Budhram Jojo vs The State Jharkhand
2023 Latest Caselaw 2342 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.1030 of 2017

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[Against the judgment of conviction dated 21.03.2017 and order of sentence dated 24.03.2017 passed by the learned Additional Sessions Judge, Simdega in Sessions Trial Case No.68 of 2011]

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Budhram Jojo, S/o Saniya Jojo R/o Village-Jorobari, Jojotoli, P.O. & P.S.-Bano, District-Simdega .... Appellant Versus

The State Jharkhand .... Respondent

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

For the Appellant : Mr. Rishi Pallava, Advocate For the State : Mr. Shailendra Kr. Tiwari, A.P.P.

.....

C.A.V. on 05/07/2023 Pronounced on 18/07/2023

Per Sujit Narayan Prasad, J.:

The instant appeal, filed under Sections 374 (2) and 389

(1) of the Code of Criminal Procedure, has been preferred

against the judgment of conviction dated 21.03.2017 and order

of sentence dated 24.03.2017 passed by the learned Additional

Sessions Judge, Simdega in Sessions Trial Case No.68 of 2011,

by which the appellant has been found guilty and convicted for

the offence punishable under Section 302 of the Indian Penal

Code and sentenced to undergo imprisonment for life and pay

fine of Rs.10,000/- and in case of default of payment of fine, he

has further been directed to undergo S.I. for four months with a

condition that 60 per cent of the fine deposited shall go to Piyush

Jojo (P.W.12), son of the deceased persons.

2. This Court, before proceeding to examine the legality and

propriety of the judgment of conviction and order of sentence,

deems it fit and proper to refer the background of prosecution

case, as per fardbeyan of informant, which reads as under:

Fardbeyan of the informant-Bishram Lugun, S/o Late Atwa

Lugun of Village-Karijor, P.S.-Hathibari (Nuageeun O.P.),

District-Sundargarh (Orissa) has been recorded by S.I. Tulsidas

Munda of Girda O.P., District-Simdega on 30.11.2010 at 15.00

p.m. at Jorobari, Jojotoli, wherein, it has been alleged by the

informant that on 30.11.2010 at about 9.00 o'clock, he was in his

home, then his sister's son-in-law namely, Mansidh Jojo

informed him telephonically that his Bhatu (brother-in-law) and

sister had been killed with farsa by Budhram Jojo. Upon such

information, he came in Village-Jorobari, Jojotoli, P.S.-Bano

(Girda O.P.) in the house of his said brother-in-law (Bhatu) and

saw the dead body of his brother-in-law, namely, Bhadwa Jojo

and sister Sugi Jojo lying in their bed room with pool of blood

and on enquiry, nearby co-villagers and his maternal nephew

(bhagina) namely, Piyush Jojo, aged 9 years disclosed him that

on the last evening, the accused abused with deceased persons

relating to land dispute and in the night at about 10.00 o'clock,

the accused Budhram Jojo armed with farsa came in the bed

room and killed both Bhadwa Jojo and Sugi Jojo, the deceased

persons and fled away. There were several serious injuries on

the face, head and body of both deceased persons who died on

the spot.

He has further disclosed the motive of the occurrence that

the accused, own nephew of his deceased brother-in-law had

land dispute with both the deceased persons and due to said

reason, he killed the deceased persons and fled away along with

alleged farsa and thereafter, his fardbeyan was recorded by the

local Police and after reading and finding the same true, he put

his signature over it in presence of his maternal nephew

(bhagina) namely, Piyush Jojo who has also put his thumb

impression as witness.

On the basis of fardbeyan of the informant, Bano (Girda

O.P.) P.S. Case No.43/10 dated 30.11.2010 under Section 302

of the Indian Penal Code, was registered against the accused

person and the matter was investigated by the Investigating

Officer, who after investigation submitted charge-sheet no.06/11

dated 31.01.2011.

