Jagpal Singh Vs. State of Rajasthan - Court Judgment

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penal code - section 302--fir filed at earliest--whole incident men turned in fir--testimony of child witness corroborated by fir--plea of alibi not tenable--held, conviction was justified.;appeal dismissed - - he had grabbed his land which was not liked by the villagers and therefore he left his village and started living in the field in a dhani with him. learned counsel submitted that the testimony of a child is too weak to connect the accused appellant. state of rajasthan 1984 wln 187. 6. so far as the testimony of child witness is concerned it is a settled proposition of law so far as indian courts are concerned that if the child witness is reliable then the conviction can be maintained on that ground alone. in this case, there are a number of circumstances which, in our opinion, indicate that it will not be quite safe to rely on her evidence. in these circumstances, learned counsel submitted that it is not safe to convict the accused on the basis of the testimony of this child witness. 10. we have given our utmost consideration to the testimony of this child witness and we are of the opinion that after going-through the testimony of this witness we find that this witness is reliable and trust worthy. the criticism levelled by the learned counsel does not hold good. thus this was just natural of a young boy like hardayalsingh to have gone back to slumber or kept lying waiting for day break. lj noc 100 is concerned, in this case the testimony of the child witness was not found safe.ashok kumar mathur, j.1. this is an appeal against the judgment of the learned additional sessions judge, raisinghnagar dated 27-2-1981 where by he has convicted the accused appellant under section 302 i.p.c. and sentenced him to life imprisonment.2. the facts giving rise to this appeal are that on 4-10-1979 at about 9 a.m. one sukhvindra singh son of kripalsingh jat sikh resident of 18 g.b. informed at police station, anoopgarh that his brother-in-law accused jagpal singh lives along with his children in chak 73 g.b. in a dhani. his mother sarjeet kaur and his father in law sarwansingh also reside with him. on 4-10-1979 at about 7 a.m. pw 3 hardayalsingh son of accused jagpalsingh, aged about 10 years came to his dhani and informed his wife amarjeet kaur that in the night when he along with his younger brother were sleeping on cot with his mother and his grand-mother sarjeet kaur was sleeping on a separate cot the accused jagpalsingh came and killed his.mother chhindi and his grand mother sarjeet kaur with a kassi. both the deceased are lying in the dhani hearing this from hardayalsingh, sukbvindra singh along with the villagers and his wife went to the dhani of accused jagpalsingh and found that the two dead bodies were lying in pool of blood on cots. on the basis of this information, a case under section 302, indian penal code was registered against the accused. the accused was arrested on 5-10-1979 and on the information given by him on 9-10-1979 an axe was recovered. one more axe with a broken handle was recovered from the scene of occurrence. both the dead bodies were sent for post mortem. necessary panchnama and site plan were prepared. during the course of investigation, statements of hardayalsingh, amarjeet kaur and sarwansingh were also recorded under sections 161 and 164 cr. pc after close of the investigation, a challan was filed against the accused under section 302 i.p.c. and ultimately the accused was committed for trial to the court of sessions.3. the prosecution examined 8 witnesses and got a large number of documents exhibited. the defence examined only one witness. the plea of the accused was that his father-in-law sarwansingh developed an illicit intimacy with his mother after the death of his father. he had grabbed his land which was not liked by the villagers and therefore he left his village and started living in the field in a dhani with him. he further deposed that he wanted to remove him from this land and wanted to cultivate himself. sarwan singh his father in law, bantasingh and milkiyatsingh threatened him. he further submitted that on the fateful night when his mother and wife were murdered he had gone to the police station, anoopgarh to lodge a complaint about danger to his life. but the sub-inspector was not available therefore he came back. he further deposed that hardayalsingh his son is immature as he is a child and he has been tutored by sarwansingh and milkiyatsingh.4. the learned trial judge, after recording the evidence and hearing both the parties, came to the conclusion that the prosecution has established beyond doubt that the accused has caused the death of both the deceased and, therefore, he found the prosecution case proved against the accused and convicted him under section 302 i.p.c. and sentenced him to life imprisonment. aggrieved against this, the accused appellant has preferred this appeal.5. mr. shreemalee and mr. b. advani who was appointed as amicus curiae, submitted that the present case depends only on the testimony of a child witness i.e. hardayalsingh. the other witnesses, namely, sukhvindra singh pw 4, mst. amar jeet kaur, pw 5 have already turned hostile. learned counsel submitted that the testimony of a child is too weak to connect the accused appellant. learned counsel have also invited our attention to lakhanpal v. the state of madhya pradesh 1979 cr. lj 1217; bhag singh v. state of haryana 1979 cri. lj noc 100; and mst. dhapi v. state of rajasthan 198 rlw 80. as against