•K.-TSSS^Sa.i <\PPELLANT: (In Jail) HIGH COURTOF CHHATTISGARH, BILASPUR Criminal ARpeal No.85 of 2004 Johan Singh Gond S/o Son Sai aged about 35 years, R/o Lohrakot, P.S. Baradwar, Distt. Janjgir-Champa (C.G.) RESPONDENT: Versus State of Chhattisgarh Through P.S. Baradwar, Distt. Janjgir-Champa (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. Sachin Singh Rajput, counsel forthe appellant. Mr. Rakesh Jha, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma & Kon'ble hflr. R.L. Jhanwar, JJ ORAL JUDGMENT (15-2-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to thg judgment of conviction & order of sentence dated 9-6-2003 passed by the Additional Sessions Judge, Sakti, in Sessions Trial No. 10/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for causing culpable homicide amounting to murder of a seven years aged child namely, Sudama, convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for three months. 2. Judgment is impugned on the ground that conviction of the appellant is based solely on the statements of child witnesses which are not safe without further corroboration. 3. Case of the prosecution, in brief, is that on the fateful day of 21-11-2002 at about 1 p.m. a seven years old student namely, Sudama (since •vasi, ' '^^^lj j ''^^ ":'S'?,1?" deceased) came out from his school at the time of recess, the appellant who was standing in front of the school assaulted Sudama with stick and thrown him inside the school boundary. Nandlal Gond (PW-1) lodged the F.1.R. vide Ex.P-1. Sudama was immediately taken to the hospital for treatment and during the course of treatment, he died. Merg was recorded vide Ex.P-2. After summoning the witnesses vide Exs.P-6 & P- 7, inquest over the dead body of Sudama was prepared vide Ex.P-8. Spot map was prepared vide Ex. P-5. Dead body wassent for autopsy to Primary Health Centre, Baradwar vide Ex.P-9 and autopsy was conducted by Dr. J. Singh (PW-8) vide Ex.P-19 who found following injunes: - (1) Abrasion over left cheek of 2.5 cms. x 0.5 cm. (2) Abrasion over back of left ear of 1 cm. x 0.5 cm. (3) Contusion of 1.5 cm. x 0.3 cm. over head, bone of skull was visible. (4)Abrasion of 2.5 cms. x 0.5 cm. over left side offace surrounded by swelling. (5) Contusion over scalp of 2.5 cms. x 0.5 cm., bone was visible and was fractured. (6) Contusion of2 cms. x 0.5 cm. over back of head, bone was visible. (7) Contusion over right side of head of 2.5 cms.X 0.7 cm. x bone deep, bone was visible and was fractured. (8) Contusion near right eye of 2 cms. x 0.5 cm. x bone deep, bone was visible and was found fractured. On internal examination, multiple fractures of bone of head & vertebra were found. Mode of death was shock as a result of multiNe fractures of head and the death was homicidal in nature. 4. Sealed dothes of the deceased after autopsy were seized vide Ex.P-10. The accused was arrested vide Ex. P-12. Blood stained & plain soil were recovered from the spot vide Ex.P-21. One stick was recovered from the accused vide Ex.P-22. Seized articles were sent for chemical .f-^';"r- ,0''^il; 1 3 examination vide Ex. P-16 and presence of blood over the stick recovered from the accused was confirmed by the F.S.L. vide Ex.P-7. 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Sakti, who in turn, committed the case to the then Court of Sessions Division, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellant, the prosecution has examined as many as eleven witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against them, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that conviction of the appellant is based solely on the statements of the child witnesses which are not safe without further corroboration and the appellant has not committed any offence, even otherwise, his act does not travel beyond the scope ofSection 304 Part-11 ofthe I.P.C. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the case is based on the evidence of eye witnesses namely, Dileshwar (PW-2) & Vijay Kumar (PW-3). Although they are child witnesses, but their presence in the school at the time of recess along with the deceased is natural. Nothing has been brought by the defence in their cross-examination to discredit their testimony. Both the witnesses are competent witnesses under Section 118 of the Indian Evidence Act. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12.1n the present case, homicidal death of Sudama as a result of ante- mortem injuries has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. J. Singh (PW-8) & autopsy report Ex.P-19 which reveal that eight fatal injuries were found over the body of the deceased, most of injuries were upon head, bone was visible and multiple fractures of the bone of scalp was found, and the death was homicidal in nature. 13.As regards complicity ofthe accused in the crime in question, conviction is based on the evidence of Dileshwar (PW-2), aged about 12 years & Vijay Kumar (PW-3), aged about 10 years. Both the witnesses are child witnesses. Their evidence clearly reveal that the Court has asked as many as 6-7 questions to these witnesses to ascertain their understanding capacity and their duty of speaking truth, and after ascertaining the same, the Court has examined these two witnesses. The Court has taken proper care during the course of examination of these witnesses. Both the witnesses had categorically deposed that they were studying in the school and at the time of recess when they came out from the school along with the seven years old child Sudama, the appellant was standing near the school and he assaulted Sudama with stick over his head on which they went inside the school and informed the incident to their teacher. In their cross-examination, they had categorically stated that they were present on the spot at the time of ^ incident along with Sudama, that was the time of recess and they have seen the incident. 14.Both the witnesses are child witnesses, but the Court below has taken proper care at the time of examination of these witnesses and after satisfying itself that these witnesses were knowing the duty to speak truth and are able to understand the questions put to them, the Court below has examined these witnesses. Their evidence inspire confidence, their evidence are trustworthy and sufficient for drawing inference that the appellant is the person who has caused fatal injuries to deceased Sudama. 15.As regards motive behind the crime, 35 years' old appellant has caused fatal injuries to a seven years old child, when the child came out from the school at the time of recess, the child was not holding any weapon and there was no opportunity for the appellant for causing such injuries to the innocent child. The injuries caused by the appellant to the seven years' old child clearly show that the appellant has caused injuries with intent to cause his death. 16.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant under Section 302ofthel.P.C. 17.0n close scrutiinty, we do not find any illegality or infirmity 'in the judgment impugned. Conviction of the appellant is based on legal, clinching and substantial evidence sustainable under the law. 18.The appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. g^/. R.L. Jhanwar Judge Soma Sd/- T.P. Sharma Judge