HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGJ (DIVISION BBNCHl CRIMIHAL APPBAL N0.130 OF 2003 Abdul Farid KIian - Versus - State of Chhattisgarh lfrEil! ^hs'<>!gt;S!^ JUDGMENT FOR CONSIDERATION HON'BLE THE CHIEF JUSTICE Sd/- L.C. Bhaduo Judge Sd/- ChiefJustice 2^.11.2004 POST FOR JUDGMEST ON<S^- NOVEMEER. 3004 Sdf- JUDGE ..11.2004 <^t :::?:;.l:,:-;;,^^lil^ HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH (DIVISION BENCHl CORAM: - HON'BLB MR. A.S.V. MOORTHY, C.J. AMD HON'BLE MR. L.C. BHADOO, J. CRIMINAL APPEAL N0.130 OF 2003 Abdut'Farid Khan - Versus - State ofChhattisgarh Prcsent: Shri H.S. Ahluwalia, Advocate: ShriiJ.D. Bajpayee, Govt. Advocate: For the appellaat Forfhe State/respondent. JUDGMENT (Delivered on <?^ * November, 2004) Ttie foUowtng judginent of ttie Court was delivered by Justice L.C. Bhadoo: - 1. The accused/appeUant has preferred ttus crimmal appeal beini aggrieved by fhe judgment of conviction and sentence dated 16.1.2003 passed by the leamed 3rd Additional Sessioas Judge (Fast Track Court), Kanker m Sessions Trial No.437/2002, wheieby lcanicd Additional Sessions Judgc after holding thc accused/appeUaat guilty for commission of the offence under Section 302 ofthe I.P.C., sentenced him to undergo imprisonuient for Hfe aad to pay a fiiie of Rs.500/-, ia default ofpaynient offine to further uadergo R.I. for 3 uionths. 2. Briefly stated facts.offhe prosecution case aecessaiy for dlsposal of this criminal appeal are that PW-3 Rehiaat Bi gave the mers intimation Ex.P^2 to the In-charge PoUce Station Kaaker that today i.e, 04.8.2002 at about 7.30p.m. when she was af her residence, at that timc, Chotte Khan & Bhuri came to hcr housc aad infonncd ttiat Abdul Farid Khan @ Muuaa has murdered Samshad Begum in :^^!:.;^p.B^§il LL--:..-»-<Sf-i^^^-^ the street of Sanjay Nagar Colony. On. heanug this she weiit to fhe scene of occurrence al6ng wifh Chotte Kban Sa Bhuri and saw fhat the body of hcr daughter Samshad Beguiu was lying in front of fhc house of oue Patirain ia. fhe street of Sanjay Nagar Colony. The mjuri.es were iaflicted by some sharp edged weapon on the neck aad haad of Samshad Segum and blood was oozing out froin. fhe iujuries. Deceased Samshad Beguin was inamed to accused/appellant abput 13 ycars back, shc deUvercd fhi-cc children out of the wcdlock. Around about four years back accused/appeUaut Abdul Rarid .deserted her daughter and on accouut of fhat auiuiosity he has inurdered her daughter Saxushad Beguia. On receiving this iafonnation the Station House Of&cer namely Yashwant Tckam rcgistercd the F.I.R. (Ex. P-1), thcreaftcr, he proceeded to ttie scene of occuirence and ater giving notice Ex.P-4 to the Panchas, he preparcd fb.e Pauchnama (Ex,P-5) of fhe dead body of deceased Samshad Beguia. During the police custody the accused/appeUant gave iuforination to the Investigating Of&cer uiidcr Scction 27 ofthc Evidcnce Act (Ex.P-7) aad in pursuancc of that he got recovered a d^ger (Katan) under Ex.P-8, his clotfaes were taken into possession by fhe Invest^ating Officer under Ex.P- 9, clothes of deceased Sainshad Beguin were also taken ija.to possession vide Ex.P-ll & 12. Dead body of Samshad Begum was scnt for post inortcin examination to Govt. K.D. Hospital, Kanker, where Dr. Batkrishau Verma (PW-18) conducted thc post mortem aud preparcd a report (Ex.P-18). He opiued fhat the cause ofdeafh was shock due to excessive bleediug aad death was hoinicidal in nature. 3. The Investigatmg Officer took in.to possession plam soU aud blood staiued soU from. the scene of occurrence under Ex.P-14. The recovered ardcles, clothes aad the weapon of offence were sent for chcinical cxamiaation to Forcnsic Sciencc Laboratory, Raipur &oin where the report EX.P-28 vvas received, After completion of the investigation chai^e sheet was ffled agam.st the accused/appeUaiit in the Court ofl^Chief Judicial Magistrate, Kanker, who iti tum coiiuiutted tlie case to the Additional Sessions Jydge, Kanker. In order to provc the offcnce against thc accused/appeUant prosecution examined tn. atl 19 vvicnesses. On the oth.er haad the ,is:-Slis<<siSS^§ •--•e^^-^s^ statenient of accused/ appeUant was recorded uiider Section 313 of Cr.P.C. by the leataied Additional Sessions Judge, who either replied that hc docs aot know or that thc prosecution evidcncc is false and in the last be stated that he is ittaocent and has been falsely implicated in the crune, 4. The leamed Additional Sessions Judge after hearing Additional PubUc Prosccutor, counscl for thc accuscd aad perusal of thc evidence, convicted and ^pntenced the accused/appellant m the aforesaid niaaner. 