_ \. ^/A^ "^y-'^^a HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri Sunil Kuniar Sinha, J. HMitB3 Criminal Appeal No. 338 of 1993 Dhelau & Another Vs. The State of M.P. (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA J ^L-^T^-^- Sd/- Chief Justice J[^/08/2010 Post for Jud@nen^/3 /08/2010 L,____ '' Sd/- /5 /08/2010 RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:06 +0530 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 338 of 1993 1 Dhelau son of Rusava Kurmi, Aged 32 years 2 Gaitribai wife of Dhelau Kurmi, aged 30 years Both resident of village Bhita, P.S. Kunda, District Bilaspur (MP) (Now Chhattisgarh) Verstis The State of M.P. (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 19731 Appearance: Mr. Ashok Das Vaishnav, Advocate for the appellants. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (13 .08.2010) Following judgment of the Court was deUvered by Sunil Kuniar Sinha, J. (1) This appeal is directed against the judgment dated 6.4.1993 passed in Sessions Trial No. 270/88 by the Fourth Additional Sessions Judge, Bilaspur. (2) Appellant No.l-Dhelau has been convicted u/ss 302/109 SE 201 IPC and sentenced to undergo imprisonment for life 85 R.I. for 7 years with a direction to run the sentences concurrently; and Criminal ApuealNo. 338 of 1993 appellant No.2- Gaitribai has been convicted u/s 302 IPC SE sentenced to undergo imprisonment of life. (3) The facts, briefly stated, are as under:- Appellant- Gaitribai is the second wife of appellant- Dhelau. Deceased-Bundkunwar, a girl aged about 6 years, was the daughter of appellant No.l from his first wife. The case of the prosecution is that appellant No.2 used to treat her with cruelty. On 24.12.87, appellant No.2 assaulted her, on account of which she sustained fracture on left temporo- parietal bone and succumbed to the above injury. The two appellants, with an intention to cause disappearance of the evidence of offence, buried the dead body in grave-yard. When appellant No.l was performing burial, village kotwar Dharam Das (PW-1) saw it and lodged a merg intimation on suspicion. The police party came to the village on 26.12.87 and the dead body was exhumed. After the post-mortem examination, it revealed that fhe deceased has sustained on ante-mortem bruise of 2 inch x 2 inch on the skull and there was a fracture ofleft tempero-parietal bone. The case of the prosecution was based upon the sole testimony of single eye-witness namely Ku. Ranudevi (child witness - PW-12) aged about 8 years. The learned Sessions Judge relied on the sole testimony of Ranudevi (PW-12) and convicted and sentenced the appellants as aforementioned. (4) Mr. Ashok Das Vaishnav, leamed counsel appearing on behalf of the appellants, argued that Ku. Ranudevi (PW-12) was not a reliable witness; her 161 statement was recorded after about 3 8s 1/2 months; during such a long period, she did not disclose the incident to anybody else; there is no corroboration of her \ ^ evidence; even otherwise also there are many discrepancies in her \ t --:;».[^:>t' ^lt^i^g Criminal Auoeal No. 338 of 1993 evidence. Therefore, the conviction based on the sole testimony of PW-12, Ranudevi (child witness), cannot be sustained. (5) On the other hand, Mr. Akhil Agrawal, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In Bharvad Bhikha Valu & Others -Vs- The State of Gujarat, AIR 1971 SC 1064, the Supreme Court held that even if there are no infirmities in the evidence of a child witness, it would be prudent to seek corroboration ofsuch evidence in view of the tender aged of child witness. (8) In Dattu Ramrao Sakhare & Others -Vs- State of Maharcishtra. (1997) 5 SCC 341, the Supreme Court said that the court must see that the child witness is reliable and the demeanour of the witness is like any other corapetent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. (9) In Panchhi and Others—Vs-State of U.P., AIR 1998 SC 2726, the Supreme Court held that the law is that evidence of a ^:^"..,^-^^ "'^ii •(:. ^ir< Criminal Aopeal No. 338 of 1993 child witness must be evaluated more carefully and with greater circunispection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. (10) Referring to various other judgments, the Suprerae Court held in the matter of itatansinh DalsukHbhai Nayak -Vs- State of Oujarat, (2004) 1 SCC 64 that conviction on the basis of child witness is perraissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. • (11) Therefore, it is well settled that the evidence of a child witness has to be evaluated wifh great care and caution and greater circumspection and its credibility has to be examined in