this learned public prosecutor has invited our attention to mangalsingh and anr. v. state of rajasthan 1984 wln 187.6. so far as the testimony of child witness is concerned it is a settled proposition of law so far as indian courts are concerned that if the child witness is reliable then the conviction can be maintained on that ground alone. but a word of caution has been added that the testimony of a child witness should be corroborated in order to lend greater assurance.7. it has been observed in state of bihar v. kapil singh : 1969crilj279 as under:while such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that under influence, she might have been coached to give out a version by persons who may have influence on her. in this case, there are a number of circumstances which, in our opinion, indicate that it will not be quite safe to rely on her evidence.8. it was held in mohammed sugal esa mamasan rer allah v. the king air 1946 pc 3 by their lordships of the privy council as under:in england where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. but in the indian act there is no such provision and the evidence is made admissible whether corroborated or not. once there is admissible evidence a court can act upon it, corroboration, unless required by statute, goes only to the weight and value of the evidence. it is a sound rule in practice 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.9. in this back ground of the legal position, we have to examine the testimony of pw 3 hardayalsingh. pw 3 hardayalsingh is a child witness and the learned additional sessions judge before examining him has put him necessary questions to find out that whether the child understands the difference between truth and falsehood and the sanctity of oath. this witness is aged 10 to 11 years his statement under section 164 cr. p.c. was also recorded. he has deposed that on the fateful night his father, mother and grand mother were also sleeping in the same room. he along with his brother was sleeping with his mother and his grand mother was sleeping on another cot at a short distance and there also his younger sister and son of her father's sister were also sleeping with her. in the mid night at 12, o'clock accused jagpalsingh got up from his bed and hit his mother on the face and neck with the kassi. she made some sound and her legs trembled which work him up. he immediately sat up towards her leg side and pulled his brother balvinder near him at the leg side. accused jagpalsingh after giving 5 to 10 blows with the axe on his mother went towards his grand-mother deceased sarjeet kaur and gave her 5 to 10 blows with the kassi on her head and neck. thereafter he left along with kassi and pagri. he again went to sleep and thereafter in the morning he went to inform his bau amarjeet kaur sister of accused in chak 73 cb. there he met the husband of amarjeet kaur, sukhvindrasingh pw 4. thereafter they all came at his dhani and police was also informed and necessary investigation was taken up. both the learned counsel have criticised the testimony of this witness from various angles. learned counsel submitted that firstly this witness is a child witness, therefore, his testimony should not be accepted. secondly, it has been pointed out that it is unnatural when he was sleeping on the same cot where his mother was sleeping it is just natural that either he could have received injuries or blood on his clothes. neither he received any injury nor any blood on his clothes has been found. it has been further pointed out that when such heinous crime has been committed before this child neither he protested nor his grand mother who was sleeping just near on the another cot wake up. this is unnatural conduct. it has further been pointed out that he neither wept nor wailed. in these circumstances, learned counsel submitted that it is not safe to convict the accused on the basis of the testimony of this child witness. learned counsel has also pointed out that the father-in-law of the accused who had developed intimacy with his mother wanted to grab the land.10. we have given our utmost consideration to the testimony of this child witness and we are of the opinion that after going-through the testimony of this witness we find that this witness is reliable and trust worthy. it is settled proposition now by the decision of their lordships of the supreme court that the conviction can be upheld on the testimony of a child witness. in the present case, the child is between 10 to 11 years of age. the criticism levelled by the learned counsel does not hold good. it has been argued that the accused will not assault his wife when his young children were sleeping. true, it is a hazardous act. but the accused has taken enough care not to hit the deceased on the lower portion of her body. all the injuries have been confined to head and neck. the injuries of deceased mst. chhindi, mother of hardayalsingh read as under:(1) incised wound 3-1/2' x 1' x 1-1/2' on the rt. side of face from comcha of ear 1/6' below meatus crossing tragus running medially & upwards on forehead, frontalis muscle superior temporal artery, suriculo temporal nerve cut frontal & temporal bones broken 2' x 1/2' pieces of bones present in the wound. blood clots present in the wound margins were regular;(2) incised wound 2' x 3/4' x 3/4' from centre of lower lip towards right side & slight below. orbecularis oris, depresser anguli oris, depressor labai inferiois, and mentalis muscles, inferior labial artery, facial nesses, facial artery vein were cut margins were regular. blood clots were present in the wound;(3) incised wound 1-3/4' x 1/8' x 1/2' on rt. border of tongue;(4) right lower central & iateral incirors cannine, two premolars & first molar were broken at the margines of gums;(5) left upper central inciror, rt. central inciror were broken at the margins of gums;(6) rt. maxilla from canine to 1st molar tooth broken at the root of teeth;(7) one incised wound 1-1/2' x 1/4' x 1/8' to 1/4' inwards of centre of chin towards rt. side 7 slightly downwards. margins were regular clots of blood were present in the wound.