Kerala High Court
K.B.Ali vs State Of Kerala on 25 February, 2019
Equivalent citations: AIRONLINE 2019 KER 1063
Bench: A.M.Shaffique, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940
CRL.A.No. 794 of 2014
AGAINST THE JUDGMENT IN SC 282/2011 of ADDITIONAL SESSIONS
COURT-IV,ERNAKULAM DATED 19-06-2014
APPELLANT/ACCUSED:
K.B.ALI
AGED 54 YEARS
S/O.BEERAN KUNJU, KADVILANVEEDU,
SREEBOOTHAPURAM, THEKKUMBHAGAM VILLAGE.
BY ADV. SRI.E.C.POULOSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY ADV. PP-SRI.K.B.UDAYAKUMAR (SENIOR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.02.2019, THE COURT ON 25.2.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.794/2014
-:2:-
"C.R."
JUDGMENT
Shaffique, J.
Appeal under consideration has been preferred by the appellant, who is the sole accused in S.C.No. 282 of 2011 challenging the verdict of the 4th Additional Sessions Judge, Ernakulam in the said case dated 19/06/2014 by which he was found guilty for offences under Section 302 and Section 323 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for three years for offence under Section 302 of I.P.C. and further to undergo rigorous imprisonment for one year and to pay a fine of `1,000/- (Rupees One Thousand only) with one month rigorous imprisonment on default to pay the fine amount for offence under Section 323 of I.P.C. Substantive sentences were directed to run concurrently. Fine amount, if realized, was directed to be paid to PW2 as compensation under Section 357(1) of the Code of Criminal Procedure, 1973 (for Crl.Appeal No.794/2014 -:3:- brevity 'Cr.P.C.').
2. Prosecution case is that, on 14/02/2008, at about 08.45 A.M., the appellant murdered Hairunnisa @ Nissa, W/o Kadavilan Veettil Jabbar by stabbing her with a knife. During the commission of the same, he had voluntarily caused hurt to Ashna @ Surumi, who is the daughter of the victim. The incident took place at the northern end of Koovappadam-Mathruchaya Junction MLA Road.
3. Prosecution examined PW1 to PW25 as witnesses, produced and marked documents Exts.P1 to P27 and identified MO1 to MO24 objects. During 313 examination, the appellant denied all incriminating circumstances levelled against him and he pleaded innocence. No evidence was let in by the defence. They marked Exts.D1 to D5 contradictions while examining prosecution witnesses.
4. Learned counsel appearing for and on behalf of the appellant Smt.C.Bobby Raphael argued that there is no credible legal evidence against the appellant. Court below relied on the deposition of a child witness and that too a highly interested witness, the daughter of the deceased (PW2). The evidence of Crl.Appeal No.794/2014 -:4:- PW2 is full of omissions and contradictions and it could not be relied on. She did not witness the incident. She is tutored by the police to falsely implicate the appellant herein. There are serious investigation and procedural lapses. No oath was administered to the witness while recording statement under Section 164 of the Cr.P.C. S.157 of the Cr.P.C is not complied with. The incident allegedly occurred in an open place accessible to anybody. The appellant/accused was not medically examined. Prosecution did not even cite key independent witnesses who could give clarity to the actual occurrence. The alleged incriminating articles do not belong to the appellant nor he has any connection with any of them. Motive for the crime is not proved by the prosecution. According to her, the Court below committed serious mistake in holding the appellant guilty for grave crime like murder without the back up of any convincing evidence. She pleaded for an acquittal.
5. On the other hand, learned Senior Government Pleader Sri.K.B.Udayakumar contended that prosecution proved the case against the appellant beyond reasonable doubt and the Court below is justified in arriving at its conclusion. PW2 is the daughter Crl.Appeal No.794/2014 -:5:- of the deceased. She is an injured eyewitness. She deposed the overt acts done by the appellant herein in unequivocal terms. Her evidence is reliable and credible. Medical evidence, recovery evidence and forensic evidence corroborate the ocular version completely. All materials available unerringly point to the guilt of the appellant alone. He murdered the wife of his own brother in front of her daughter. The act was so cruel that the head of Hairunnisa was almost severed. Court below is completely justified in arriving at its conclusion and hence no interference is called for by this Court, he pleaded.
