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' ~fE i ^mSswswaf, [ i,i:ii—ji»^afflia ^|uN13!5;:ffil§S '!^'31;''i.n:,;'.: .;i'!':!ki:11i'^').il!l li;I )0|1 Kij'-iSWU^ -.^ltj.i^.'J -l.i-;-B A..,,,- is'v-' iffi" lj|'"IS-^(!00-Sl|^||;i^^ :(!,i:i:!::'ll:" WKSBI®^ l1!;ittj^S^i^y;^t .••;,:^'iBii.; ;^t^|^ ti2li ^^^ J^:^ • ;i:-HC-22 •3~a^mw., fS-fiwiw,Jwiwy ;/-! _£^;.^..3.//ZX 298— 3IK?[q^ sn^T ^^TT^ -<Hl^a 3llt?I ^WfWHf^T chi<41d^1l ^H^'^f&^i ^I^R ^? sriiair aii^r r. H.P. Agrawal with Mr.^ajendra Soni, learned counsel for the forthe respondent/State. Shri U.N.S. Deo learned G.A Sy this appeal under Section 374(2) of the Code of. Criminai !rocedure the accused/appellan| has challenged the tegality and correctness oi the judgment of cAnviction and order <rf sentence dated 22.02.96 passed in Session Triajl No. 159/94 whereby the learned ! Additional Sessions Judge, Ambik^pur, Distriet Surguja after holding fhs iccused/appetlant guilty for commjssion ofthe offence under Section 302 of the Indian Penal Code sentenc^d him to undergo imprisonment for life and to pay a fine of Rs. 2000/-, i^i default of payment of fine to further underao Rl forsix months. -i-_ - XLHC-22 -s^f '••-liww^. ^rtwre, wiwy. tfrwTrwira". _A..^.,.9^/?.6 •aii?!q? h-u'k 3ni?i .S^if^vH^ aiRCTTOHW^to - 2-- WlfeNh tIPT~f? ^ foS)' TfSRSR •^ Sfrfim awSl ISit^" 2. Case of the prosecution is fhat Urmiia, sister of the deceased lodged a report P-5 in Police Station f-akhanpur to the sffect that 4-5 years back from the date of incident the mtther of Jagamath had become mad, she was abusing her father on wt|ich her father pushed her, thereby mother of Jagamath received injurie^ on her head and therefore accused Jagamath was having grudge again^t her father and he used to say that her father was practfeing witehcraft. Pn the fatefu! day when her brother Naresh was taking buffalp after grazijig, Jagarnath assaulted Naresh with axe on his head and neck near the lield of Ram Sai as a result of which Naresh fell down. Kunti came and Normed her about the incident and thereafter she aiong with Kunti and |wife-of Naresh went to the place of oceurrence and saw the dead body of Naresh. The incident was witnessed by Sukmania. Receh/ing this report $tation House OfRcer, Police Station Lakhanpur registereda crime under ^ection 302 ofthe indian Penal Code, left for the scene of occurrenceand rireparect Panchnama P-7 of the dead body of Naresh after giving notice p-6 tothe Panchas. Dead body Qf Naresh was sent for post mortem e>jamination to Primary Health Centre, Udaipur where Dr. A.R. Jayant PW-1 gcondiicted post mortem examination on the body ofthe deceased and pr^pared post mortenT report P-1. The Station House Officer also made inqiiiry from the doctor under P-2 as to whether the axe, Lungi and Baniya!Ji of the accused were stained with ! blood or not and whetherthe injuri^s which were found on the body of Naresh couid be caused by the ax^ in question. Vide P-2, the doctor repiied that it was possible to causej the injuries by the axe in question which were found on the body of N^resh. The clothes of the deceased + XI-HC-22 -^Sj ^piRTq, »^CTS,'^'"W ^&c.^^..31LW an^iqiT 'R'lwan^t I fe.'gftg | an^i^giwaftg qiFTOri^liItRS'q q? SK^ SIT^l were taken into possession under P-p and blood stained and plain soi! was taken into possession under P-9.