Evidence Law – Law relating to a testimony of a child witness – Following factors must be considered at the time of recording of evidence of a child witness :- (i) There is no disqualification for a child witness; (ii) The Court must conduct a preliminary enquiry before allowing a child witness to be examined; (iii) The Court must be satisfied about the mental capability of a child before giving evidence; (iv) While sifting the evidence, the possibility of a bias or the child being tutored should be taken note of; (v) The evidence of a child witness should be corroborated; (vi) The child cannot be administered oath or affirmation and it is incompetent to do so; (vii) The Court cannot allow a minor to make an affirmation.
ICL 2021 (9) MP 946
HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
G.S. AHLUWALIA & RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 160/2006; 15th September, 2021
Ghanshyam Ramcharan Goswami v. State of Madhya Pradesh
Shri S.S. Kushwah, counsel for the appellant. Shri C.P. Singh, Panel Lawyer for the respondent/State.
J U D G M E N T
Rajeev Kumar Shrivastava, J.
The instant Criminal Appeal is preferred under Section 374 of Cr.P.C. against the judgment of conviction and sentence dated 12.01.2006 passed by Third Additional Sessions Judge, Gwalior in Sessions Trial No. 296/2003, whereby appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.5000/-.
2. Undisputed fact of this case is that the co-accused of this case Shantibai has already been acquitted vide judgment dated 30.11.2004.
3. It is also admitted fact that the deceased Vidyabai was the married wife of the present appellant Ghanshyam and the coaccused Shantibai is the mother of accused/appellant Ghanshyam. The child witness of this case Ku. Sonali @ Guddi (PW/9) is the daughter of accused/appellant Ghanshyam and deceased Vidyabai. It is also undisputed fact that Kaushal Kishore (PW/3), Kamal Kishore (PW/5), Chandrabhan (PW/10) are the real brothers of deceased Vidyabai and Munnibai (PW/7) is the wife of Kamal Kishore (PW/5) and Ramcharan (PW/8) is the father of the deceased.
4. The prosecution story in short is that the deceased-Vidyabai is the sister of complainant Chandrabhan Jogi (PW/10). The marriage of Ghanshyam and Vidyabai was solemnized on 11.11.2002. They were residing under the same roof at Nadi Par Tal Morar. Accused/appellant Ghanshyam had sold out his house and he was interested in purchasing old Minibus, therefore, he was compelling the deceased to encash her FD and Indira Vikas Patra. But the deceased was not ready and willing to withdraw the amount against the aforesaid FDR and Indira Vikas Patra. On account of that often accused Ghanshyam and his mother Shantibai used to beat the deceased Vidyabai. Same act was done on 11.11.2002 by accused/appellant Ghanshyam and his mother with deceased Vidyabai. Deceased-Vidyabai informed about the aforesaid torturous behaviour of her husband Ghanshyam and mother-in-law Shantibai to her family members and asked them to come her residence. The complainant Chandrabhan Jogi (PW/10) reached the house of the deceased along with his friends Brijesh Gupta (PW/4), Rajkumar (PW/6) and Raju Goswami (PW/12). They saw that Shantibai was quarreling with the deceased Vidyabai and accused- Ghanshyam was also beating the deceased. The complainant and his friends tried to settle the matter and requested to send his sister Vidyabai along with him. But the accused had not permitted Vidyabai to go along with her brother. At around 2:30 pm the complainant and his friends were returned back. When they reached out of the house of the accused they heard the sound of firing from the house of Ghanshyam. They immediately returned back and had seen that accused Ghanshyam was trying to escape from the place of incident and his sister Vidyabai was found dead. Her body was blood stained and the other accused Shantibai was not there. The niece of the complainant Sonali @ Guddi (PW/9) was weeping there and she conveyed that ^^fd mlds ikik us eEeh dks ekj fn;k^^A It is further stated in the FIR that due to dispute with regard to money, the deceased was murdered using firearm by Ghanshyam. The gunshot injury was found over the head of the deceased. On account of that FIR was lodged i.e. (Ex-P/4). As per aforesaid complaint Merg No.61/2002 was registered i.e. (Ex-P/10). Safina form (Ex-P/6), spot map (Ex-P/7) were prepared. The postmortem of the deceased was conducted by Dr. Y.S. Kushwah (PW/15). The postmortem report is Ex-P/9, wherein the doctor has opined that the deceased Vidyabai died due to excessive hemorrhage from gunshot injury. During the investigation, S.B. Sharma (PW/14) recorded the statements of Kaushal Kishore (PW/3), Kamal Kishore (PW/5), Rajkumar (PW/6), Munnibai (PW/7), Sonali @ Guddi (PW/9), Chandrabhan (PW/10), Brijesh Gupta (PW/4), Ramchandra (PW/8), Uma Devi, Munnalal (PW/1), Ahibaran Singh (PW/2), Omprakash (PW/13) and Kamal Singh. After completion of investigation, charge sheet was filed.