6. Evidence adduced in this case, in brief, are as follows:-
PW1 Hassanul Basari gave Ext.P1 FIS within one hour of the incident to PW18 the S.I. of Police, Kalady Police Station. PW2 is the daughter of the deceased. She is an injured eyewitness. She detailed the incident. During examination-in-chief, she identified MO1 chopper and MO2 to MO3 as shirt and dhothi worn by the appellant at the time of incident. But during cross examination, she deposed that MO1 was not shown to her by police and she is seeing the same for the first time in Court. So also MO2 and MO3. PW3 turned hostile to the prosecution. She admitted the factum Crl.Appeal No.794/2014 -:6:- of death and the presence of PW2 at the place of occurrence at the relevant time. PW4 turned hostile to the prosecution. PW5 is an attestor to Ext.P4 inquest report. PW6 is the then Village Officer, Chowara Village. He issued Ext.P5 scene plan. PW7 is a neighbour who rushed to the spot soon after the incident and found the victim lying in a pool of blood and PW2 near her injured mother crying with injury on her head. PW8 is another neighbour who reached the spot and had taken the victim to hospital. It is his version that he heard PW2 telling that it was the appellant who inflicted injuries on her mother (the deceased herein). He also identified MO4 series chappals as that of the appellant. PW9 is an attestor to Ext.P6 scene mahazar. PW10 is an attestor to Ext.P7 seizure mahazar prepared at the time of taking into custody the motor cycle. PW11 is an attestor to Ext.P8 seizure mahazar prepared at the time when two sealed packets were collected by the Doctor from the body of the deceased during the time of conducting post-mortem. PW12 is an attestor for the seizure mahazar prepared at the time when the sale agreement of the motor cycle PW14 and PW19 was seized. PW13 is an attestor to Ext.P10 seizure mahazar for the seizure of sale Crl.Appeal No.794/2014 -:7:- agreement of the motor cycle between PW13 and PW14. PW14 proved Exts.P11 and P12 agreements of sale of the motor vehicle on which the appellant was travelling at the time of commission of offence. PW15 is a neighbour of both the appellant and the deceased. He deposed that on the date of incident, near to the alleged time of occurrence, he saw the deceased and PW2 together at the place of occurrence. PW16 is the Doctor who treated PW2 in L.F. Hospital, Angamaly. He issued Ext.P14 wound certificate. According to him, the victim told him the alleged history as attack from her 'Muthaappa' (elder brother of her father). PW17 is the Doctor who conducted the autopsy and issued Ext.P15 post-mortem certificate of the deceased. She deposed that the cause of death was injuries sustained to the neck and head. She also noted that a foetus of eight centimeter was found in her uterus. The injuries noted by her are possible using MO1 weapon. PW18 registered Ext.P1(a) FIR based on Ext.P1 FIS given by PW1. PW19 was examined to mark Exts.P10 and P11 documents. PW20 is an attestor to Ext.P16 seizure mahazar for the RC and other particulars of the motor bike. PW21 is the father of the deceased. He deposed that the appellant had Crl.Appeal No.794/2014 -:8:- told him that he should restrain the deceased from calling the girl children of the appellant as 'children of black Arabian'. PW22 is an attestor to Ext.P17 recovery mahazar of MO1 to MO3, chopper, shirt and dhothi of the appellant. PW23 is the then Judicial Magistrate who recorded the 164 statements of witnesses. Exts.P18 and P19 are those statements. PW24 is the Scientific Assistant who collected blood samples and all from the scene of occurrence. PW25 is the Circle Inspector of Police, Chengamanad who conducted the investigation. He questioned the witnesses, prepared inquest report, scene mahazar, arrested the appellant on his surrender and completed the investigation and laid charge- sheet before Court.
7. Court below inter alia, relied on the evidence of PW2 to arrive at its finding. The question to be determined is whether the Court below is justified in arriving at its conclusion of finding the appellant herein guilty under Sections 302 and 323 of I.P.C. and sentencing as mentioned above. It is necessary to look into the deposition of key witnesses in detail to appreciate the evidence properly.
