Madhu Paikara Vs State Of Chhattisgarh

Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, validity and correctness of the judgment dated 03.10.2013 passed by the 1^st Additional Sessions Judge, Raigarh, Chhattisgarh, in Sessions Trial No.14/2012, by which the appellant herein has been convicted for offence under Section 302 and sentenced thereunder to suffer imprisonment for life with fine of 15,000/-; in default of₹ payment of fine amount the appellant has to undergo additional rigorous imprisonment for one year while acquitting him from offence under Section 5 of the Tonahi Pratadna Nivaran Act, 2005.

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Prosecution story:-

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On 31.07.2011 at about 10:30 am at village Rajpur, Police Station Lailunga, District Raigarh, Chhattisgarh, the appellant herein assaulted his aunt by iron axe, suspecting her that she used to play witchcraft with him, by which she suffered grievous injuries and died. The said incident was

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reported by Khageshwar Painkra (PW-2), son of the deceased, pursuant to which merg intimation and FIR were registered vide Exs.P/2 & P/1, respectively. Crime details form and nazari naksha were prepared vide Exs.P/4 & P/5, respectively. Inquest proceedings (Ex.P/7) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/10) proved by Dr. Yogeshwar Singh Sarathiya (PW-7) cause of death was as a result of intracereral heamorrhage and spinal injury and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/7), blood stained weapon of offence i.e. iron axe was seized vide Ex.P/8. As per query report (Ex.P/11) proved by Dr. Yogeshwar Singh Sarathiya (PW-7) the injuries which were found over the body of the deceased could be caused by the said seized iron axe. Other articles were also seized. Seized articles were sent for chemical analysis to FSL, however FSL report has not been brought on record for the reason best known to the prosecution.

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After due investigation, appellant herein was chargesheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 8 witnesses and exhibited 19 documents, whereas, defence, in support of its case, has not examined any witness, but exhibited 1 document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellant herein

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questioning the impugned judgment of conviction and order of sentence.

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Submission of the Parties:-

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Mr. Rajesh Jain, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that the case of the prosecution is based on the testimony of child witness Om Prakash Painkra (PW-1), however, he has turned hostile and not supported the case of the prosecution. He would furthe submit that though as per the prosecution pursuant to memorandum statement of the appellant weapon of offence i.e. iron axe was seized, but the witnesses to the memorandum and the seizure namely Mansai Chouhan (PW-4) and Murlidhar Naik (PW-5) have turned hostile and not supported the memorandum as well as the seizure. Even otherwise, the prosecution has not brought the FSL report in support of its case. As such, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the eye witness Om Prakash Painkra (PW-1), child witness, has supported the case of the prosecution and, therefore, the present appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the with utmost care and circumspection.

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Discussion & Analysis:-

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The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative in relying upon the postmortem report (Ex.P/10) proved by Dr. Yogeshwar Singh Sarathiya (PW7), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly,

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we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature.

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Now, the question for consideration would be whether the appellant has assaulted the deceased?

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The case of the prosecution is based on the statement of child witness Om Prakash Painkra (PW-1), grandson of the deceased, as well as on the fact that pursuant to memorandum statement of the appellant blood stained weapon of offence i.e. axe was seized. However, the witnesses to the memorandum and the seizure namely Mansai Chouhan (PW-4) and Murlidhar Naik (PW-5) have tunred hostile and not supported the case of the prosecution. Even otherwise, though the seized articles were sent for chemical analysis, but FSL report of the seized articles has not been brought on record by the prosecution in support of its case for the reason best known to the prosecution. As such, the case of the prosecution is solely based upon the testimony of the child witness Om Prakash Painkra (PW-1). However, his (PW-1) testimony has been

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seriously questioned by learned counsel for the appellant on the ground that the sole testimony of child witness should not be relied upon to base conviction unless it is corroborated by other appropriate valid piece of evidence.

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Since conviction is based on the testimony of child witness Om Prakash Painkra (PW-1), it would be appropriate to notice the provisions contained in Section 118 of the Indian Evidence Act, 1872 (for short “the IEA”) which states as under:-

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“ 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.”

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Before discussing the evidence of the child witness, it would be advantageous to refer to the law relating to child witness. Section 118 of the IEA deals with the question of competency of persons to testify. Under this section, all persons are competent to testify, unless they are, in the opinion of the Court, (a) unable to understand the

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questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the IEA, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy

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himself that the child is the competent witness within the meaning of Section 118 of the IEA and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether

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from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of

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any tutoring. If this test is found in positive, the Court will not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth.