5. Accused/appellant denied the charges and abjured the guilt and during the course of examination of accused under Section 313 of Cr.P.C. the accused/appellant has taken the plea of alibi that on the date and time of incident he was on his official duty in the Company situated at Malanpur where he is employed. The Trial Court after appreciation of evidence available on record convicted and sentenced the appellant as under :-
|Name of accused||Section||Punishment||Fine||In default, punishment|
|Ghanshyam||302 IPC||Life Imprisonment||5000/-||–|
6. Learned counsel for the appellant has submitted that the judgment of conviction and sentence is against the law and against the settled principle of law. The case is based on the evidence of Sonali @ Guddi (PW/9), aged around 6 years, who is the child witness and her statements were recorded three times are not trustworthy as lots of contradictions and omissions are in her statements. It is also submitted that after the death of deceased Vidyabai the child witness Sonali @ Guddi is residing with her maternal grand father and mother. It is also submitted that the child witness has admitted in her statement that she was tutored by her maternal grand parents as well the Advocate concerned. She has also stated in her statement that at the time of incident she was playing at the temple situated near her house. She has also stated that she had not seen any incident. As no any other witness supported the statement of (PW/9) Sonali (the child witness), the evidence of child witness could not be relied upon. Munnalal (PW/1), Ahibaran Singh (PW/2), Omprakash (PW/13) have not supported the prosecution case. The other witnesses who have been examined before the trial Court are also not trustworthy as there are lots of contradictions and omissions in their statements. The prosecution has tried to bake story on FDs and Indira Vikas Patra of the deceased. But no any such document has been produced or proved by the prosecution. On the date of incident, the accused/appellant was working in his office situated at Malanpur. Hence, prayed for setting aside the impugned judgment of conviction and sentence.
7. Per Contra, learned State Counsel opposed the submissions and submitted that the trial Court has rightly convicted the appellant and awarded sentence. Hence, no case is made out for interference.
8. Heard the learned counsel for the rival parties and perused the record.
9. In the present case, the following question emerges for consideration :
“(i) Whether, on 11.11.2002 at about 2.30 to 3.00 pm the death of Vidyabai was culpable homicide ?
(ii) Whether, the culpable homicide of deceased Vidyabai comes within the purview of ‘murder’ ?
(iii) Whether, the aforesaid act was done by the appellant/accused Ghanshyam?
10. Before considering the merits of the case, it would be appropriate to throw light on relevant provisions of Sections 299 and 300 of Indian Penal Code.
11. The Law Commission of United Kingdom in its 11th Report proposed the following test :
“The standard test of ‘knowledge’ is, Did the person whose conduct is in issue, either knows of the relevant circumstances or has no substantial doubt of their existence?” [See Text Book of Criminal Law by Glanville Wiliams (p.125)] “Therefore, having regard to the meaning assigned in criminal law the word “knowledge” occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply.”
12. The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under: –
“Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words “intention of causing death” occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death in the ordinary course of nature. This is also borne out from illustration (c) to Section 300 IPC which is being reproduced below: –
“(c) A intentionally gives Z a sword-cut or clubwound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s death.”
Therefore, the contention advanced in the present case and which is frequently advanced that the accused had no intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
13. The scope and ambit of clause Thirdly of Section 300 IPC was considered in the decision in Virsa Singh vs. State of Punjab, [AIR 1958 SC 465], and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was “a punctured wound 2″ x =” transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three coils of intestines were coming out of the wound.” After analysis of the clause Thirdly, it was held: – “The prosecution must prove the following facts before it can bring a case under S. 300 “Thirdly”; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 “Thirdly”. It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death.” 14. In Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been observed as under :- “11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses ‘Firstly’ to ‘Fourthly’ of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done (i) with the intention of causing death; or (ii) with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge that the act is likely to cause death.” If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under Section 304 Part I IPC as it uses the expression “if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death” where intention is the dominant factor.
However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression “if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death” where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted.
The expression “the offender knows to be likely to cause death” occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge.
The dictionary meaning of the word ‘knowledge’ is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black’s Law Dictionary is as under: – “An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary … to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended.”
In Blackstone’s Criminal Practice the import of the word ‘knowledge’ has been described as under: –
“‘Knowledge’ can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels ‘virtually certain’ about something can equally be regarded as knowing it.”
15. Section 299 of Indian Penal Code runs as under :-
“299. Culpable homicide.– Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”
16. Section 299 of IPC says, whoever causes death by doing an act with the bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Culpable homicide is the first kind of unlawful homicide. It is the causing of death by doing : (i) an act with the intention of causing death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or (iii) an act with the knowledge that it is was likely to cause death. Without one of these elements, an act, though it may be by its nature criminal and may occasion death, will not amount to the offence of culpable homicide. ‘Intent and knowledge’ as the ingredients of Section 299 postulate, the existence of a positive mental attitude and the mental condition is the special mens rea necessary for the offence. The knowledge of third condition contemplates knowledge of the likelihood of the death of the person. Culpable homicide is of two kinds : one, culpable homicide amounting to murder, and another, culpable homicide not amounting to murder. In the scheme of the Indian Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide not amounting to murder. In this section, both the expressions ‘intent’ and ‘knowledge’ postulate the existence of a positive mental attitude which is of different degrees.