Thereafter, the cognizance of the offence was taken and

the case was committed to the Court of Sessions wherefrom the

case was received in the Court for trial and disposal and the

charge was framed against the sole accused, who had pleaded

not guilty and claimed to be tried.

3. In course of trial, the prosecution has examined altogether

14 witnesses, namely, P.W. 1-Silwanti Jojo, P.W.2-Sunil Jojo,

P.W. 3-Mansidh Jojo, P.W. 4-Beera Jojo, P.W.5-Birsa Jojo,

P.W.6-Barna Jojo, P.W. 7-Tulsidas Munda P.W. 8-Dr. Christ

Anand Xaxa, P.W. 9-Sukermani Lugun, P.W. 10-Birasmani Jojo,

P.W.11 Sukermani Jojo, P.W.12-Piyush Jojo, P.W.13-Bhardul

Sharma and C.W.1 Bishram Lugun.

4. The trial Court, after recording the evidence of witnesses,

examination-in-chief and cross-examination, recorded the

statement of the accused person under Section 313 of the

Criminal Procedure Code and found the charges levelled against

the appellant proved.

Accordingly, the appellant had been found guilty as such

sentenced and convicted vide impugned judgment of conviction

dated 21.03.2017 and order of sentence dated 24.03.2017,

which is the subject matter of instant appeal.

5. The aforesaid judgment of conviction and order of

sentence is under consideration before this Court as to whether

the trial Court, while convicting the accused person, has

committed any illegality or not?

6. Mr. Rishi Pallava, learned counsel for the appellant has

assailed the impugned judgment of conviction and order of

sentence on the following grounds:

(I). The conviction is based upon the testimony of two

child witnesses, i.e., P.W.10 and P.W.12 but the learned

trial Court has not considered the competency of child

witnesses, since, no such question has been put in order

to assess the competency as to whether the testimony of

both the witnesses can be said to be admissible.

(II). The blood stain farsa from which, the crime was

committed, had been sent to Forensic Science Laboratory,

wherein, two reports have come, but it would be evident

that blood stain had been found in the tangi, while crime

had been committed as per the prosecution version from

the farsa and the same is material contradiction but the

said aspect of the matter has not been appreciated by the

learned trial Court.

(III). The Investigating Officer has also not come out with

the fact, from which place the farsa which was used in the

commission of crime has been recovered.

Learned counsel for the appellant has advanced his

argument on the aforesaid premise that the impugned judgment

suffers from infirmity and hence, not sustainable in the eyes of

law.

7. Per Contra, Mr. Shailendra Kumar Tiwari, learned Addl.

Public Prosecutor appearing for the respondent-State has

submitted that the testimony of P.W.10 and P.W.12 cannot be

discarded due to the reason that the learned trial Court, after

examining their competency, as would appear from their

deposition itself and thereafter accepted their depositions, in

which, they have supported the prosecution version that murder

of their parents has been committed by the appellant/accused.

It has further been submitted that the testimony of these

two witnesses, i.e., P.W.10 and P.W.12 has been found to be

corroborated by the learned trial Court from the testimony of

Doctor who had conducted the postmortem as also the FSL

report and as such, the conviction cannot be said to be improper,

since, the testimony of P.W.10 and P.W.12 has been found to be

corroborated with the recovery of blood stain farsa and blood

was found to be of male human blood as per FSL report.

It has also been submitted that the witnesses, i.e., P.W.10

and P.W.12 have been considered to be eye witnesses, since, in

the night inside the house, the appellant had committed murder

by assaulting from farsa and therefore, there is no reason not to

disbelieve their testimony, since, the requirement as under

Section 118 of the Evidence Act has duly been followed by the

learned trial Court.

Learned Additional Public Prosecutor, in the aforesaid

premise, has submitted that the impugned judgment of

conviction and order of sentence suffers from no infirmity.

8. We have heard learned counsel for the parties, perused

the material available on record more particularly the testimony

of the witnesses and the finding recorded by learned trial Court.