(8) transverse incised would 2-1/2 x 1-1/4' x 1-1/4' in front of neck between hyoid bone & hyoid cartilage. platysma muscle rt. & left anterior jugular veins, anterior cut aneous nerves of neck, sterno hyoid & omo hyoid & thyroid muscles of both sides, larynx & phyarynx (anterior & lateral walls) were cut clots of blood were present in the wound margins were regular;(9) incised wound 2' x 1' x 1' transverse on the rt. side of neck below thyroid cartilage from centre or neck towards rt. side. rt. half of larynx & trachia at junction, sterno mastoid, orao lyoid, sterno hyoid muscles internal jugular vins, vagus nerve sl common carotid artery were cat. margins were regular & blood clots were present in the wound;(10) incised wound 2' x 3/4' x 1/4' transverse from 1' below the centre of injury no. 9 towards rt. side. it was cutting sterno mastoid muscles, internal jugular vinus, bogus nerve common carotid artery. margins were regular & clots of blood were present in the wound.thus, the accused has not caused any injury on the lower portion of the body of the victims because his young children were sleeping along with his wife. during the commotion of these injuries, this witness hardayalsingh got up and sat near the leg side of deceased and pulled his younger brother balvinder near him. thus, this rules out any injury either to both the brothers and blood on their clothes. both hardayalsingh and balvinder were away from these injuries therefore non-appearance of blood on their clothes appears to be just natural. so far as protest is concerned, a young boy in a dead night can hardly put any protest fearing his own life. thus this was just natural of a young boy like hardayalsingh to have gone back to slumber or kept lying waiting for day break. in the early morning and at the sun rise this boy immediately rushed to inform about this incident to his bau mst. amarjeet kaur who was living in chak 73 g. 8. it has also been argued that when the injuries were caused to mst. chhandi that did not woke up mst. sarjeet kaur grand mother of hardayalsingh and mother of accused jagpalsing. looking to the nature of injuries and quick succession with which these injuries were caused to the deceased it is difficult to imagine that mst. chhindi could have raised any cries or commotion which could have waken up mst. sarjeet kaur. it has further been argued that looking to the nature of injuries on the victims it rules out act of one person. we are not impressed by this argument as the accused had no compaction as he has already dealt with the deceased chhindi brutally and thereafter there was no one to resist him and he did not spare his mother also and dealt with her with, kassi. the testimony of this witness stands corroborated from the fact that soon after the incident he rushed to pw 4 sukhvindrasingh and amarjeet kaur and narrated this incident, but both these witnesses have turned hostile. however, in the first information report filed on 4-10-1979 at 9 a.m. there is a mention about this fact that the accused jagpalsingh has caused these injuries to the deceased persons. in the back-ground that his mother has developed an illicit intimacy with his father in law and both, his mother and wife, used to quarrel with him that appears to have goaded the accused to resort to this extreme step. learned counsel has also pointed out that one more kassi with a broken handle was lying at the scene of occurrence. this kassi with a broken handle is not unusual as this is an agricultural instrument which is available in the house of every agriculturist.11. so far as the cases cited by the learned counsel for the appellant are concerned, it depends upon case to case. the para-meter has already been laid down by their lordships of the supreme court that to the testimony of a child eye-witness has to be adjudged.12. lakhanpa's case does not deal with the testimony of a child witness. so far as bhag singh's case 1979 cri. lj noc 100 is concerned, in this case the testimony of the child witness was not found safe.likewise, in mst. dhapi's case 1983 rlw 80 the testimony of the child witness was found to be suspicious. but as against this in mangohingh's case 1984 wln 187 the testimony of this child witness was found to be sufficient to convict the accused. thus, the facts vary from case to case. in the present case, we have found the testimony of the child witness hardayal singh as truthful and stands corroborated from the fact that the first information report was filed earliest in time and the name of the accused and the whole incident find mention.13. so far as the plea of the accused is concerned, that has not been established. the accused has not produced any evidence to show that in fact he had gone to the police to lodge any report. thus, he plea of the accused of alibi that at the relevant time he was at police station for lodging the report does not appear to be tenable.14. thus, in the result, we do not find any merit in this appeal and the same is dismissed. the conviction and sentence of the accused appellant is affirmed.