Mudami Hoonga vs State Of Chhattisgarh
2022 Latest Caselaw 1193 Chatt

                                           1

                                                                                     AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                      Criminal Appeal No.331 of 2013

     Mudami Hoonga, S/o Shri Somdu Muriya, 49 years, R/o
     Vill. Kadampal, Nayapara, Post & P.S. ­ Kirandul,
     Ditt.Dantewada (CG)
                                           ­­­­ Appellant
                                               (In Jail)
                          Versus

    State       of    Chhattisgarh          Through       District      Magistrate,
    Dantewada, Distt.Dantewada (CG)
                                                                  ­­­­ Respondent

For Appellant:                    Mr.Keshav Dewangan, Advocate
For Respondent/State:             Mr.Soumya Rai, Panel Lawyer


           Hon'ble Shri Justice Sanjay K. Agrawal and
                Hon'ble Smt.Justice Rajani Dubey

                              Judgment on Board
                                  (8.3.2022)

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC

is directed against the judgment of conviction recorded

for offence under Section 302 of the IPC and sentence

awarded i.e. imprisonment for life and fine of

₹2,000/­, in default of payment of fine to further

undergo additional rigorous imprisonment for one month

by the Sessions Judge, Dakshin Bastar Dantewada by the

impugned judgment dated 6.3.2013 in Sessions Trial

No.185/2011.

2. The case of the prosecution, in brief, is that on

10.1.2011 at about 5 p.m. the appellant murdered

deceased Oyami Hoonga by kadari (sharp edged weapon).

It is further case of the prosecution that on the

fateful day of 10.1.2011 at about 5 p.m. the deceased

was taking rest along with his minor daughter Ku.Oyami

Sukdo (PW­6), at that time the appellant came on the

spot and on the pretext of disturbing him and stopping

him from cutting salfi and on the pretext of

witchcraft, the accused caused him one stab injury in

his neck by which he suffered grievous injury and died

instantaneously on the spot and thereby committed the

offence and immediately the appellant absconded from

the spot. Thereafter Smt.Nande Oyami (PW­8), wife of

deceased Oyami Hoonga and mother of Ku.Oyami Sukdo

(PW­6), came to the spot after grazing cattles and

since they were advised to lodge the FIR, FIR (Ex.P­12)

was lodged by Ku.Oyami Sukdo (PW­6) along with Up­

Sarpanch and other villagers for offence under Section

302 of the IPC. Dead body of the deceased was sent for

postmortem to Primary Health Center, Kirandul, where

Dr.K. Goutam (PW­9) conducted postmortem vide Ex.P­9.

After completion of investigation, charge­sheet was

filed before the Court of Judicial Magistrate First

Class, Bacheli, who was committed the case to the Court

of Session, Dakshin Bastar Dantewada for trial in

accordance with law. The accused abjured the guilt and

entered into defence.

3. In order to prove the prosecution case, the prosecution

examined as many as 10 witnesses and exhibited 18

documents Exs.P­1 to P­18. Statement of the

accused/appellant was recorded under Section 313 of the

CrPC in which he denied guilt. However, he examined

none in his defence.

4. The trial Court upon appreciation of oral and

documentary evidence available on record and relying

upon testimony of child witness Ku.Oyami Sukdo (PW­6),

convicted the appellant for offence under Section 302

of the IPC and sentenced him as noticed hereinabove,

against which, this criminal appeal has been preferred.

5. Mr.Keshav Dewangan, learned counsel for the

appellant/accused, would submit that the trial Court

has committed grave legal error in relying upon sole

testimony of child witness Ku.Oyami Sukdo (PW­6)

without further corroboration, which is unsafe. In

absence of any corroboration, testimony of Ku.Oyami

Sukdo (PW­6) could not have been relied upon in view of

decision of the Supreme Court in the matters of Hamza

v. Muhammedkutty alias Mani and others 1 and

Shivasharanappa and others v. State of Karnataka 2. He

would further submit that the prosecution has failed to

bring home the offence under Section 302 of the IPC and

even otherwise, single stab injury is said to have been

caused by the appellant, therefore, his case would fall

under Section 304 Part­II of the IPC. Therefore, the

appeal be allowed and the judgment and order be set­

aside/modified.

6. On the other hand, Mr.Soumya Rai, learned Panel Lawyer

1 (2013) 11 SCC 150 2 (2013) 5 SCC 705

for the respondent/State, would support the impugned

judgment and submit that statement of Ku.Oyami Sukdo

(PW­6) is wholly reliable and trustworthy as she was 15

years at the time of examination and her testimony

inspires confidence and she has rightly been relied

upon and it is not universal rule that unless testimony

of child witness is corroborated by further evidence,

her testimony cannot be relied upon and no conviction

can be recorded on sole testimony of child witness. He

would rely upon the decision of the Supreme Court in

the matters of Shivji Genu Mohite v. State of

Maharashtra3 and submit that the appellant has rightly

been convicted by the trial Court and as such, the

appeal deserves to be dismissed.

7. We have heard learned appearing for the parties,

considered their rival submissions made hereinabove and

also went through the records with utmost

circumspection.