9. This Court, before going into the legality and propriety of

the impugned judgment of conviction/sentence, deems it fit and

proper to refer the testimony of prosecution witnesses.

P.W.1-Silwanti Jojo, P.W.2-Sunil Jojo, P.W.4-Beera

Jojo, P.W.5-Birsa Jojo and P.W.6-Barna Jojo, have been

declared hostile by the prosecution.

P.W.3-Mansidh Jojo, in her examination-in-chief has

deposed that on the date of occurrence, the daughter of

deceased persons, namely, Phool Mani came to meet her

parents but she had seen the dead bodies of her parents and

then she came and informed him about the occurrence.

P.W.7-Tulsidas Munda, is the Investigating Officer of the

case who in course of his investigation recorded the statement of

the concerned witnesses in the case diary, inspected the place

of occurrence, sent the dead bodies for postmortem, received

the postmortem reports and submitted charge-sheet against the

accused person.

He has stated that he did not mention the name of the

Doctor in the charge-sheet nor the inquest reports are available

in the case diary. During his evidence, he has proved the

fardbeyan and its registration as Ext.1, Formal FIR as Ext.2 and

the seizure list as Ext.3.

In para-3 of his cross-examination, he has stated that the

seizure list has been produced in Girda O.P., but whether it has

been produced by the accused is not mentioned.

But perusal of seizure list (Ext.3) transpires that the same

bears the thumb impression of the accused/appellant who

produced the seized iron farsa before the police and the same

also corroborates the prosecution case.

P.W. 8-Dr. Christ Anand Xaxa, who has conducted the

postmortem examination on the dead body of Bhadwa Jojo and

found the followings:-

General Examination:-Rigor mortis present both upper

and lower limbs, decomposition not present, both eyes closed,

mouth also closed.

External injuries:-(i) Sharp cut injury present right side of

face extending from lateral side of eye upto the mid part of lower

jaw-5" x 1" x bone deep with fracture of maxillary bone and right

side of mandible.(ii) Sharp cut injury present right side of neck

extending mid part of the jaw upto the occipital bone-6" x 2" x

muscle and bone deep upto the cervical spine-3" x ½" x muscle

deep.

Internal Examination:-After opening the skull there is

fracture of right temporal bone and haematoma present between

the brain matter and meninges and in the cranial cavity. Both

sides of lungs were pale, heart chamber was containing blood on

right side, left side empty, stomach containing undigested food

with gas, small intestine containing digested food with gas, large

intestine containing fecal matter with gas, urinary bladder was

empty, liver, spleen and kidney were pale.

The Doctor has stated that all the above mentioned injuries

were ante mortem in nature and weapon used was heavy and

sharp cutting object and cause of death has been opined by the

Doctor due to cardio respiratory arrest caused by head injuries.

On the same date, the Doctor conducted the postmortem

examination on the dead body of Sugi Jojo and found the

followings:-

General Examination:-Rigor mortis present both upper

and lower limbs, decomposition was not present.

External Injuries:-(i) A sharp cut injury present left side of

face extending from left side of frontal bone upto the mid part of

left jaw including maxillary area with compound and commuated

fracture of maxillary bone including left side of the mid part of

jaw. (ii) Sharp cut injury present left temporal region-3" x ½" x

bone deep.

Internal Examination:-After opening the cranial cavity

there was fracture of temporal bone with hematoma present

between meninges & brain matter, blood containing in cranial

cavity, both sides of lungs were pale, heart chamber containing

blood in left side, right side was empty, stomach containing

undigested food, rice and vegetables with gas, small intestine

containing the digested food with gas, large intestine containing

fecal matter with gas, urinary bladder was empty, uterus not

gravid, liver, spleen and kidney were pale.

The Doctor has stated that all the above injures were ante

mortem in nature and weapon used was heavy and sharp cutting

object and cause of death has been opined by the Doctor to be

due to cardio respiratory arrest due to head injury.

