Chattisgarh High Court
Mangiya Ram Uikey vs State Of Chhattisgarh on 15 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.152 of 2014
Mangiya Ram Uikey S/o Sukhram Uikey, aged about 45 years,
R/o Village Bokudtula Devkonde, P.S. Manpur, District
Rajnandgaon, Civil & Revenue District Rajnandgaon (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh Through Station House Officer, Police
Station Manpur, District Rajnandgaon (CG)
---- Respondent
For Appellant: Mr.Anil Gulati, Advocate
For Respondent/State: Ms. Madhu Nisha Singh, Dy.G.A.
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Narendra Kumar Vyas
Judgment on Board
(15.3.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant/accused herein
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 ₹5,000/-, in default of payment of fine to further undergo
additional rigorous imprisonment for one year by the Sessions
Judge, Rajnandgaon by the impugned judgment dated
22.10.2013 in Sessions Trial No.34/2013.
2. Case of the prosecution, in brief, is that 8.1.2013 at about 7.30
p.m. the appellant caused grievous injuries to his wife Mangte
Bai (since deceased) by wooden stick by which she succumbed
to death and thereby committed the offence. It is further case of
the prosecution that deceased Mangte Bai was staying with the
appellant herein and her minor daughter Ku.Vijayshri (PW-3),
aged about 6 years. On the fateful day of 8.1.2013, the
deceased was serving food to the appellant herein and the
appellant demanded water, at that time some quarrel took place
between them, by which the appellant took out wooden stick
from adjoining place and chased the deceased and assaulted
her by that wooden stick on her head by which she suffered
injuries in head and when Ku.Vijayshri (PW-3) (appellant's
daughter), tried to intervene, she was pushed by the appellant
herein and on account of injuries so sustained, the deceased
died on the spot and the appellant absconded to his wife's
brother place Manglu Ram (PW-1) and made extra-judicial
confession to Manglu Ram (PW-1) that he has caused death of
Mangte Bai. It is further case of the prosecution that on the next
day i.e. on 9.1.2013 Manglu Ram (PW-1) came back to the
house of the appellant and the deceased, at that time,
Ku.Vijayshri (PW-3) informed Manglu Ram that the appellant has
caused death of her mother. The said incident of chasing was
seen by Dukhuram (PW-10), Chaiti Bai (PW-9), Kachru Ram
(PW-7), Janglu (PW-4), Jainu Ram (PW-2), Beeru Ram (PW-6)
and Bikru Ram (PW-8) as they have also come to the spot and
inquired from the appellant herein and before them the appellant
herein accepted the fact of causing death of his wife Mangte Bai.
On 9.1.2013 Manglu Ram (PW-1) visited Police Station Manpur
at about 4.35 p.m. and lodged FIR vide Ex.P-1 and merg
intimation vide Ex.P-1A. Inquest was conducted by M.N.Badhi
(PW-12) on 10.1.2013 and thereafter postmortem was
conducted by Dr.Nishant Sori (PW-13) and submitted his report
vide Ex.P10A in which he opined that cause of death was
excessive bleeding and hemorrhage shock due to injuries.
Thereafter, memorandum statement of the appellant/accused
was taken vide Ex.P-5 and pursuant to memorandum statement,
wooden stick was recovered vide Ex.P-6 and it was sent for
examination to FSL and in FSL report Ex.P-16, human blood was
found in wooden stick seized pursuant to memorandum
statement of the appellant herein. After completion of
investigation, charge-sheet under Section 302 of the IPC was
filed before the Court of Judicial Magistrate First Class,
Ambagarh, who was committed the case to the Court of Session,
Rajnandgaon 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 13 witnesses and exhibited 16 documents
Exs.P-1 to P-16 to bring home the offence.
4. The trial Court upon appreciation of oral and documentary
evidence available on record found the appellant guilty for
offence under Section 302 of the IPC based on extra-judicial
confession made by the appellant to Manglu Ram (PW-1) as well
as statement of eyewitness Ku.Vijay Shri (PW-3) and awarded
the sentence as mentioned in opening paragraph of this
judgment, against which, this criminal appeal has been
preferred.
5. Mr.Anil Gulati, learned counsel appearing for the appellant,
would submit that the trial Court has committed grave legal error
in convicting the appellant for offence under Section 302 of the
IPC as the prosecution has failed to bring home the offence and
child witness Ku.Vijayshri (PW-3) is not reliable witness and her
testimony should not be relied upon unless corroborated by other
valid piece of evidence and being daughter, she is interested
witness and extra-judicial confession is also said to have been
made to Manglu Ram (PW-1), who is interested witness being
brother of the deceased and could not have relied upon to base
conviction, as such, the judgment of conviction recorded and
sentence awarded deserve to be set aside.