17. Section 300 of Indian Penal Code runs as under :-
“300. Murder.– Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or– Secondly.– If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or– Thirdly.– If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or– Fourthly.— If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
18. ‘Culpable Homicide’ is the first kind of unlawful homicide. It is the causding of death by doing ; (i) an act with the intention to cause death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
19. Indian Penal Code reconizes two kinds of homicides : (1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC).
20. A bare perusal of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression “intent” and “knowledge” postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
21. There are three species of mens rea in culpable homicide. (1) An intention to cause death; (2) An intention to cause a dangerous injury; (3) Knowledge that death is likely to happen.
22. The fact that the death of a human being is caused is not enough unless one of the mental staes mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
23. In the scheme of Indian Penal Code, “Culpable homicide” is genus and “murder” is its specie. All “Murder” is “culpable homicide” but not vice versa. Speaking generally ‘culpable homicide sans special characteristics of murder’ if culpable homicide is not amounting to murder.
24. In Anda vs. State of Rajasthan [1966 CrLJ 171), while considering “third” clause of Section 300 of IPC, it has been observed as follows :-
“It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature.”
25. In Mahesh Balmiki vs. State of M.P. [(2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
“There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.”
26. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed as under :-
“The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.
27. In Pulicherla Nagaraju @ Nagaraja vs. State of AP [(2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
“Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302.
The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”
28. In Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon’ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:
“16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased.”
29. In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC 639, this it has been held as follows:
“7.3 In Arun Raj [Arun Raj v. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) “21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.”
30. In the case of Bavisetti Kameswara Rao v. State of A.P. (2008) 15 SCC 725 , it is observed in paragraphs 13 and 14 as under:
“13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence.
The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16)
“16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap.”
The further observation in the above case were: (Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17)
“16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. … It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact.” 31. In the light of above annunciation of law laid down by Hon’ble Apex Court, the evidence available on record in the present case is considered.
32. From perusal of the record, it is evident that Dr. Yogendra Singh (PW-15), has stated in his statement that on 12.11.2002, he was posted as Medical Officer in J.A.H. Gwalior. On that day, Ramesh Kumar, Constable No.1743 of Police Station Morar, had brought dead body of deceased Vidyabai, wife of Ghanshyam, aged around 25 years for postmortem. The body was identified by Constable Ramesh Kumar and the brother of the deceased Kaushal Kishore. The postmortem was conducted at around 10.30 am. On external examination he found that the dead body was of a lady aged around 25 years. Her eyes and mouth was shut and on the complete body rigor mortis was found. He has also stated that the following antimortem injuries were found on the body of the deceased Vidyabai :-
(i) one entrance wound of firearm injury 0.75×0.75 cmx3 cm just above the left ear on the temporal region which was surrounded by 1 cm tattooing and one exit wound was found on the right zygomatic part that was 5.5 cm diameter, margins were averted and fracture of bone 5×5 cm was found and brain matter was coming out from the exit wound.
(ii). One contusion 4×2 cm was found on the lower portion of right leg.
(iii). One contusion 6×2 cm on middle area of left shoulder.
(iv). One contusion 4×4 cm on back side of right hand.
The injuries caused on the head of the deceased by firearm was sufficient to cause death in ordinary course of nature. The cloths of the deceased were sealed and handed over to the Constable.
33. This witness Dr. Yogendra Singh has given his opinion that the cause of death of the deceased was shock and hemorrhage due to firearm injury to brain and the firearm injury was sufficient to cause death in ordinary course of nature. The time of death was within 3 to 24 hours of postmortem. The report is Ex-P/9. He has proved his signature over the report. As the injury caused was sufficient to cause death in ordinary course of nature and injury was of gunshot injury over the head of the deceased and entrance as well as exit wound were found during the postmortem and some part of brain was coming out, therefore, it is apparent that the death of the deceased is homicidal.
34. Now it has to be seen whether the prosecution has proved its case beyond reasonable doubt against the accused/appellant.
35. In the present case prosecution witness No.10 Chandrabhan who is the brother of the deceased has stated in his statement that on 11.11.2002 his wife received a mobile call from his sister Vidyabai. Deceased Vidyabai conveyed him that the accused Ghanshyam and his mother Shantibai are beating her and she asked them to come to her residence. Then he reached the house of the deceased along with his friends Brijesh Gupta (PW/4), Rajkumar (PW/6) and Raju Goswami (PW/12). They saw that Shantibai was quarreling with the deceased Vidyabai and accused-Ghanshyam was also beating the deceased. Accused/appellant Ghanshyam was interested in purchasing old Minibus, therefore, he was asking for money from Vidyabai. Deceased Vidyadbai had some FDR, therefore, he was compelling the deceased to break her FD. But the deceased was not ready and willing to withdraw the amount against the aforesaid FDR, therefore, the accused and his mother were beating her. He and his friends tried to settle the matter and requested to send his sister Vidyabai along with him. But the accused had not permitted Vidyabai to go along with him. He and his friends were returned back. When they reached out of the house of the accused they heard the sound of firing from the house of Ghanshyam. They immediately returned back and had seen that accused Ghanshyam was trying to escape from the place of incident and his sister Vidyabai was found dead. Her body was blood stained and the other accused Shantibai was not there. His niece Sonali @ Guddi (PW/9) was weeping there.