8. There is no quarrel about the fact that the death of Crl.Appeal No.794/2014 -:9:- Hairunnisa @ Nissa was a homicide. Ext.P4 is the inquest report. Witnesses including PW2 daughter specifically deposed that the deceased herein was Hairunnisa. PW17 is the Doctor who conducted the autopsy on the corpse of the deceased. She issued Ext.P15 post-mortem certificate. She deposed that the following ante-mortem injuries were noted by her on the body of the victim:-
"1. Incised wound 12x7x5 cm horizontal on the front of neck, 3 cm below the tip of chin and 9 cm above the top of breast bone. All soft tissues on the front and both sides of neck including muscles, blood vessels and nerves, air passages along the level of thyroid cartilage 0.8 cm below its upper margin (below the level of vocal cords). Oesophagus and body of third cervical vertebra (1cm deep) were found cleanly cut and separated.
2. Incised wound 12x9x10 cm, obliquely placed on the lower part of back of head and neck in the middle 7 cm above root of neck with its lower right end 5cm below right mastoid process. Its lower margin showed bevelling. The muscle and spine of the 3rd cervical vertebra underneath seen cleanly cut. It was directed forwards and downwards.
3. Incised wound 6x3x5 cm obliquely placed on right side of back of head and neck 2 cm below injury No.2 with its lower right end 7 cm below right mastoid process.
4. Incised wound 7x2x2 cm obliquely placed on the back of neck, its upper left end 7 cm below and 2 cm behind left mastoid process.Crl.Appeal No.794/2014
-:10:-
Brain (1250 gm) was pale with flattening of gyri and narrowing of sulci.
5. Incised wound 6x1x1.5 cm obliquely placed on left side of back of neck 1.5 cm below injury No.4 parallel to it with a superficial incised wound 12cm long extending obliquely down to right side of back of chest from its lower right end.
6. Incised wound 7x0.1x0.2 cm obliquely placed on right side of back of chest, its upper inner end 3 cm below injury No.5 and 4 cm below root of neck.
7. Incised wound 5x1x2 cm vertical on right side of back of chest. 9 cm below top of shoulder and 9 cm outer to midline.
8. Incised wound 3.5x0.1x0.1 cm obliquely placed on the back of chest, its upper outer end 9 cm to left of midline and 3 cm below top of shoulder.
9. Incised wound 2.5x0.5x1 cm horizontal on the back of chest 2 cm to right of midline.
10. Incised wound 1.5x0.5x0.5 cm on the back of right shoulder 2 cm outer to injury No.9.
11. Incised wound 3x0.5x0.3 cm obliquely placed on the back of right shoulder, its upper inner end 10 cm to right of midline and 2 cm below top of shoulder.
12. Incised wound 4.5x3x1 cm on the front of right arm 10 cm below the top of shoulder.
13. Incised wound 1.5x1x0.5 cm on the front of right arm 0.5 cm outer to injury No.12
14. Incised wound 9x3x3 cm obliquely placed on the back of right hand its upper outer end 5 cm below wrist. The second and third metacarpals underneath seen cleanly cut.
Crl.Appeal No.794/2014-:11:-
15. Incised wound 2x1x1 cm obliquely placed on the back of right little finger its upper outer end 3 cm below root of little finger and is inline with injury No.14. The bone underneath seen cut for a depth of 0.5 cm.
16. Abrasion 2x1 cm on the outer aspect of left ankle.
17. Abrasion 1x0.5 cm on the front of left knee.
18. Abrasion 2x1 cm on the back of left elbow."
9. According to her, the cause of death was injuries sustained to the neck and head. She also deposed that the deceased was carrying and noticed a foetus of 8 centimeter length. MO1 could cause the injuries noted on the body of the victim. Injury no.1 is necessarily fatal. Injuries 2 to 4 collectively or independently are sufficient to cause death. All these show that the death was the result of a brutal attack on the victim. Court below was absolutely right in concluding that the death of Hairunnisa was a homicide.
10. The other question is whether the appellant is the one who caused the death of the victim and caused injury to PW2 as alleged by the prosecution.