5. We have heaid Shri H.S. AhluwaUa, leamed counsel for fhe accused/appellaat aad Shri. J.D, Bajpayee, Govenunent Advocate for thc State/respondcnt. 6. As far as the question of nature of death of deceased Samshad Begum being hoinicidal is concemed, learaed counsel for fhe appeUant has not disputed fhis fact. Even otherwise, Dr. Balkrishan Verma (P.W.-18), who conducted the postaiortein on the dcad body of Samshad Begum, has categoricaUy stated fhat on 5.8.2002 he was worldng as Medical OiBcer in the Govermnent Bomaldeo Hospital, Kaaker aad on fhat day on fhe request of the PoUce Station, Kanker he conducted the postiaorteni on fhe body of Samshad Beguin. He aoticed as inany as 5 cut uijuries on the neck of Sam.shad Beguni, thcrc was one iajuiy on thc teinporal boue region ia the size of 9x2cm deep upto the bone aad there was injuiy on the wrist offhe right haud. He further stated fhat in his opinion, cause of deafh was shock as a result of excessive bleeding and death of Samshad Begum was hoiuicidal in nature. Therefore, ia view of fhc cvidcncc of Dr. BaUaishan Vcrma (Pw-18), it stends proved that naturc of tlie death of Samshad Begum was homicidal m. nature. 7. Now, coinuig to fhe involveaient of fhe accused/appeUant in coTnmittiug fhe niurdcr of Samshad Bcgum. is concemed, PW-5 Radhika Bai & -PW-17 Mohd. Ibrahim have tumed Iiostile durins trial, The cofiviction rest on the evidence of eyewitness PW-2 Shahnikh Khan aged about 5 years, who is son df fhe deceased aad accused/appellant and on the circumstantialevidence i,e. recovery of wcapon of offcncG Daggcr at the instancc of thc. "V S^'^SWaa-^ Tbe law is fhat evidence of a ctuM witaess niust be evaluated inore carefully and with- greater circuinspection because a child is susceptible to be swayed by what others teU thein aad thus a child witaess is au easy prey to tutoring. The Hon'ble Apex Court in aaother decision of Sur'ranaraTana Vs. State of Karaatka reported in 2001 (D&imes 99 (SC) has heU that evidence of a child caiuiot be rejected per se, but fhe court as a rule of prudence, is rcquired to considcr such cvidencc with close scrutiny axid oiily •<•!. on beiag conviaced" about the quaUly of statemeuts and its reUabitity, base conviction. b^ .acceptiag fhe statement of the child witness. The evidence of ctuld cannot be discarded only 011 fhe ^round of her/fais being Teen age. The evidence of a child witness would requirc the court to scrutiliize thc evidcnce with care and caution. When fhe witaess is shown to have stood the test ofcross- examination aad there is no iitGrmity in fhe evidence, the prosecution can righfly daim a conviction based upoii fhe said testnnony alone, Corroboration of testunony of a cjtuld witaess is not a nilc but a incasT.uc of caution and prudencc. Soinc discrepancies ia the stateiaent of a child wituess caanot be made the basis for discarding fhe testunony. In a recent judgnient iu fhe case of Ratan Sliydi Dalsukhbhai Navak Vs. State of Guiarat reiaorted in 2004 Suprenie Court Cases (Ori.l 7 the Hon'ble Apex Court has hcld fhat the cvidcnce of a child witncss is pcrmissiblc if such wituess is found competent to testify and the court after carefal scrutmy of its evidence is convinced about the quaUty aad reliability of the sanie, where the witaess described the detail scenario impUcating the appeUant, convictioii can be based placiag reUauce thcrcupon. It was furthcr held that fhc cvidencc of a child is not rcquired to bc rejected per se, but the court as a rule of prudence considers such evidence wifh close scrutmy