36. Prosecution witness No.4 Brijesh Gupta, Rajkumar (PW/6), Raju Goswami (PW/12) have affirmed the aforesaid statement given by Chandrabhan (PW/10). The aforesaid statements of the aforesaid witnesses were remained unchanged in their crossexamination. They have specifically stated that when they reached on the place of incident they saw that the accused Ghanshyam was trying to escape the place and blood stained dead body of deceased Vidyabai was inside of the house of the accused and their daughter Sonali @ Guddi was alone there and she was weeping.
37. Now the conduct of the accused has to be analyzed as per the provisions of Section 8 of Evidence Act.
Illustration (i) of Section 8 of Evidence Act runs as under:- (i). A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
Despite above, burden is always on the accused as the incident took place in his house and his wife was murdered and the accused/appellant has taken plea of alibi in the present case.
Relating to Plea of Alibi :
38. ‘Alibi’ is a Latin word, which means elsewhere. It is used when the accused takes a plea that at the time of occurrence he was elsewhere. The burden to prove the plea of alibi is on the accused. It is a rule of evidence recognized under Section 11 of the Evidence Act. Section 11 of Indian Evidence Act runs as under:- “11. When facts not otherwise relevant, are relevant.– Facts not otherwise relevant are relevant– (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.”
39. When the accused takes the plea of alibi, the burden of proof lies on him under section 103 of Indian Evidence Act and this defence has to be taken at the earliest opportunity and it has to be proved to the satisfaction of the Court. Unless the accused succeeds in establishing plea of alibi, he will not be entitled to an acquittal. In order to prove plea of alibi it is always required that the aforesaid defence was taken at the earliest. This stage must be initial stage of case as it could be at the stage of framing of charges or preliminary hearing.
40. In Lakhan Singh @ Pappu vs. The State of NCT of Delhi (Criminal Appeal No.166/1999), it is held as under :-
“The plea of alibi cannot be equated with a plea of self-defence and ought to be taken at the first instance and not belatedly at the stage of defence evidence. In any case, the appellant/accused gives no reason or explanations for not taking this plea of alibi at the earliest opportunity.”
41. In Binay Kumar Singh vs. The State of Bihar [(1997) 1 SCC 283], it is held as under :-
“We must bear in mind that alibi, not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant.
(a) When the defence of alibi fails-Failure on the part of accused to establish plea of alibi does not help the prosecution and it cannot be held that the accused was present at the scene of occurrence, the prosecution must prove it by positive evidence.
Thus the mere failure on the part of the accused to establish the plea of alibi, shall not lead to an inference that the accused was present at the scene of occurrence.
(b) Non access of husband to show illegitimacy of the child: Since legitimacy of the child implies a cohabitation between husband and wife. For disproving the legitimacy the husband has to prove that he had no cohabitation with his wife during the probable time of begetting as he was in abroad.”
42. On perusal of record, it is apparent that one certificate ExD/10 has been produced by the accused/appellant which is reproduced as under:- CERTIFICATE After going through the record it has been found that Mr. Ghanshyam Goswami S/o Shri Ram Charan Goswami has attended his B Shift duty from 2.30 pm to 11pm on 11th Nov. 2002. For attending the duty he picked up the Company’s Bus from the Railway Station at 1.30 pm on 11th Nov.02 which reached our Factory at 2.30 pm.
This certificate has been issued to him at his own request for the production before the competent authority.
Further he has produced the relevant attendance register i.e.
Ex-D/9 wherein at S.No.30 his presence has been shown. His presence has been marked for B ”Shift duty”.
43. Learned counsel for the accused/appellant has also submitted that on the date of incident the appellant was on his duty which reflects from the aforesaid documentary evidence. Therefore, there is no possibility of commission of offence by the present accused/appellant rather some other person had committed the offence and the present appellant has falsely been implicated.
44. On perusal of record Ex-D/9, it is apparent that at S.No.30 the name of the accused/appellant is reflected and on 11.11.2002 he remained in his office for serving the B shift duty. It is also relevant to mention here that from very next date of incident i.e. 12.11.2002 the accused/appellant remained absent from his duties. It is undisputed that the present accused/appellant is the husband of the deceased Vidyabai. This modus operandi of the present appellant is not a normal phenomena as whenever any wife has been murdered the conduct of her husband shall be to remain present continuously in the house to look after the children. In the present case it is also undisputed there is one daughter of the deceased and despite the fact the present appellant remained absconding, therefore, the subsequent conduct of the present appellant is admissible under the provisions of Section 8 illustration (i) of Indian Evidence Act to prove the guilt of the accused/appellant.