During his evidence, he proved the postmortem reports as

Ext.-4 & 4/1 respectively.

In para-3 of his cross-examination, he has stated that he

cannot say the exact measurement of the weapon and nature of

weapon may be more than half Kg.

P.W. 9-Sukermani Lugun, mother-in-law of the deceased,

namely, Bhadwa Jojo stated in her examination-in-chief that on

the information of her grand-son, namely, Fulman that her son-

in-law (damad), namely, Bhadwa Jojo and daughter, namely,

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Sugi Jojo had been killed, she went at the place of occurrence

and saw the dead bodies of the deceased persons. At this stage,

she has been declared hostile by the prosecution and she

denied of recording of her statement by the Police in course of

investigation.

In her cross-examination, she stated that she is adducing

her evidence voluntarily.

P.W.10-Birasmani Jojo, a child witness, daughter of

deceased persons has stated in her examination-in-chief that on

the date of occurrence she along with her parents was sleeping

in her house but in the meantime, the accused armed with tangi

cam there and killed her parents. She raised alarm and her

parents sustained injuries and blood started flowing and after

half an hour, her parents died. She has identified the accused in

the dock.

In para-3 of her cross-examination, she has stated that the

accused is her uncle

In para-4 of her cross-examination, she has stated that

previous dispute was there in between both the sides.

In para-5 of her cross-examination, she has stated that at

present she is living with her maternal aunty (mausi) in another

village and today, she has come in the Court along with her

mausi.

P.W.11-Sukermani Jojo @ Sunita Jojo, another daughter

of deceased persons appeared in the Court but she was not

competent to adduce her evidence.

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P.W.12-Piyush Jojo, another child witness and son of the

deceased persons has stated in his examination-in-chief that on

the date of occurrence, he was sleeping with his parents in home

and in the night, the accused armed with tangi came there and

killed his parents who sustained injuries near eyes and his

parents died on the spot. He has identified the accused in the

dock.

In para-3 of his cross-examination, he has stated that the

occurrence occurred at about 9.00 o'clock night and on the next

morning at about 6.00 o'clock, he woke up but till then her

parents had died.

In para-4 of his cross-examination, he has stated that

today he came in the Court to adduce his evidence along with

his mausi and the occurrence has not been narrated to him by

his mausi.

P.W.13-Bhardul Sharma, a local A.S.I. during his

evidence produced and proved the following material exhibit

returned after FSL test in sealed condition and sealed pack

opened in presence of learned counsel of both the sides, i.e.,

one iron farsa with bamboo cane as material Ext.-I.

During his evidence he has proved the chalan and

forwarding letter relating to said material exhibit as Ext.6 & 6/1

respectively.

C.W.1-Bishram Lugun, the informant has stated and

supported the factum of the occurrence in his examination-in-

chief that the deceased persons were his brother-in-law and

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sister and on receiving telephonic information that both the

deceased had been killed with farsa, he came in Girda O.P. and

saw the dead bodies in the Police Station but who had killed the

deceased persons is not known to him or no motive of

occurrence is not known to him and thereafter, his fardbeyan

was recorded by the local police over which he put his signature.

During his evidence, he has proved his signature on

fardbeyan as Ext.7 and at this stage, this witness has been

declared hostile by the prosecution and denied of recording of

his further statement by the Police in course of investigation of

the case.

In para-2 of his cross-examination, he has stated that the

Police obtained his signature on a blank paper and not on the

fardbeyan.

In para-3 of his cross-examination, he has stated that the

accused is innocent and in para-4, he has stated that he is

adducing his evidence voluntarily without any fear and the

occurrence was not disclosed to him by his maternal nephew

(bhagina), namely, Piyush Jojo.

But perusal of deposition of this witness proves that on

telephonic information, he came at the place of occurrence and

saw the dead bodies of both the deceased persons, namely,

Bhadwa Jojo and Sugi Jojo, his brother-in-law and sister

respectively.