and only on being conviuced about the qualily fhereof aitd reliability, can record coiiviction, based thereon and the trial Judge is required to take a dccision as to whcther thc chfld witaess has sufficient intcUigcnce to uaderstaud the questions and ia order to decide the uitell^ence the court may resort to aay exaniination which wiU tend to disclose llis capacity aad iateUigence as weU as his understaadiag of fhe obligation ofan. oafh. /"Q^. "^''f^f:^3~S''S inforuiatioii froni Hanif, where he saw fhat liis inother was lyittg dead, In fhe examiriation-ia-chief ttlis witoess has stated that he witricssed thc criinc whcrcas in the cross-examination hc stated that he has not witaessed the cruae, ttierefore, it is not safe to place reliance on the evidence of this wituess that he actuaUy witnessed the crime aad fhat his'fafher assaulted his inofher. Moreover, it is aa adiliitted position that on the date of iacident PW-2 Shahrukh Khau was aged about 5 ycars and Uviag with his itiatenial grandinother, who lodged tfae FIR ia tfae case aud also looking to evidence giveu in examuiation-aa-chief aad cross-examiaation that too after fi.ve uionths fi-oiu flie date of uicident, as m.entioned above the possibiUly -of tutonag this witness cannot be ruled out, Thcrcforc, wifhout aay corroboration in inatenal particulars by some ofher evidence showing fhe involvement of the accused/ appeUant in committiug fhe murder of his own wife conviction caiuiot be rest solely on. the evidence of fhis child witness. tl.As far as thc qucstion of coiuiccting flic accuscd/appcUant with tfae murder of his wife oa the basls of circumistantial evidence is concerued, it is settled ]aw that before the court can record conviction, it inust satisfy itself that circuiastances from. which an ioference of guUt could be drawn have been established by unimpeachable evidcnce led by thc prosccution aad that aU the circuinstances put together are not only of a conclusive nature but also complete the cham so fuUy as to unemngly poiat to the guilt of accused and are not capable of auy explaaation which is not consistent with fhe h}rpothesis ofthe giuld ofthe accused. 12.Thc circunistanccs upon which fhe prosccution tricd to provc thc offence agamst the accused is that thc weapon of ofifence Dagger was recovered at the iastance of fhe accused, fhe Investigatmg Officer (PW-19) Yashwant Tekain has stated ftiat while in custody the accused gave infonnation Ex. P-7 and in pursuaace of that he got rccovered the Dagger undcr Ex.P-8. As has been inentioned above theie is no ocular evidence iu this regard to coniiect the accused wifb. the. miirder of his wife Samshad Begum. The Dagger in question was sent to the Forensic Science Laboratory aad as per FSL report Ex.P-28 the blood was fouad on fhe dagger iri question w 8 ^s-, ^oshaii/- but there is no Serologist report to prove that the blood wrliich was found on fhe dagger in question was human blood, that too it was •».. of thc blood group of deceascd Saaishad Bcguia, thercfore, ia absence of this evidence it cannot be held tfaat the dagger in question was used iu-committmg the murder of Samshad Begum.. The sinular is the poiat so far as the clofhes of tbe accused and deceased are coiicenied, it is true tfaat as per PSL report (Ex,P-28) the blood was fouild on fhc clofhes but there is no Scrologist rcport which shows that the blood wfaich was fouhd on fhe clothes of the •i-i accused aad deceased ^as of the blood group of accused aad deceased. Therefore, on-this 'count also only the recoveiy of the clothes does not connect the accused ia the crune. 13.Therefore, we are of tlie considered opinlon that the fluding of fh.e trail coiirt convictiag and sentenciag the accused/appellant cannot be sustained for the reasons inentioned above. 14. In the result, the appeal of the appeUaat succeeds and fhe sauie is aUowed. Thc accused/appcltaiit namcly Abdul Farid Khaais acquitted of ttie charge uuder Section 302 of ffae I.P.C. He be released forfhwifh, if not required iu. any other case. Sd/- ChiefJustice -11-2004 Sd/- L.C. Bhaduo Judge