The Judgment of the Court was delivered by
Narendra Kumar Jain-II, J.:— Heard learned counsel for the accused-appellant as well as the learned Public Prosecutor for the State.
1. This appeal under Section 374(2) Cr. P.C is preferred to question the correctness of the judgment impugned dated 12th April, 2004 passed by the learned Additional Sessions Judge, (Fast Track), Chittorgarh in Sessions Case No. 9/2004, State of Rajasthan v. Ramlal, convicting the appellant-accused for the offence punishable under Section 302 IPC and sentenced him to undergo life imprisonment along with fine of Rs. 5000/-, in default of payment whereof to further undergo 03 months' simple imprisonment.
2. In brief, the facts of the case are that on 25.10.2003, at the place of occurrence i.e Kaunami Udaba, Mauja Odunda, complainant-Ratanlal S/o Shantilal (P.W 18) gave an oral report (Ex. P/1) to Madan Singh (PW -11)-Station House Officer, Police Station Chanderia, inter alia, stating that on the same day at about 10.30 a.m, when he was at his field removing groundnut, and Ramlal, Ratanlal (PW 19), Baluram (PW 20) were working in the adjoining fields near the field of complainant, Kanta came to “Devra” (grave) of Banshi Lal situated in his field; Ramlal armed with an axe, also came to the “Devra” and inflicted blow by axe on the head of Kanta, upon which, she fell down making shriek. On hearing the same, complainant, Balu and Ratan Lal ran towards the place of occurrence and saw that the blood was oozing out from the back side of the head of Kanta and her hands and feet were moving; Narayan (PW 21) aged 5 years, who is the son of Kanta was standing there. After assaulting, accused-Ramlal fled towards Ghosunda with the axe. After some time, Kanta died. Complainant (PW 18) went t Ghosunda by bicycle and informed about the incident. It is further stated by the complainant that the marriage of Kanta (deceased) with the accused-appellant was solemnized 10 years before the incident and Kanta was living at her parental house, at Ghosunda for last six months as the accused used to quarrel with the deceased Kanta.
3. On the basis of the aforesaid report, an FIR No. 383/2003 (Ex. P/2) was registered at Police Station, Chanderia and after completion of investigation, challan was filed in the Court of Additional Chief Judicial Magistrate No. 2, Chittorgarh for the offence under Section 302 IPC against the accused-appellant Ramlal. The case was then committed to the Court of Sessions, Chittorgarh, from where, it was ultimately assigned to the Court of Additional Sessions Judge, (Fast Track) Chittorgarh (for short ‘the trial Court’ hereinafter).
4. Charge under Section 302 IPC was framed on 13.2.2004 by the trial Court, which was read over and explained to the accused-appellant. The accused appellant pleaded no guilty and claimed to be tried.
5. During the trial, the prosecution, in support of its case, examined as many as 22 witnesses and exhibited 34 documents. The statement of the accused-appellant was recorded under Sec. 313 Cr. P.C The accused-appellant negated the prosecution evidence and contended that he is innocent and has been falsely implicated in this case. However, in support of his case, the accused-appellant did not produce any oral defence evidence, but in documentary evidence, police statements of Gopal (Ex. D/1), Kishan Lal (Ex. D/2), Udai Singh (Ex. D/3), Dal Chand (Ex. D/4) and Dinesh (Ex. D/5) were adduced by the accused-appellant.
6. The learned trial Court, while relying upon testimony of the prosecution witnesses, evidence in connection with recovery of axe and FSL Report, vide judgment impugned dated 12th April, 2004, convicted the accused-appellant for commission of offence punishable under Section 302 IPC and sentenced him in the terms mentioned hereinabove.
7. Feeling aggrieved by the judgment of conviction and sentence passed by the trial Court, the accused-appellant has filed the present appeal before this Court.