|The axe, Lungi and Baniyan ofths aecused were taken into possession upder P-10. The site plan P-13 ofthe place of occurrence was prepared jbythe Patwari. The Investigating. Officer prepared site plan P-14. Aftericomptetion ofthe investigationthe charge was filed in the court of Judiciqil Magistrate First Class, Ambikapur who in tum committed the case to the isourt of Sessions Judge, Ambikapur from where learned i Additional Sestions Judge, received the case on 3. Prosecution in order to edtablish the cha^ge against the accused/appellant examined ten witn^sses. Qn the other hand statement of the accused was recorded under ^ection 313 of the Code of Criminal Procedure in which he denied the pro^ecutiorf evidence appearing against him andstatedthat he is innocent. Ledrned Additional Session Judge after hearing the counsel for the parties convicted and sentenced the accused as mentioned in paragraph one ofthispudgrrient. ai 4. Homicidal death of Naresh is nqt in dispute. . 1 5. As far as invoh/ement of ttre j accused/appeHant in the crime in question is concerned, there is .only orje eyewitness to the incident namely Samania (Sukmania) PW-5 who inforrfied Kunti and in tum Kunti informed the sister of the deceased namely Ur|nila PW-4who todged She report in the police station. Learned trial Colirt at the time of examination of Samania assessed her age to be six <o seven years and the trial Court in i ! ' • XI-HC-22 -3s •^vnvn, ^ifiwre, ityiyy cy:::.a....a:iMi tBE 3!I^I'^ 311^; 3Tr%5;'?^nEir(^'f?n ^ - W^'VH 'cnlraf ^ 'fe'^ T'^RSR ^? 3tF.gtT sn-^t the first instance put some question^ in order to ascertain whether the witness was able to give answers aftef- understanding the qUestions put by the Court and the tria! Court reachedithe conclusion that the witness was able to give answer after understaniping the questions. In her evidence Samania PW-5 has stated that she iknew accused Jagamath who was 1 standing in the Court and he murder^d Naresh as at about 11 a.m. when she was drinking water, Naresh cam^ with buffalo, she saw the incident but she could not say as to with w^ich weapon the accused assaulted Naresh. Thereafter, in paragraph 18 ^gain she has stated that Jagarnath attacked Naresh with axe on his nepk as a result of which Naresh fell down, she went to her house and injformed her aunt Kunti. In the cross examination she has stated that she| had come to Court along with her aunt and her aunt had not totd her afe to what is to be said in the Court. She herself witnessed the incident ftfem a distance of about 100 ft. whole case rests on the testimony of tjiis witness, 6. Mr. Agrawal appearing on belTJalf of the accused/appellant argued that in paragraph 17 of her evidence tjiis witness has stated that she could not see as to with which weapon the ^ccused attacked the deceased and he further argued that even 'Kuntii has not been examined by the prosecution who informed Urmila aboi^tthe incident. 7. As far as the argument advancpd by Mr. Agrawal is concerned, it is true that this witness in paragraph 17 pf her deposition has stated that she could not see as to with which wteapon the accused assaulted the deceased but !ater on in paragraph 8 she has categorically stated that •^ ^ r-- ~\ ^l^^ XI-HC-22 •yst -^itiicra, y-diwita. 'i'?^ "<2- ^~\ c^.^:.^..^. •sn^T'm R;-fi<* 3ii^?r ?r-)^i<-^ ^l[ia SII^T'reatsr'sfei •3~ ^F'rfcraN wTCff •? ftczt •^-ari^'n 3TT^I Jagarnath attacked Naresh wjth axe the evidence of this witness. The r therefore, thers is no discrepancy in •qurement of the law before placing relianee on theevidence of a child witness is that the child witness is prone to tiitoring and hence the particularlywhen the evidence betraj Court should look for corroboration 1/straces oftutoring and ths evidence of a child witness wouid ahways stapd irretrievable stigmatized. It is not i . . ....'