45. Aforesaid prosecution witnesses have stated that when they reached on the place of incident they saw that blood stained body of deceased was there and Sonali @ Guddi (PW/9)was there and she was weeping. The sole eyewitness of the incident is Sonali @ Guddi (PW/9).
46. Sonali @ Guddi (PW/9) is a child witness and is aged around 6 years. The trial Court has observed and found that the child witness is able to depose before the Court by asking various questions.
Law relating to a testimony of a child witness :
47. The present case mainly depends upon the testimony of child witness, which requires thorough scrutiny of the evidence available on record.
48. India has adopted adversarial system used in the common law countries where two advocates advance their rival contentions or represent their position before a Judge, who analyzes it to determine the truth of the case and passes judgment accordingly. It is in contrast to the inquisitorial system, where a Judge investigates the case. It is well settled that no one can compel the accused to give evidence against him in a criminal adversarial proceeding, even he may not be questioned by the prosecutor or Judge unless he opts to do so.
49. Judges in an adversarial system are impartial in ensuring the fair play of due process or fundamental justice. In such system, the Judges decide, often when called upon by counsel rather than of their own motion, what evidence is to be admitted where there is a dispute. In an adversarial system if a dispute arises with regard to admission of evidence, it is always decided by the Judges. That means, the Judges play more of a role in deciding what evidence is to admit into the record or reject. It is true that improper application of judicial discretion may pave the way to a biased decision, rendering obsolete the judicial process in question. The rules of evidence are also developed based upon the system of objections of adversaries but the Presiding Officer/Judge of the Court is having powers to ask questions whether relevant or irrelevant under Section 165 of the Indian Evidence Act, 1872, which is reproduced below:-
“165. Judge’s power to put questions or order production. – The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant, and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question.
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved; Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
50. In Sidhartha Vashist v. State (NCT of Delhi), [AIR 2010 SC 2352], the Apex Court observed that the Judge cannot ask questions which may confuse, coerce or intimidate the witness. That means, the Judge should not sit in the Court as a silent spectator rather he should involve himself for quest of the truth under the provisions of law.
51. Section 118 of the Indian Evidence Act reads as follows:-
“118. Who may testify.— All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation . – A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.” From the aforesaid provision, it is clear that all persons shall be competent to testify before the Court subject to provisions made under Section 118 of the Indian Evidence Act.
52. Now in the present case the question required to be determined is as to whether the child can understand the nature of an oath; has sufficient capacity or intelligence to give reliable evidence; and, distinguish between what’s right or wrong.
53. According to Blacks Law dictionary, ‘a witness is one who sees, knows, or vouches for something or one who gives a testimony under oath or affirmation in person by oral or written deposition. A witness must be legally competent to testify.’
54. The Courts have made some reconciliation between taking oath before a Court and facing the consequences of breaching the same on the one hand and on the other hand, the competency of giving testimony before the Court. In the interest of justice, Courts have held that a child witness is competent to give evidence though it may not be permissible to administer oath before giving such evidence. It is, in this context, there are several rulings of the Supreme Court as to competency of a child witness and necessary precautions to be taken in sifting of evidence given by such a child witness. A reference to these decisions is relevant in the present case for the admissibility or desirability of a child witness’s evidence.
55. In Mohamed Sugal Esa v. The King [AIR 1946 P.C. 3], it has been held as under:
“Once there is admissible evidence a court can act upon it; corroboration, unless required by a statute, goes only to the weight and value of the evidence. It is a sound rule not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.”
56. In Rameshwar vs. State of Rajasthan [AIR 1952 SC 54], the Apex Court held as under:
“The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge… The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”
57. In The State and others vs. Dukhi Dei and others [AIR 1963 ORISSA 144], the Orissa High Court observed in paragraph 8 of the judgment as follows:
“8. The question therefore is whether the evidence of P.W.2 as an eye-witness is reliable for conviction of the appellants. No doubt the evidence of a child witness is to be taken with great caution. Normally evidence of Child witnesses should not be accepted as it is notoriously dangerous unless immediately available and unless narrated before any possibility of coaching is eliminated; there should be closer scrutiny of the evidence of child witnesses before the same is accepted by a court of law.”
58. In Arbind Singh v. State of Bihar [1995 (Supp) 4 SCC 416], in paragraph 3 of the judgment, the Apex Court observed as follows:
“3. …… It is well-settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring…….”
59. In Jibhau Vishnu Wagh vs. State of Maharashtra [1996 (1) CRI.L.J. 803], it was held in paragraph 15 of the judgment as follows:
“15. ……. He firstly urged that the prosecutrix was a young girl aged about 8 years and the learned trial Judge should have conducted her preliminary examination in order to ascertain in the level of understanding and only thereafter should have proceeded to record her statement. There can be no dispute that it would have been certainly better for the learned Judge to have first conducted a preliminary examination of the prosecutrix by putting some questions to her and on the basis of answers given by her in reply to them satisfied himself whether she was possessed of sufficient understanding. However, the failure to hold a preliminary examination of a child witness does not introduce a fatal infirmity in the evidence……………”
60. In Panchhi and others vs. State of UP [(1998) 7 SCC 177] in paragraphs 11 and 12, the Apex Court observed as follows:
“11. …… But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.
12. Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law [Prakash v. State of MP (1992) 4 SCC 225 : (AIR 1993 SC 65)]; [Baby Kandayanathil v. State of Kerala, 1993 Suppl (3) SCC 667 : (1993 AIR SCW 2192)]; [Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 : (1996 AIR SCW 1882)] and [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341].”
61. In Dhani alias Dhaneswar Naik vs. The State [1999 (3) CRI.L.J. 2712] in paragraph 6 it has been held as under:
“6. P.W.4 undoubtedly is a child of ten years at the time his examination was made. So far as acceptability of evidence of P.W.4 is concerned, undisputedly he was a minor boy at the time of alleged commission of offence and while deposing in Court. Under Section 118 of the Indian Evidence Act, 1872 (in short, Evidence Act) all persons are competent to testify unless the Court considers that because of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind they are prevented from understanding questions put to them, or from giving rational answers. All grounds of incompetency have been swept away by Section 118 under which competency of witnesses is the rule and their incompetency is the exception. Only incompetency that the section highlights is incompetency from premature or defective intellect. As to infancy, it is not so much the age as the capacity to understand which is the determining factor. No precise age-limit can be given, as persons of the same age differ in mental growth and their ability to understand questions and giving rational answers. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth. The general rule is that the capacity of the person offered as a witness is presumed, i.e. to exclude a witness on the ground of mental or moral capacity, the existence of the incapacity must be made to appear. Under Section 118, a child is competent to testify, if it can understand the questions put to it, and give rational answers thereto……….” 62. In Bhagwan Singh and others vs. State of MP [(2003) 3 SCC 21], the Apex Court observed as follows: “19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony.”
63. In Ratansingh Dalsukhbhai Nayak vs. State of Gujarat [(2004) 1 SCC 64], the Apex Court held in paragraph 7 as follows:
“7. …… The decision on the question whether the child witness has sufficient intelligence primarily rests 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 a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaked and moulded, but it is also an accepted norm that if after careful 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.”
64. In Sakshi vs. Union of India and others [(2004) 5 SCC 518], the Apex Court took extra precaution in examining child witnesses before various forums especially in a criminal forum and it dealt with at length the desirability of recording certain statements in an atmosphere conducive for such recording. Paragraphs 27 and 28 of the judgment are extracted below:
“27. The other aspect which has been highlighted and needs consideration relates to providing protection to a victim of sexual abuse at the time of recording his statement in Court. The main suggestions made by the petitioner are for incorporating special provisions in child sexual abuse cases to the following effect :
(i) permitting use of a videotaped interview of the child’s statement by the judge (in the presence of a child support person).
(ii) allow a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of.
(iii) The cross-examination of a minor should only be carried out by the judge based on written questions submitted by the defence upon perusal of the testimony of the minor.
(iv) Whenever a child is required to give testimony, sufficient breaks should be given as and when required by the child.
28. The Law Commission, in its response, did not accept the said request in view of Section 273, Cr.P.C. as in its opinion the principle of the said Section which is founded upon natural justice , cannot be done away in trials and inquiries concerning sexual offences. The Commission, however, observed that in an appropriate case it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused while at the same time provide an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his counsel for an effective cross-examination. The law Commission suggested that with a view to allay any apprehensions on this score, a proviso can be placed above the Explanation to Section 273 of the Criminal Procedure Code to the following effect: “Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of crossexamination of the accused.” 65. Regarding credibility of evidence of child witness, the Apex Court in Golla Yelugu Govindu v. State of A.P. [(2008) 16 SCC 769] in para 11 held as under:- “11. The Evidence Act, 1872 (in short ”the Evidence Act”) does not prescribe any particular age as a 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 questions put to them or from giving rational answers to these questions, 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 has intellectual capacity to understand questions and give rational answers thereto.”
66. From the aforementioned legal position, following factors must be considered at the time of recording of evidence of a child witness :- (i) There is no disqualification for a child witness; (ii) The Court must conduct a preliminary enquiry before allowing a child witness to be examined; (iii) The Court must be satisfied about the mental capability of a child before giving evidence; (iv) While sifting the evidence, the possibility of a bias or the child being tutored should be taken note of; (v) The evidence of a child witness should be corroborated; (vi) The child cannot be administered oath or affirmation and it is incompetent to do so; (vii) The Court cannot allow a minor to make an affirmation;
67. In Ratan Singh Dalsukhbai Nayak (supra), it has also been observed as under:- “The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible 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.”
68. On the basis of above, the evidence of a child witness is not required to be discarded per se, but as a rule of prudence the Court can consider such evidence with close scrutiny and only on being convicted about the quality thereof and reliability can record conviction, based thereon.
69. All that is required in consideration of evidence of a child witness, if on scanning it carefully it is found that there is no infirmity or contradiction in the evidence of a child, then there is no impediment in accepting the evidence of a child. Normally a Court should look for corroboration in such cases but that is more by way of caution and prudence than as a rule of law.