10. The learned trial Court, on the basis of oral as well as

documentary evidence available on record, passed the

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impugned judgment of conviction and order of sentence, which is

the subject matter of instant appeal.

11. This Court, after having considered the testimony of

witnesses is now proceeding to consider the argument advanced

on behalf of the parties and before considering the legality and

propriety of the impugned judgment, deems it fit and proper to

refer the requirement which is to be followed by the learned trial

Court before permitting the child witness for examination or for

accepting the testimony, as provided under Section 118 of the

Evidence Act, for ready reference, Section 118 of the Evidence

Act is being referred 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.

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."

12. The Hon'ble Apex Court has also interpreted the issue of reliability of testimony of child witnesses, as has been held in the judgment rendered in the case of Virendra alias Buddhu & Anr. Vs. State of Uttar Pradesh [(2008) 16 582], relevant paragraph of which is quoted as under:

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19. A child of tender age can be allowed to testify if he or she 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.

20. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5)

"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 give 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."

21. Subsequently, in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that (SCC p. 67, para 7) though

"[t]he 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 the said Judge may resort to any examination

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which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath."

but"[t]he decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous".

The Bench further held as under: (Ratansinh case [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7)

"7. ... This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken 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."

Further, the Hon'ble Apex Court in the judgment rendered in the case of Nivrutti Pandurang Kokate & Ors Vs. State of Maharashtra [(2008) 12 SCC 565], wherein at paragraph 10, it has been held as under:

10. "6. ... 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

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understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States [40 L Ed 244 : 159 US 523 (1895)] . 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 : 2002 SCC (Cri) 413].)

7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5)

"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 give 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.‟

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 the 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 that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established

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principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped 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."

The above position was highlighted in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC pp. 67-68, paras 6-7. Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference.

It is, thus, evident from the testimony of child witness is not

to be discarded if the requirement as stipulated under the

statutory command as under Section 118 of the Evidence Act,

has been followed by the learned trial Court.

13. This Court, in the aforesaid legal premise, is now

proceeding to examine the arguments advanced on behalf of the

learned counsel for the appellant, as to whether the testimony of

P.W.10 and P.W.12 can be said to be inadmissible.

Admittedly, on the date of occurrence, P.W.10 was aged

about 5 years, while P.W.12 was having the age of 7 years and

both were the daughter and son of the deceased parents

respectively.

It is evident from the prosecution version that P.W.10 and

P.W. 12 were sleeping in the night along with their parents and

the appellant entered in the house and given blow from farsa,

due to which, they had died at the spot.

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P.W.10 and P.W. 12 had been taken by their mousi

(maternal aunt) and thereafter, FIR was instituted.

The Police has investigated, prepared the inquest report

and farsa by which assault was given stained with blood, had

been sent to Forensic Science Laboratory.

The Forensic Science Laboratory had sent the report

wherefrom, it is evident that the blood stain which has been

found in the farsa, was of male. However, so far as the second

report is concerned, no specific report has come due to

degrading of the sample, for ready reference, the FSL report is

being referred as under:-

"Description of articles contained in the parcel

The packet marked-'A' contained one FARSA with wooden

handle. The FARSA blade measured about 19.0 cm and

wooden handle about 91.0 cm. It bore reddish brown

stains over large areas.

Result of examination

1. Blood has been detected over large areas in the exhibit

marked-'A'.

2. Serological report on origin etc of blood would follow.

3. DNA profiling report on sex of blood would follow.

Description of articles submitted for Serological

Examination

Description of articles - Swab from FARSA, Nature of

stains-Blood, Exhibit marked-A.

Results of the Serological Examination

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Exhibit marked- A, Nature of stains - Blood, Origin-

Human, Group-A.

(II) That the FSL test report (Ext.-5) further shows dispatch

of one parcel through the Special messenger and content

has been mentioned in the report from I.G. (Biological

examination). Description of the source of exhibit.