8. The first question for consideration would be, whether

death of deceased Oyami Hoonga was homicidal in nature,

which the trial Court has recorded to be homicidal in

nature based upon testimony of Medical Officer

Dr.K.Goutam (PW­9), who has conducted postmortem and

submitted report vide Ex.P­9, in which he has clearly

opined incised wound of 13 cm. X 3 cm. in left part of

neck and injury was muscle deep. All the injuries were

antemortem, which could have been caused by sharp edged

3 AIR 1973 SC 55

weapon and cause of death according to the doctor was

excessive bleeding and thereby causing cardio

respiratory arrest and death was homicidal in nature.

In view of medical evidence available on record,

finding recorded by the trial Court that death of the

deceased was homicidal in nature is a binding based on

evidence available on record. We hereby affirm the said

finding.

9. The next question is that the appellant has been

convicted on sole testimony of Ku.Oyami Sukdo (PW­6),

daughter of deceased Oyami Hoonga. Her testimony has

been questioned by the learned counsel for the

appellant on the ground that sole testimony of child

witness should not be relied upon to base conviction

unless it is corroborated by other appropriate valid

piece of evidence.

10. In order to answer the question, it would be

appropriate to notice the provisions contained in

Section 118 of the Evidence Act, which states as

under:­

"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."

11. 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 Evidence Act 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 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 Evidence Act, 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 himself that the child is the

competent witness within the meaning of Section 118 of

the Evidence Act 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 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 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.

12. In the matter of Panchhi v. State of UP4 the Supreme

Court has held as under:­

".....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."

13. With regard to the testimony of child witness the

Supreme Court in State of Karnataka v. Shantappa

Madivalappa Galapuji & others5 had noticed the case law

and held as under:

4 (1998) 7 SCC 177 5 (2009) 12 SCC 731

"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 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) :­

"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."

14. The position of law relating to the evidence of a child

witness has been dealt with also by the Supreme Court

in Nivrutti Pandurang Kokate and others V. State of

Maharashtra6 and Golla Yelugu Govindu v. State of Andhra

Pradesh7. In the case of State of U.P. Vs. Krishna

Master & Others8 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.

15. Reverting to the facts of the present case in light of

principle of law laid down by the Supreme Court noticed

hereinabove, in the present case, at the time of

recording of the evidence of Ku.Oyami Sukdo (PW­6), she

was aged about 15 years. In order to satisfy himself,

learned Sessions Judge asked certain questions from

her like, in which class she is studying, for which

purpose she has come to the Court, whether she should

speak truth or not and having satisfied that she

understand the questions put to her, the Court has

appointed interpreter as she was not able to understand

6 2008 (12) SCC 565 7 2008(4) SCALE 569 8 (2010) 47 OCR (SC) 263

Hindi and she used to speak Gondi (local language of

Bastar) and thereafter her statement was recorded.

Ku.Oyami Sukdo (PW­6) has clearly stated that on the

date of incident his father was taking rest/sleeping

with bonfire. She has further stated that she was

sitting beside her father and thereafter the accused

got down from salfi tree and came to their house with

churi/kadari (sharp edged weapon) and made one stab

injury to her father's neck, by which her father died

instantaneously, which she informed to her father's

sister Smt.Madkami Bheeme (PW­7) as her mother was out

of house and gone for grazing cattles and thereafter on

consultation, she reported the matter to the police

station vide Ex.P­12, which has also been proved by

Santosh Degal (PW­10). She has been subjected to cross­

examination, but nothing has been elicited to hold that

she was not present at the time when the appellant made

stab injury to deceased Oyami Hoonga. She has also

refuted the fact that the deceased was intoxicated at

the time of incident and some unknown person has

murdered him. As such, testimony of Ku.Oyami Sukdo (PW­

6) remained uncontroverted and merely on account that

she is child witness, her testimony cannot be

discarded. Furthermore, the appellant's lungi and

bloodstained soil were sent to Forensic Science

Laboratory and report is available at page­32 of paper

book, in which blood was found in the appellant's lungi

and blood seized from the spot.

16. At this stage, submission of the learned counsel for

the appellant is that since one stab injury caused by

the appellant herein found to have been established,

therefore, it is a fit case that offence under Section

302 of the IPC should be converted under Section 304

Part­II of the IPC as the appellant is in jail since

12.1.2011 and his sentence should be modified

accordingly.

17. Having heard the learned counsel appearing for the

parties, having gone through the records and the manner

in which the appellant came armed with sharp edged

weapon and caused one stab injury to neck of the

deceased by which he died instantaneously on the stop

and the appellant immediately absconded, we are unable

to hold that the act of the appellant would fall within

Exception of Part­II of Section 304 of the IPC. In our

opinion, the learned Sessions Judge is absolutely

justified in holding that the appellant has committed

the offence under Section 302 of the IPC and he has

rightly been sentenced for imprisonment for life. We do

not find any reason to interfere with the finding

recorded by the learned Sessions Judge. We hereby

affirm the said finding.

18. Accordingly, the criminal appeal deserves to be and is

hereby dismissed.

                   Sd/­                                              Sd/­

        (Sanjay K. Agrawal)                                   (Rajani Dubey)
             Judge                                                 Judge
B/­