70. It is relevant to mention that the reliability of a child witness is very important in the cases of domestic violance and other offences, which take place within the four walls of a home, where no outsider may be present, a child can be very important witness, especially being the sole eye-witness. Furthermore, in cases where a child may not always be a natural witness, children tend to have a very strong memory and may actually paint a clear picture of the alleged scene of crime. There are probabilities of exaggeration, but here again the role of the Court is important.
71. In the light of the aforesaid judgments, now we will consider the evidence given by the prosecution witness No.9 Sonali @ Guddi. This witness has specifically stated in her examination-inchief that her father had fired gunshot injury over the head of her mother at her temporal region. This witness has specifically showed the place of injury by placing her finger over her temporal region before the trial Court during recording of her statement.
72. Learned counsel for the appellant has submitted that this witness had stated in para 2 of her cross-examination **eEeh dks flj esa xksyh yxus ls og fxj iM+h Fkh vkSj eSusa mls txk;k Fkk** But the police statement recorded under Section 161 of Cr.P.C. of this witness is lacking about the aforesaid. Learned counsel for the appellant further submitted that in para 3 of cross-examination this witness has also stated that her maternal grand parents have tutored her to give evidence against her father then her father shall be punished.
But the aforesaid arguments have no force as this witness has specifically stated in para 4 of her cross-examination that what she had seen she is stating before the court **eSusa tks ns[kk gS ogha crk jgh gwW A ** This witness was also asked question as under:- **iz’u & ftl fnu ?kVuk gq;h ml fnu vkids ikik ekyuiqj QsDVz~h esa nks cts okyh f’kQWV dh fM;wVh ds fy;s fnu ds ,d cts ?kj ls fudy x;s Fks vkSj jkr ds lk<+s 12 cts vk;s Fks \ mRrj & fM;wVh ls vkus ds ckn esjs ikik us esjh eEeh dks xksyh ls ekjk Fkk A**
73. In para 5 of cross-examination this witness has specifically stated that **;g dguk xyr gS fd esjs lkeus dksbZ ?kVuk ?kfVr ugha gqbZ Fkh A** The aforesaid statement of the witness itself reflects that the witness Sonali @ Guddi (PW/9) is a child witness aged around 6 years has specifically stated about the commission of offence by her father in her presence and the statement reiterated above is sufficient to prove the credibility of this witness. It also reflects that neither she was tutored by her maternal grand father nor any Advocate. As she is only 6 years old, therefore, there are some contradictions and omissions in her statement while recording evidence before the Court. That’s not material as for 6 years old child, who is totally unaware about the atmosphere of court, statement given by her is totally trustworthy.
74 It is submitted by the learned counsel for the appellant that prosecution witness No.10 Chandrabhan is the brother of the deceased, therefore, his statement cannot be believed. But the aforesaid arguments have no force as only on account of any person, relatives to the deceased, it cannot be said that statements given by such person are unreliable rather it is required to consider the statement given by such person with great cautious.
75. It is settled law that merely because the witnesses may be related to the victim or the complainant, their testimonies may not be rejected. There is no legal canon that only unrelated witnesses shall be considered credible. On the contrary, we are of the view that it is not natural for the related witness to implicate a person falsely leaving aside the actual culprit. It is pertinent to note that only interested witnesses want to see the real culprit is brought to book. In this regard, Hon’ble Supreme Court in the case of Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199, has held in the following manner:
“23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.”
76. In another Judgment by Hon’ble Supreme Court in the case of Seeman v. State, (2005) 11 SCC 142, following has been observed:
“4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness. The prosecution’s nonproduction of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.”
77. In another Judgment by Hon’ble Supreme Court in the case of Jodhan v. State of M.P., (2015) 11 SCC 52, it has been observed that: –
“28. Tested on the backdrop of the aforesaid enunciation of law, we are unable to accept the submission of the learned counsel for the appellant that the High Court has fallen into error by placing reliance on the evidence of the said prosecution witnesses. The submission that when other witnesses have turned hostile, the version of these witnesses also should have been discredited does not commend acceptance, for there is no rule of evidence that the testimony of the interested witnesses is to be rejected solely because other independent witnesses who have been cited by the prosecution have turned hostile. Additionally, we may note with profit that these witnesses had sustained injuries and their evidence as we find is cogent and reliable. A testimony of an injured witness stands on a higher pedestal than other witnesses. In Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , it has been observed that: (SCC p. 271, para 28)
“28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.”
It has been also reiterated that convincing evidence is required to discredit an injured witness. Be it stated, the opinion was expressed by placing reliance upon Ramlagan Singh v. State of Bihar [Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 : 1973 SCC (Cri) 563] , Malkhan Singh v. State of U.P. [Malkhan Singh v. State of U.P., (1975) 3 SCC 311 : 1974 SCC (Cri) 919] , Vishnu v. State of Rajasthan [Vishnu v. State of Rajasthan, (2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302] , Balraje v. State of Maharashtra [Balraje v. State of Maharashtra, (2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107].