1. Swab from the blood stained FARSA Marked- A.

Results of Examination Report

Method-

1. Exhibit marked-A (Source: Swab from blood stained

FARSA) was subjected to Organic Extractions Method for

DNA isolation

2. The Exhibit marked-A (source: Swab from blood

stained FARSA) yielded highly degraded DNA.

3. The degraded DNA extracted from the Exhibit

marked-A (source: Swab from blood stained FARSA) was

subjected to multiplex PCR reaction for co-amplification of

15 autosomal STR loci and amelogenin gender locus

using Amp FISTR Identifiler Kit.

4. The degraded DNA extracted from the Exhibit

marked-A (source: Swab from blood stained Farsa) was

also subjected to co-amplification of 08 autosomal-STRS

Microsatellite loci using AmpFISTR Minifiler kit.

5. The amplified products along with controls were run

for electrophoresis on the Automated DNA Sequencer

3130 (ABI). The sizing of fragments were carried out

using Gene Mapper ID software V3.2 with respect to

Gene Scan 500 Liz size standard.

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6. The resultant allelic distributions (genotypes) for the

studied loci in the exhibit is shown in the table as under:

Table No.1 Genotype (distribution of alleles) of

different loci of the DNA extracted from the exhibit

marked-A using Identifiler Kit.

Sl. No.        Name of Loci        Exhibit marked-A (Source:Swab

                                   from blood stained FARSA)

1.                    D8S1179                                N.A.

2.                    D21S11                                 N.A.

3.                    D7S820                                 N.A.

4.                    CSF1PO                                 N.A.

5.                    D3S1358                                N.A.

6.                    THOI                                   N.A.

7.                    D13S317                                N.A.

8.                    D16S539                                N.A.

9.                    D2S1338                                N.A.

10.                   D19S433                                N.A.

11.                   VWA                                    N.A.

12.                   TPOX                                   N.A.

13.                   D18S51                                 N.A.

14.                   D5S818                                 N.A.

15.                   FGA                                    N.A.

16.                   Amelogenin                            N.A.

Table No.2 Comparative Chart of allelic distribution of

08 autosomal-STR loci using Minifiler Kit.

Sl. No.        Minifiler Loci                        Exhibit marked-

1.               D13S317                                   10, 11
2.               D7S820                                    8, 11
3.               D2S1338                                 19*, 20, 23
                                - 21 -



4.            D21S11                                 29, 34.2
5.            D16S539                                 10, 12
6.            F18S51                                 13, 14*,16
7.            CSF1PO                                 10, 12
8.            FGA                                    21, 23
9.            Amelogenin                              X, Y

     Observations:

1. Highly degraded Human DNA could be recovered from the Exhibit marked-A (source: Swab from blood stained FARSA)

2. Partial DNA Profile of a human made could be generated from the DNA extracted from the Exhibit marked-A (source: Swab from blood stained FARSA). Conclusion:

1. The DNA test performed on the exhibit noted above is sufficient to conclude that the blood found on the Exhibit marked-A (source: Swab from blood stained FARSA) is from a human male source of origin.

2. Opinion on other points is not possible as the DNA extracted from the Exhibit marked-A (source: Swab from blood stained Farsa) was highly degraded. Hence, the FSL test report (Ext.-5) appears to this court in consonance with the prosecution case."

It further requires to refer herein that the Doctor who had

conducted the postmortem, has given opinion of cause of death

due to assault given by hard and sharp cutting weapon.

The Investigating Officer has investigated the case and

found the dead bodies inside the room at the place of

occurrence, which is substantiated, as per the version of P.W.10

and P.W.12.

The inquest report was prepared. The seizure list was also

prepared seizing the farsa, wherein, the LTI of the

appellant/accused was taken.

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14. It requires to refer herein that the recovery of farsa which

has been marked as Ext.3, will be said to be in admission, since,

there is no objection on behalf of the defence regarding Ext.3.