11. Vadivelu Thevar v. The State Of Madras (AIR 1957 SC 614) is a landmark judgment of the Apex Court on reliability of sole eyewitness in appreciation of evidence. The Supreme Court Crl.Appeal No.794/2014 -:12:- held that:-
"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, Crl.Appeal No.794/2014 -:13:- that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S.134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a Crl.Appeal No.794/2014 -:14:- considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. Crl.Appeal No.794/2014 -:15:- The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution".
12. In the case at hand, we have a sole eyewitness that too a child witness. As laid down in Vadivelu Thevar (supra.), it is at the discretion of the Court whether to look for some corroboration in case of sole eyewitness. It is not a necessity. The decision of the Privy Council in Mohammed Sugal Esa v. King (AIR 1946 PC 3) assumes relevance here. The principle laid down in Sugal's case (supra) is squarely applicable to the case at hand. In this case, the accused was convicted for murder on the basis of the uncorroborated testimony of a child witness, the sole eye-witness, a girl of 10-11 years. Argument before the Privy Council by the appellant was that conviction could not be based Crl.Appeal No.794/2014 -:16:- on such uncorroborated testimony. The Highest Court of Appeal held that in India there was, unlike England, no provision that such a testimony was inadmissible. Once there was admissible evidence, a Court could act upon it. Corroboration, unless required by statute, went 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.
13. Keeping the above principles in mind, let us look into the evidence in detail.
14. PW2 is the star witness of the prosecution. She is none else but the daughter of the deceased. At the time of the incident she was only 11 years old. She deposed that she was studying in 7th standard at St.Joseph's School, Kanjoor during that time. At the time of examining PW2 in Court, she was a major of 18 years. She deposed that she witnessed the incident in which her mother died. It was on 14/02/2008 at about 08.30-08.45 A.M. Her mother and herself were waiting for the school bus. The appellant herein came in a motor bike and he alighted from it and kicked her Crl.Appeal No.794/2014 -:17:- mother on the abdomen due to which she fell down. The appellant went back near to the bike and took a chopper and cut at the neck of her mother who was lying on the road. The appellant pushed PW2 aside and she sustained injuries on her head. It is her version that the appellant inflicted injuries on her mother many times. She cried aloud. The appellant got into the bike with chopper and left the place. This is the crux of the evidence of PW2.
15. As already detailed, it is well settled that in appreciation of evidence of witnesses, it is not the number of witnesses that counts but the quality of their evidence. Evidence of sole eyewitness can be relied on to arrive at a conclusion regarding the guilt of the accused. In the case at hand, the sole eyewitness is a child witness aged 11 years at the time of incident. It is also seen that there are some discrepancies and embellishments in the evidence of this child witness though not so material. It compels our prudence to seek some corroboration for her testimony. PW1 deposed that he had heard the cry of some women from the spot and as he rushed to the spot he had seen PW2 with injuries on her head with Hairunnisa. In Ext.P1 FIS Crl.Appeal No.794/2014 -:18:- given by PW1 at 10.00 A.M. on the same day, he gave statement to the same effect. Ext.P1 FIS which is a signed statement of PW1 corroborates his evidence before Court that he found the victim and PW2 together at the place of occurrence with PW2 having an injury on her head. PW7 is a neighbour who rushed to the spot soon after the incident and found the victim lying in a pool of blood and PW2 near her injured mother crying with injury on her head. PW8 is another neighbour who reached the spot and had taken the victim to hospital. It is his version that he heard PW2 telling that it was the appellant who inflicted injuries on her mother (the deceased herein). Though turned hostile, PW3 also deposed that PW2 was present at the spot when she found the deceased lying with injuries on the road. Another vital evidence which probabilize the presence of PW2 at the time of occurrence is the evidence adduced by PW16. PW16 is the Doctor who treated PW2 in L.F. Hospital, Angamaly. He issued Ext.P14 wound certificate which was prepared at 09.20 A.M i.e., within half an hour of the incident. According to him, PW2 told him the alleged history as attack from her 'Muthaappa' (elder brother of her father). All these evidence guarantees the presence of PW2 at the Crl.Appeal No.794/2014 -:19:- place of occurrence at the time of incident and that we are inclined to believe that PW2 who is the daughter of the victim had witnessed the incident as stated by her. According to her, the appellant came in a motor cycle and he kicked on the abdomen of Hairunnisa. She fell