8. In the appeal, the learned counsel for the accused-appellant mainly reiterated the contentions already advanced before the trial Court and contended that the learned trial Court erred in convicting and sentencing the accused-appellant as aforesaid. It is contended by the learned counsel for the accused-appellant that Dinesh (PW 17) is an interested and partisan witness and has totally improved his statement but the learned trial Court has believed him as eye-witness and ignored that he was not named in IR and other eye-witnesses named in FIR as eye-witnesses, did not tell anywhere that at the time of incident, Dinesh (PW -17) was present at the place of occurrence. It is further contended that Dinesh (PW -17) has stated in his examination-in-chief that he had not told about the incident to anybody, which is contrary to the statements of Mohanlal (PW 13) and Dalchand (PW 16), who have stated in their statements that Dinesh (PW 17) had told them about the death of Kanta. It is also contended that Ratanlal S/o Shantilal (PW 18), Ratanlal S/o Badrilal (PW 19) and Balu (PW 20) have turned hostile and did not support the prosecu-tion case. So far as Narayan (PW 21), who is 5 years old is concerned, hi statement cannot be believed as he admitted in his cross-examination that his maternal uncle and advocate taught him, therefore, he is a tutored witness. In support of this connection, the learned counsel for the accused-appellant has relied upon the following judgments rendered by Hon'ble Supreme Court:
(i) Bhagwan Singh v. State of M.P, Appeal (Crl.) No. 789/2002, decided on 23.1.2003;
(ii) Bahadul Alias Ghanshyam Padhan v. State Of Orissa, (1979) 4 SCC 346 : AIR 1979 SC 1262;
(iii) Harda v. State of Madhya Pradesh, 1989 Cri LJ 1058;
(iv) Chhagan Dame v. State Of Gujarat, AIR 1994 SC 454;
(v) Arbind Singh v. State Of Bihar., 1995 Supp (4) SCC 416 : AIR 1994 SC 1068;
(vi) Kalusingh Chander Singh v. State of Madhya Pradesh (1994 (0) MPLJ 560); and
(vii) Sri. Rajappan v. State of Kerala, Crl. Appeal No. 2202/2006, decided on 7.7.2010
9. Learned counsel for the accused-appellant finally argued that there was absolutely no evidence to show that the appellant had an intention to commit murder as medical evidence of Dr. Rajendra Kumar Agarwal (PW 7), Dr. Anju Chouhan (PW 8) and Dr. Umesh Singhai (PW 9) has established that there is only one injury, which is on head and incised wound as per the post-mortem report (Ex. P/13). Accused did not repeat the same, so even by admitting whatever evidence available on record, the case against the accused-appellant does not travel beyond the offence under Section 304 IPC.
10. While opposing appeal, it is submitted by the learned Public Prosecutor hat there is no reason to disbelieve the prosecution evidence and also that the prosecution has proved its case beyond doubt, so as to establish that it was accused-appellant, who committed the instant crime. Learned Public Prosecutor supported the judgment of the trial Court and submitted that the defence version was not true. It is further submitted hat the post-mortem was conducted and on the postmortem report (Ex. P/13), the Medical Board consisting of Dr. Anju Chouhan (PW 8), Dr. Umesh Singhai (PW 9) and Dr. R.K Agarwal (PW 7) opined that deceased Kanta died due to coma due to head injury which is sufficient to cause death in its natural course and as such, the accused-appellant has been rightly convicted by the trial Court. Hence, the appeal of the accused-appellant lacks merit and is liable to be dismissed.
11. We have given our thoughtful consideration to the submissions made by the learned counsel for rival parties and have carefully perused the evidence on record available before us.
12. During the trial, the prosecution supported its case by producing five witnesses viz., Ratanlal S/o Shantilal (PW. 18), who has lodged the FIR by giving oral statement to the police (Ex. P/1), Ratanlal S/o Badrilal (PW 19), Balu Ram (PW 20), Dinesh S/o Dalchand (PW 17) and Narayan-minor (PW 21) as eye-witness of this incident. Admitedly, Ratanlal (PW 18), Ratanlal (PW 19), Balu Ram (PW 20) have turned hostile during trial. Dinesh (PW 17), who is brother of deceased Kanta has not named in the FIR. Narayan (PW 21), a minor son of deceased Kanta and accused Ramlal aged about 5 years, has seen the incident as per his evidence. Dr. Rajendra Kumar Agarwal (PW 7), Dr. Anju Chouhan (PW 8) and Dr. Umesh Singhai (PW 9) were cited to prove the post mortem report (Ex. P/13); Bhagwan Singh (PW 1)-Sub-Inspector, Police Station, Chanderia was cited for registering the FIR of this case. Arjun Khatwani (PW 2) was cited to prove Ex. P/8; Gopal Kumawat (PW 3), the brother of deceased-Mrs. Kanta, in his statement, has stated that deceased used to quarrel with his sister deceased-Mrs. Kanta; Badrilal Kumawat (PW 4) was cited to prove Ex. P/3, P/4 to P/5; Kishanlal Kumawat (PW 5) proves Ex. P/9 to P/11; Udai Singh (PW 6), Head Constable, Police Station, Chanderia, at the relevant time, was Malkhana Incharge and deposited the seized articles to the Malkhana. He proves Ex. P/12; Mahendra Singh (PW 10), Head Constable also proves Ex. P/12, Madan Singh (PW 11), Station House Officer, Police Station, Chanderia to whom complainant-Ratanlal S/o Shantilal (PW. 18) gave an oral report (Ex. P/1). He proves Ex. P/8, P/9 and Ex. P/15 to Ex. P/25; Narayan Lal (PW. 12) was cited to prove Ex. P/15 to P/17; Mohan Lal (PW 13) is the witness of Ex. P/10 and P/11; Madhulal Kumawat (PW 14) is the witness of Ex. P/10 and P/11; Madhulal Kumawat (PW 14) is the witness, who has proved Ex. P/3 to Ex. P/5; Dinesh son of Mohanlal (PW 15) was cited for proving Ex. P/15 to Ex. P/17; Dalchand (PW 16) is the father of deceased-Mrs. Kanta, who corroborated the testimony of PW. 3 Gopal Kumawat, the brother of the deceased Mrs. Kanta; Dinesh (PW 17) is the brother of deceased-Kanta. He, in his statement, has stated that, in his presence, the accused inflicted injury to deceased Kanta. This witness has also stated hat accused-Ramlal, armed with axe, also ran behind him; Shiv Narayan (PW 22) was cited as carrier of articles to the FLS for examination, he proves the receipt, forwarding letter of the office of Superintendent of Police and the forwarding letter of Police Station, Chanderia vide Ex. P/33, Ex. P/34 and Ex. P/27 respectively.
13. The homicidal death of Kanta is undisputed as per the statements of Dr. Rajendra Kumar Agarwal (PW 7), Dr. Anju Chouhan (PW 8) and Dr. Umesh Singhai (PW 9), who have conducted the autopsy of deceased Kanta, and the postmortem report vide Ex. P/13. Deceased Kanta had received the following injury:
Incised wound 5″ × 1-1/2″ × brain deep over left occipito parietal region behind left ear. All the structures are cut upto 2″ depth. Signs of hemorrhage present. The injury is ante mortem and fresh.”
14. In the opinion of Medical board, the cause of death of Kanta was due to coma due to head injury, which is sufficient to cause death in the ordinary course of nature. The injury was found ante-mortem in nature.
15. It is clear from the oral statement (Ex. P/1) made by Ratanlal (PW 18) and submitted to Madan Singh (PW 11), Station House Officer, Police Station, Chanderia that at about 10:30 a.m on 25th October, 2003, at the place of occurrence, when he was at his filed removing groundnut, and Ramlal (accused), Ratanlal S/o Badrilal and Baluram were working in the adjoining filed, Mrs. Kanta, wife of Ramlal (accused) came to cenotaph (‘Devra’-religious ‘Chabutra’ of late Banshi Lal), accused-Ramlal came to ‘Devra’ armed with axe and inflicted blow on the head of Mrs. Kanta, she fell down. Complainant-Ramlal (PW 18), Balu Ram (PW 20) and Ratanlal (PW 19) came to the place of occurrence and saw Mrs. Kanta in serious condition. Minor Narayan (PW 21), who is son of Mrs. Kanta and accused-Ramlal was standing there. After assaulting, accused-Ramlal fled with the axe and Mrs. Kanta died. On the basis of above oral statement, FIR (Ex. P/2) was registered. During trial, Ratanlal (PW 18) has turned hostile but he has deposed that he signed the oral statement Ex. P/1. Ratanlal S/o Badrilal (PW 19) and Balu Ram (PW 20) have also turned hostile. PW. 17-Dinesh has given statement against the accused-appellant but admittedly his name has not been mentioned in the FIR and he is the brother of the deceased Kanta.
16. We have carefully gone through the evidence of PW. 21-Narayan, a minor son of accused-Ramlal and deceased Mrs. Kanta which does inspire confidence and faith, which reads as under:
17. It is true that the prosecution case is founded on the testimony of minor eye-witness-Narayan (PW 21) and other prosecution evidence. Learned counsel for the accused-appellant has contended that the statement of Narayan (PW 21), a minor, cannot be believed because he is a tutored witness as per his statement. We have gone through the judgments cited by the learned counsel for the accused-appellant. We consider it appropriate to refer the position of law in this regard.