29. From the aforesaid summarisation of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him is an inbuilt guarantee of his presence at the place of occurrence. Thus perceived, we really do not find any substance in the submission of the learned counsel for the appellant that the evidence of the injured witnesses have been appositely discarded being treated as untrustworthy by the learned trial Judge.”
78. Learned counsel for the appellant has also submitted that on the date of incident the defence witness No.1 Suresh Tomar has specifically proved the plea of alibi that at the time of incident the appellant was working in the office. But as discussed above in the present case, the modus operandi of the accused and statement given by Sonali @ Guddi (PW/9) that at the time of incident the appellant was remained in his house, hence liability of the appellant to establish that other than appellant, some other person was remained present inside of the house of the appellant, who committed the offence. But the defence has failed to prove the aforesaid facts. Therefore, the trial Court has rightly disbelieved the plea of alibi.
79. In the present case, the motive of the accused is also apparent as he had intended through his wife that FDR and Indira Vikas Patra which were in the name of his wife be encashed for the purchase of Minibus. His wife was not agree with the aforesaid that was the cause of quarrel between them and on the date of incident the aforesaid issue raised again and thereafter incident took place. Thereby, trial Court has rightly held that there was motive of commission of offence under Section 302 of IPC.
80. In the present case immediately after the incident the accused/appellant had absconded the place of incident and thereafter till filing of charge sheet and also thereafter he remained absent. It is undisputed fact that the wife of the accused Ghanshyam is died. It is undisputed fact that the case is of murder of a wife, therefore, the normal phenomena is that immediately after the death of wife the husband would have been remained in his house. But the present accused/appellant’s aforesaid conduct itself reflects that the accused/appellant has committed the offence and has murdered his wife.
81. It is also submitted by the learned counsel for the accused/appellant that no firearm was seized from the possession of the present accused/appellant which is fatal to the prosecution case. But in the present case from the date of incident the accused/appellant Ghanshyam continuously remained absent and investigation was done in his non-presence, therefore, there was no any opportunity of seizure of firearm. Therefore, the aforesaid arguments have no force.
82. In the light of the aforesaid discussion it is apparent that the prosecution witness Chandrabhan has stated in his statement that his sister deceased Vidyabai called her on telephone on the date of incident as there was quarrel with the deceased. Her husband and mother-in-law were demanding FDRs and Indira Vikas Patra. On account of that Chandrabhan (PW/10) along with Brijesh (PW/4), Rajkumar (PW/6) and Raju Goswami (PW/12) reached the house of Ghanshyam. They tried to settle the matter, after settling the dispute they returned back. When they reached near Temple, they heard the sound of gunshot, they rushed to the house of accused/appellant Ghanshyam, there they saw that the accused Ghanshyam was trying to escape from the place of incident from the back door of his house and blood stained dead body of Vidyabai was there. They have also stated that at the place of incident Sonali @ Guddi was there and she was weeping. The aforesaid statements of these witnesses were remained unchanged in their cross-examination. That means the aforesaid witnesses have proved the conduct of the accused that was escape from the place of incident which is relevant under Section 8 of the Indian Evidence Act. They have also stated that they saw blood stained dead body of deceased was there on the place of incident and Sonali @ Guddi was sitting there and was weeping. Sonali @ Guddi (PW/9) has specifically supported the prosecution case and her statement remained throughout natural. Her reactions were so natural that shows that the statement given by Sonali @ Guddi were not tutored statements. There are little contradictions and omissions in her statement which reflects the bonafidy of the witness and such variations/contradictions/omissions are natural due to age of witness that is 6 years and such natural reactions shows the innocence of the witness. Therefore, the trial Court has rightly based its judgment of conviction considering the evidence of child witness which is supported by last seen evidence. Bhagwan Singh (PW/11) and Omprakash (PW/13) have verified the Panchayatnama Laash Ex. D/7. S.D. Verma, Sub Inspector (PW/14) has proved the statement recorded under Section 161 of Cr.P.C. Dr. Yogendra Singh (PW/15) who conduct the postmortem as mentioned above has opined that the death of the deceased was due to gunshot injury that was sufficient to cause death in natural course. M.L.Verma (PW/16) has proved the registration of Merg P/10 and FIR P/4.
83. Defence witnesses Suresh Tomar (DW/1), Satya Prakash (DW/2), Manoharlal (DW/3) have stated in their statements that on the date of incident the accused/appellant was on his duty. But as discussed above, the accused/appellant tried to manage the defence of plea of alibi. But in the present case this endeavour of the present appellant also proves the prosecution case as from the date of incident the accused/appellant has remained absent from his duties. Therefore, the trial Court has not committed any error in discarding the evidence of aforementioned defence witnesses.
84. Therefore, considering the aforesaid the trial Court has rightly convicted the appellant/accused for commission of offence under Section 302 of IPC.
85. Consequently, the appeal filed by appellant Ghanshyam is hereby dismissed and his conviction and sentence passed by the trial Court under Section 302 I.P.C. is hereby confirmed. Appellant- Ghanshyam is in jail. He be intimated with the result of this appeal through the Jail Superintendent.
With a copy of this judgment record of the trial Court be sent back immediately.