15. This Court is now proceeding to assess, the testimony of

child witnesses by taking into consideration the testimony of

other witnesses.

16. The foremost objection has been raised that the

competency of P.W.10 and P.W.12 has not been considered and

therefore, their testimony cannot be said to be admissible.

17. This Court in order to scrutinize the aforesaid ground has

considered the testimony of P.W.10 and P.W.12 wherefrom, it

has found that the test of the competency has duly been followed

by the learned trial Court and after being satisfied with the

answer of P.W.10 and P.W.12, there depositions were recorded.

P.W.10 and P.W.12 consistently have supported the

prosecution version and even they remained consistent in the

cross-examination.

It appears from para-6 & 4 of cross-examination of P.W.10-

Birasmani Jojo and P.W.12-Piyush Jojo respectively, wherein,

they have specifically deposed that they had not been tutored by

their Mausi (maternal aunt), rather, they had seen the

occurrence.

It further appears that the defence has not cross-examined

these two witnesses in order to justify that they are not

competent witnesses, since, no specific question has been

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asked in the cross-examination from them to suggest that

P.W.10 and P.W.12 are not the competent child witnesses.

18. Section 118 of the Evidence Act stipulates the process to

be followed by the trial Court before acceptance of testimony of

child witnesses, which has been interpreted by the Hon'ble Apex

Court in the judgment as referred hereinabove.

It is evident from the facts of the given case so far as the

competency of P.W.10 and P.W.12 are concerned, according to

our considered view, it cannot be said that P.W.10 and P.W.12

are not the competent witnesses.

Moreover, their testimony have been found to be in

corroboration with the testimony of Doctor who had found the

injury as per the description of P.W.10, who has said that the

appellant had given the assault just near the eye and as would

appear from the injury report given by P.W.8, the Doctor that the

injury has been found near the left eye and therefore, the fact

about giving assault by the appellant upon the deceased is being

found to be corroborated with the testimony of the Doctor.

The aforesaid version has also been found to be in

corroboration with the FSL report and the seizure of farsa which

has been accepted by the appellant, since, in the seizure memo,

the left thumb impression of the appellant has been taken and

seizure list has been marked as Ext.3 without any objection.

19. Although, in this case, the informant has become hostile

but that will not vitiate the prosecution version of child eye

witnesses, i.e., P.W.10 and P.W.12, and as such, their

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testimonies have been relied upon by the learned trial Court after

scrutinizing their competency as per the discussion made

hereinabove.

On consideration of the aforesaid fact that the informant

has become hostile, therefore, the testimony of child eye

witnesses, i.e., P.W.10 and P.W.12, cannot be discarded.

20. Statement of appellant recorded under Section 313 Cr.P.C.

has also been perused.

21. Although, in the statement recorded under Section 313

Cr.P.C., the appellant has denied the allegation leveled against

him, but, as per the testimony of child eye witnesses, i.e.,

P.W.10 and P.W.12, the learned trial Court has discarded the

statement of the appellant made under Section 313 Cr.P.C.,

which cannot be said to suffer from infirmity.

22. This Court, on the basis of the discussion made

hereinabove and after going through the judgment passed by the

learned trial Court which is impugned herein, is of the view that

the learned trial Court by accepting the version of P.W.10,

namely, Birsamani Jojo and P.W.12, namely, Piyush Jojo having

found to be in corroboration with the FSL report and the

testimony of Doctor, has found the charge proved beyond all

shadow of doubts and accordingly, convicted the appellant,

which according to our considered view, cannot be said to suffer

from an error.

23. In the result, the instant appeal fails and is dismissed.

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24. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

             I Agree                 (Sujit Narayan Prasad, J.)



      (Subhash Chand, J.)              (Subhash Chand, J.)

High Court of Jharkhand, Ranchi
Dated: 18th July, 2023.
   Rohit/-A.F.R.