18. Indian Evidence Act, 1872 does not prescribe any particular age as determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the question, because of tender years, extreme old age, disease, whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he had intellectual capacity to understand questions and given rational answers thereto. The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
19. In Dattu Ramrao Sakhare v. State of Maharahstra (1997) 5 SCC 341, it was held by Hon'ble Supreme Court as follows:
“Child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.”
20. The decision on the question whether the child witness has sufficient intelligence primarily rest with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in word to make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and able to be influenced easily, shaked and moulded, but it is also an accepted norm that if after carefully scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
21. The mere fact that the child was asked to say about the occurrence and as to what he saw, is no reason to jump to a conclusion that it amounted to tutoring and that he was deposing only as per tutoring what was not otherwise what he actually saw.
22. In this case, Narayan (PW 21), a child witness, who had seen the crime, has witnessed this incident and deposed that his father inflicted a ‘Kulhari’ blow on the head of his mother. Even a bare perusal of his evidence in the Court showed that he is a natural and credible witness and in the facts and circumstances of the case, his presence was established by FIR and other prosecution evidence and was only a tutored witness. He has categorically stated that he saw that his father inflicted ‘Kulhari’ blow on the head of his mother, she fell down and died. When child-witness Narayan is minor son of deceased-Mrs. Kanta and accused-Ramlal, there is no reason as to why he would falsely implicate his father. There was exchange of words and quarrel between accused and the deceased on the spot in the presence of this witness and accused suddenly hacked the deceased on her head by ‘Kulhari’ and deceased fell down. Learned trial Court has recorded the statement of Narayan (PW. 21) after putting preliminary questions and satisfying that he is answering properly. Thereafter, he had given all details of occurrence, withstood test of cross-examination, his presence at the time of incident is most natural because at the time of Deepawali Festival, he came with her mother at ‘Devra’ (religious place) and in the facts and circumstances, his evidence is acceptable. It is settled law that the conviction can be based even on testimony of solitary eye-witness if his version is of sterling worth and his presence at he time of occurrence has been proved beyond reasonable doubt. Evidence of Narayan is found to be consistent and substantially in conformity to the version appeared in the FIR and the evidence of other prosecution witnesses, evidence of recovery of ‘Kulhari’, FSL report and medical evidence. In the facts of the case, the evidence of Narayan (PW 21) does not appears to be tutored and does inspire confidence and faith and we are firmly of the view that it is an incident proved beyond reasonable doubt that Mrs. Kanta died on account of the injury inflicted by the accused-appellant-Ramlal.
23. In such circumstances, we do not find anything wrong in the findings given by the trial Court to the extent of involvement of the accused-appellant in this crime. The only question requires consideration is whether the act of the accused-appellant amounts to murder, punishable under Section 302 IPC or it constitutes an offence other than that. In this regard, it would be appropriate to consider the essential requirements to invoke Exception 4 of Section 300 IPC, the Exception 4 of Section 300 IPC can be invoked if any of the following requirements are satisfied:
(i) It was a sudden incident;
(ii) There was no premeditation;
(iii) The act was done in the heat passion and;
(iv) Assailant had not taken any undue advantage or acted in a cruel manner.
24. From the facts and evidence available on record, it does not reveal that the accused-appellant having any intention to kill his wife Mrs. Kanta. As per the prosecution evidence, the occurrence took place suddenly, there was no premeditation. As per the evidence of Narayan (PW 21), there was exchange of words and quarrel between the accused husband and deceased Kanta-wife, then accused suddenly inflicted ‘Kulhari’ blow on the head. So act was done in the heat of passion and it also proved that accused had not taken any undue advantage or acted in a cruel manner. Accused had given one ‘Kulhari’ blow on the head, which is grievous and in the ordinary course of nature to cause death of Mrs. Kanta as per the medical evidence. Accused-Ramlal must be having knowledge that the bodily injury given by him by sharp edged weapon like axe may cause death, but was not intending to kill Mrs. Kanta because he did not repeat the same. Therefore, we impute only this much intention of the accused-appellant that injury inflicted by him on the vital part of the body of deceased was likely to cause death and this act come within the purview of Section 304-I I.P.C
25. Consequently, the appeal of the appellant is allowed in part. The impugned judgment dated 12th April, 2004 passed by the learned Additional Sessions Judge (Fast Track), Chittorgarh is modified to the extent that the accused-appellant-Ramlal is convicted under Section 304-I IPC instead of Section 302 IPC and accordingly sentence is also reduced to 10 years rigorous imprisonment instead of imprisonment for life along with fine of Rs. 5,000/- in default of payment whereof, to further undergo one year's rigorous imprisonment.