light of the facts and circumstances of each case and if it is found credible in aU respects it can be relied on for conviction in a criminal case. (12) It is on this principle, we shall examine credibility of Ranudevi(PW-12). (13) Ranudevi (PW-12) was aged about 10 years on the date of her examination before the Sessions Court which was conducted on 8.2.90. The incident took place on 24.12.87. Therefore, she was aged about 8 years on the date of the incident. She deposed that she saw that appellant No.2-Gaitribai assaulted the deceased on her head by a karchul (big-spoon). She had witnessed that. Cnminal AppealNo, 338 of 1993 Nobody except her could witness that. She further deposed that appellant-Gaitribai strangulated the deceased, due to which, the deceased died. Appellant Dhelau was not present at fhat time. He came there later on. The story which she told in the Court does not find place in her 161 statement (Ex.-D/2). In the said stateraent, she stated that appellant No.2 was assaulting the deceased by holding her ears and dashing her head against the wall. There is no whisper of streuigulation in her 161 statement. There is also no whisper about using karchul by appellant No.2 for assaulting the deceased. When she was confronted with her case diary statement regarding the above oraissions, she deposed that she stated all this to the police, and if the same are not raentioned in her case diary statement, she cannot tell the reasons for the sarae. (14) Apart from the above, we note that though the incident took place on 24.12.87 but her 161 statement was recorded on 18.4.88. She admitted in her cross-examination that she stated the above facts to the police officer for the first time and thereafter she has deposed in the court and had not disclosed these facts to anybody else. She further admitted that the police had interrogated her after 4 months of the incident. She further admitted that on the 2nd & 3rd day after the incident, police had visited their village and thereafter also, on raany occasions the police visited their village regarding investigation, but she did not disclose all this to the police earlier to 18.4.88 when her 161 ,-ail^^! t^K'N^;J':ii8 t^^;^=-.;-i^|!i Criminal Appeal No^338 of 1993 statement was recorded. Sub-Inspector-Chandraprakash Jharia (PW-15), is the Investigating Officer. He also admitted that he recorded 161 statement of Ranudevi (PW-12) on 18.4.88. He was asked about the reason as to why he recorded the statement at Such belated stage, he could not offer any explanation for the same. In Balakrushna Swain -Vs- The State of Orissa, AIR 1971 SC 804, the Supreme Court held that unjustified and unexplained long delay on part of Investigating Officer in recordin^ statement of material eye witness during investigation of murder case will render evidence of such witness unreliable. (15) We note yet an another peculiar feature in the prosecution case that on one hand the statement of PW-12 was recorded on 18.4.88 and she was cited as last witness in the charge-sheet, and on the other hand, the charge-sheet and the final report were also prepared on the same day, as if the police was waiting for the statement of the said girl and after such statement no further investigation was required. If we look upon the overall picture of the case, the case of the prosecution was that the deceased was assaulted by karchul on her head. It was based on sole testimony of PW-12 who was a child witness. There are material omissions in her 161 statement. In 161 stateraent, there is no whisper that the deceased was assaulted by appellant No.2 by a karchul or she was strangulated by her, whereas, all this was deposed in her court evidence. Not only this, the versions of strangulation was also not supported by vatti ^ -^ Criminal Appeal No. 338 of 1993 the medical evidence and over SE above, the sole eye-witness disclosed all this to the police after more than 3 &, Vs months of the incident. (17) In the above facts and circumstances of the case, we are unable to accept the testimony of Ranudevi (PW-12) and the conviction based on the sole testimony of PW-12 (child witness) cannot be sustained. The leamed Sessions Judge, in our considered view, erred in law in relying on the sole testimony of PW-12 for conviction of the appellants under the aforementioned Sections ofIPC. (18) In the result, the appeal is allowed. The conviction and sentences awarded to the appellants u/ss 302/109 8s 201 and 302 IPC are set-aside. They are acquitted of the charges fraraed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Chief Jusdce Sd/- Sunil Kumar Sinha Judge