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In the matter of Panchhi v. State of UP 1 , the Supreme

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Court has held as under:-

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“… It cannot be said 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 with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

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With regard to the testimony of child witness, the

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Supreme Court in the matter of State of Karnataka v.

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Shantappa Madivalappa Galapuji & others2 had noticed

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the case law and held as under:-

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“The Indian Evidence Act, 1872 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

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1 (1998) 7 SCC 177

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2 (2009) 12 SCC 731

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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. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129 }. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p.343, para 5) :-

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“A 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 questions and able to given rational 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.”

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16.The position of law relating to the evidence of a child witness has also been dealt with by the Supreme Court in the matters of Nivrutti Pandurang Kokate and others v. State of Maharashtra 3 and Golla Yelugu Govindu v. State of Andhra Pradesh 4 . Further, in the matter of State of U.P.

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3 2008 (12) SCC 565

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4 2008 (4) SCALE 569

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v. Krishna Master & Others 5, the Supreme Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.

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17.In the matter of Digamber Vaishnav and another v. State of Chhattisgarh 6, their Lordships of the Supreme Court while dealing with the question of reliability of child witness held that if the evidence of child witness is not corroborated by other witnesses, it cannot be relied upon, and observed as under: -

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“22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others

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5 (2010) 47 OCR (SC) 263

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6 AIR 2019 SC 1367

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v. State of U.P, (1998) 7 SCC 177 : (AIR 1998 SC 2726), State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70 : (AIR 2000 SC 1066), and State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 : (AIR 2022 SC 2235)].

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In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451 : (AIR 2012 SC 2405, Para 23), this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:

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"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, 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 that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."

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18.Similarly, in the matter of P. Ramesh v. State represented

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by Inspector of Police 7, the Supreme Court while dealing with the question of competency of witness, especially a child witness observed as under: -

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“16.In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto⁸ . A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner⁹ . If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”

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7 (2019) 20 SCC 593

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8 Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7

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9 Sarkar, Law of Evidence, 19^th Edn., Vol. 2, Lexis Nexis, p. 2678 citing Director of Public Prosecutions v. M, 1998 QB 913 : (1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)

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Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in above stated judgments, if we examine the testimony of child witness Om Prakash Painkra (PW-1), in the examination-in-chief he has supported the case of the prosecution by stating that on the date of offence when he was going to the weekly market along with his grandmother (deceased), the appellant came armed with the axe, in the market, and assualted on the neck of the deceased by which she suffered grievous injuries and died. However, in the cross-examination, he (PW-1) has stated that on the date and time of offence though he was going to weekly market along with her grandmother (deceased), but he was following his grandmother and also playing and when nearby people made hue and cry that someone killed Bisun Kunwar (deceased), after hearing that he (PW-1) ran away towards his house. Furthermore, in paragraph No. 5 of his (PW-1) statement before the Court he has specifically stated that he was tutored by his father (PW-2) as his father told him that he (PW-1) has to inform the police that it is

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the appellant who caused the death of Bisun Kunwar (deceased). Moreover, in paragraph No.6 of his (PW-1) statement he has stated that his father (PW-2) had told him that the appellant has to be convicted, therefore, he had taken the name of the appellant before the police.

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It is well settled law that conviction can be based on the single eye wintess and number of eye witnesses are not required, but in the case of child eye witness, to base the conviction of the accused, it is required to assess the statement of the child witness with great care and caution. Returning to the instant case, though in the examination-inchief child witness Om Prakash Painkra (PW-1) has supported the case of the prosecution, but in the crossexamination he has not supported the case of the prosecution and appears to be tutored witness as in paragraph No. 5 of his statement before the Court he has stated that his father had told him to take the name the appellant herein before the police. Even in paragraph No. 6 of his (PW-1) statement before the Court he has reiterated

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the said fact, as such, it would be unsafe to convict the appellant on the basis of the satement of child witness Om Prakash Painkra (PW-1) in absence of other corroborative piece of evidence as the memorandum and seizure witnesses have also turned hostile and not supported the case of the prosecution, therefore, memorandum and seizure are also of no use to the prosecution. Accordingly, the appellant is entitled for acquittal on the basis of benefit of doubt.

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Conclusion:-

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In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 03.10.2013 passed by the trial Court convicting and sentencing the appellant for the offence under Section 302 of the IPC, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a

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period of six months as per provisions contained in Section 437-A of the CrPC.

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Let a certified copy of this judgment along with the original

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record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge

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Ankit

Madhu Paikara v. State Of Chhattisgarh

Case brief

What is this about?

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Madhu Paikara v. State Of Chhattisgarh

Case brief

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