6. On the other hand, Ms. Madhu Nisha Singh, learned Deputy
Government Advocate appearing for the respondent/State, would
support the impugned judgment and submit that the prosecution
has bring home the offence beyond reasonable doubt and that is
the reason, the trial trial Court has convicted the appellant herein
for offence under Section 302 of the IPC 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 would be, whether death of deceased Mangte
Bai was homicidal in nature. Dead body of deceased Mangte Bai
was subjected to postmortem by Dr.Nishant Sori (PW-13) and
his report is Ex.P-10A. Dr.Nishant Sori (PW-13) has clearly
opined that area of upper face and head region had smashed
completely, brain material had also exposed completely and
body was having blood stained clothings. In his statement before
the Court, Dr.Nishant Sori (PW-13) has clearly stated that head
and face were completely smashed and part of brain was
apparently visible. Cause of death was hemorrhagic shock on
account of injuries in head and face and death was homicidal in
nature, which the trial Court has accepted and held the death to
be homicidal in nature and we do not find any reason to disturb
that finding as even otherwise, it has not been even disputed by
learned counsel for the appellant. Accordingly, we hold that
death of deceased Mangte Bai was homicidal in nature.
9. Coming to the next question, whether death was caused by the
appellant herein.
10. It is not in dispute that their daughter Ku.Vijayshri (PW-3)
was in the house staying along with the appellant and the
deceased. She is child witness. Before discussing the evidence
of 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.
11. In the matter of Panchhi v. State of UP 1 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."
12. With regard to the testimony of child witness the Supreme
Court in State of Karnataka v. Shantappa Madivalappa
Galapuji & others 2 had noticed the case law and held as under:
"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
1 (1998) 7 SCC 177
2 (2009) 12 SCC 731
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."
13. 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
Maharashtra 3 and Golla Yelugu Govindu v. State of Andhra
Pradesh 4. In the case of State of U.P. Vs. 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.
14. Reverting to the facts of the present case in light of
principle of law laid down by their Lordships of the Supreme
Court in the judgments noticed hereinabove, it is quite vivid that
since Ku.Vijayshri (PW-3) is child witness, the trial Court has
firstly asked some questions from said eyewitness as to whether
she is able to understand the questions or not and only
thereafter having been satisfied she has been examined, in
which she has clearly stated that her mother was assaulted by
lathi by her father (Babu). In her cross-examination also, she has
clearly stated that she has witnessed the appellant causing
injuries/assault to her mother. As such, there is uncontroverted
statement of Ku.Vijayshri (PW-3) and she is reliable witness and
there is no iota of doubt not to accept her statement and there is
3 2008 (12) SCC 565
4 2008(4) SCALE 569
5 (2010) 47 OCR (SC) 263
no apparent reason for not accepting the statement of
Ku.Vijayshri (PW-3) that assault was made by the appellant
herein to the deceased on petty/trivial dispute on account of
serving drinking water.
15. Not only this, on the memorandum statement of the
appellant herein vide Ex.P-5, wooden stick was recovered from
possession of the appellant vide Ex.P-6, which was sent for FSL
and FSL report (Ex.P-16), in which the Forensic Science
Laboratory on 6.4.2013 has opined that in wooden stick
recovered from possession of the appellant herein human blood
was found, as such, it is incriminating evidence that has been
found against the appellant. Apart from this, the appellant has
made extra-judicial confession to Manglu Ram (PW-1), who is
brother of deceased Mangte Bai. It is the case of the prosecution
that immediately after the incident, the appellant herein came
into the house of Manglu Ram (brother of the deceased), who
was residing in the same village and informed that he has killed
Mangte Bai and stayed in his house at that night and came back
at morning in his own house along with Manglu Ram and then
wheels of investigation started running. Manglu Ram (PW-1) has
been subjected to lengthy cross-examination, but nothing has
been brought out to hold that no such extra-judicial confession
was made by the appellant to this witness (Manglu Ram).
16. On the basis of testimony of eyewitness Ku.Vijayshri
(PW-3) and further on the basis of memorandum statement,
wooden stick has been recovered vide Ex.P-6 and it has been
subjected to FSL, in which human blood was found in wooden
stick vide Ex.P-16 and as such, the trial Court has rightly
convicted the appellant on the basis of the aforesaid
incriminating evidence based on oral testimony of eyewitness
Ku.Vijayshri (PW-3), memorandum statement and recovery of
wooden stick, in which human blood was found and extra-judicial
statement made by the appellant herein to Manglu Ram (PW-1),
as such, the trial Court is absolutely justified in convicting the
appellant for offence under Section 302 of the IPC. We do not
find any merit in this appeal. Accordingly, we hereby confirm the
conviction recorded for offence under Section 302 of the IPC.
However, considering the fine amount of ₹5000/-, which is
excessive, we hereby reduce the fine amount from ₹5000/- to
₹100/- and if fine amount is not paid, the appellant shall further
undergo R.I. for one month.
17. Accordingly, the criminal appeal is dismissed with above-
stated modification.
Sd/- Sd/-
(Sanjay K. Agrawal) (Narendra Kumar Vyas)
Judge Judge
B/-
