disclosure b statement of Dilchand and at his behest, his cloths worn at the time of incident were seized vide Ex.P.19. Manishankar made disclosure statement Ex.P.14, according to which, his cloths at the time of commission of offence, were seized vide Ex.P.20. Ex.P.15 is the disclosure statement of Kanhyaram and his cloths were seized vide Ex.Pi1. All the cloths, which were seized from the accused persons, according to their memorandum, were having blood stains, which were sent for