.. the law that if a witness is a child hi4 evidence shall be rejected, even if it is found reliable. The law is that ejvidence of a child witness must be evaluated more carefuily and with gifleater circumspedion because a child is susceptible to be swayed by wh^t others teli them and thus a child witness is an easy prey to tutoring.|At the same time theevidenGe of a child witness cannot be discarded o^i1y on the ground that he or she may change its version. The evidence 4f a child witness would rsquire the Court to scrutinize his evidence Vhith fcare and caution. 8. In the light ofthe above prinij:iple rfwe scrutinize the evidence of Samania PW-5, she has categorica|y stated that accused assaulted the deceased with axe and she has further stated that she immediately informed her auht about the incident. PW-4 Urmila sister of the accused who lodged the report in the Police $tation which was at a distance of 13 ! Kms. within four and half hours fr<)m the time of incident, has clearly mentioned that she was at her reslidence and Kunti, aunt of Samania informed her and thereafter she at^ing with Kunti went to the place of occurrence and saw the dead body of the deceased and there were injuries on the head and neck. In th[e FIR it has been clearly mentioned that the crime_ in question was j witnessed by Samania, therefore [•q^tfOT Xi-HC-22 sn^iqir iNi'STI^T 9^Hl=h ^f?^ ^^.:.^..31L/.^ s'- *»? <:hl^4lrf ^!IHd'S* ^ fec?t' •^ aipOT sniff witnessing ofthe crime by Sam^nia is corroborated bythe fact that her name flnds place in the FIR. M^reover as per the medteal report of Dr. A.R. Jayant PW-1, there werefr4° injuries, one was incjsed size of 2x1x3" on the head as alresutt of wtiich skull bone was the second incised wound wbs on the neck in .the size of 1 % x1 x 1! the doctor opined that the inj(iries were caused by the sharp object. The axe in question wa^ recovered from the possession of ised under P-10 by the Inve^tigating Officer and on inqulry frdm by the Investigating Officeij as to whether the injuries present on ofthe deceased eouid be c^used by the axe in qusstion, lied'that it was possible to c^uae the injurtes by the axe which were found on the body Samania stands corroborated by fact of Naresh. Therefore, the evidenc®of ^he medica! evidence and further by the that her name was mentioried in the FIR itself which was wthin four and half hours from th4 9. Therefore, we are of the the accused in the crime in evidence of Samania and other nature oftheweapon and part of it is evident that the accused cause his death. Moreover it is the deceased on the spur of th6 evidence on record it appear; forthe assault and when he saw any chance to the deceased h -5 consiidered opinion that the invoh/ement of is established on -aocount of the [circumstantial evidence. Looking to the [he body where the injuries were inflicted the deceased with an intention to a case where the accused assaulted st, in a sudden quarrel because from that the accused was already prepared jhe deceased immediateiywithout giving ^ assaulted him with axe in questton. [•rn^^fe^ assbulted riot mortien ffi XI-HC-22 -s^a ^qraRra, -g^twre, -feroy ^? <%/^- wqcfr gwr^i_.^^^.3^.^ a-n^^ii R-<i?k 3nt»! SBIIWWOT 1 si'i^sr^aiw-Hftg -?- '^OTfepiN tiw~S ^isvi ijSn?re ^ sipgi? sna?i <^ ^f' »•<,"" 1 - Therefore, in view of above, we ar^ unabte to accept the argument of counset for the appeliant that the offence against the aceused does not travel beyond section 304-11 ofthe IHC and he should be convicted under section 304-11 ofthe IPC instead ofs^ction 302 ofthe IPC. . 10. In view of above, we do notjfind any illegality or infirmity in the impugned judgment of the trial Coujl and accordingly the appeal bei devoid of merit is liable to be dismiss^d. It is accordingly dismissed. Sd/- L.C.BHADOO Judge Sd/- DHBtENDRA MISHRA. Judge