down. The appellant went back to the motor bike and took a chopper from the said bike and with the same chopper inflicted cut injuries on the victim while she was still lying. PW2 stated that the appellant pushed her aside and she sustained injury to her head. She cried aloud. After chopping the victim to the extent of almost severing her head from the body, the appellant along with the chopper left the place in the motor cycle. According to her, herself and her mother were taken to Vimala Hospital, Kanjoor and then to Little Flower Hospital, Angamaly by people including witnesses. In the hospital, her mother was declared dead. She deposed that she had given statement to police and also to the Magistrate. Of course, as stated already, there are certain omissions and embellishments in her evidence. But on analysing the evidence as a whole, her statement that the appellant had cut her mother with a chopper at the neck is clear and categoric. Evidence of PW17 Doctor who Crl.Appeal No.794/2014 -:20:- issued Ext.P15 post-mortem certificate shows that injury no.1 was fatal and that it was inflicted while the victim was in a lying position. Medical evidence corroborates the testimony of PW2 in that aspect also. MO1 chopper was recovered at the instance of the appellant and it was blood-stained. The appellant has surrendered before the police at 11.00 A.M. on the same day which is relevant as his subsequent conduct. The omissions pointed out by the defence are not so material and in our view, no way affects the veracity and credibility of PW2. Possibility of subsequent tutoring cannot be raised in this case as other witnesses gathered at the spot and the evidence of Doctor who examined PW2 at Angamaly hospital within half an hour clearly deposed that PW2 had told them that it was the appellant (She stated as 'Muthaappa'), who caused injuries to her and to her mother. 'A' group blood was found in the motor bike in which the appellant had travelled and lunki worn by the appellant. Blood group of the deceased also is 'A' group. MO4 series chappals belonging to the appellant was seized from the place of occurrence. The school bag of PW2 was also seized from the place of occurrence. Under such circumstances, we are of the Crl.Appeal No.794/2014 -:21:- view that the Court below was justified in believing the version of PW2 and finding the appellant herein as the culprit who inflicted fatal injuries on the deceased and the one who caused hurt to PW2.
16. Learned counsel for the appellant submitted that PW2 in her 164 statement had deposed that there were other eyewitnesses to the incident and they were not cited as witnesses by the prosecution. As far as examination of witnesses is concerned, there is no hard and fast rule that all occurrence witnesses have to be examined. Of course, the incident happened in broad day light and was in a road near a ration shop. But nothing is on record to show that apart from Sahid and Sakkir who were specifically named by PW2 in her 164 statement, any other person had witnessed the incident. It can be seen that both those boys were school children. In the circumstances of the case, we do not find that non-examination of these child witnesses amounts to a serious lapse on the part of the prosecution.
17. Learned counsel also argued that no oath was administered to the witnesses at the time of taking 164 Crl.Appeal No.794/2014 -:22:- statements by the learned Magistrate and no signature was also taken.
18. Section 164 (1) and (5) of the Cr.P.C which are relevant reads as under:-
"164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that any confession or statement made under this sub- section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence;
Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. xxxx (5) Any statement (other than a confession) made under sub-
section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded."
19. It is settled law that even a statement recorded by the Magistrate in terms of S.164(5) can only be used for the purpose Crl.Appeal No.794/2014 -:23:- of contradiction. The statement recorded u/s 164(5) cannot have any validity as such and cannot be treated as evidence before a Court. It has the same characteristic of a statement recorded by the police u/s 161 and can be utilized only for the purpose as provided in the proviso to S.162 r/w S.145 of the Indian Evidence Act, 1872. Therefore, no prejudice will be caused to the accused even if there is any irregularity in recording the statement u/s 164 by the learned Magistrate. In the case on hand, the argument is with reference to statement given by PW2, a child witness to the Magistrate u/s 164 of Cr.P.C.
20. Administration of oath or swearing of witnesses is contemplated under Rule 49 of the Criminal Rules of Practice, Kerala 1982. Rule 49 reads as under:-
"49. Swearing in of witnesses- Subject to the provisions of the Oaths Act, 1969 (Central Act 44 of 1969), every witness and every interpreter shall take an oath or make an affirmation before he is examined or called upon to interpret."
21. Rule 55 relates to examining witnesses under disability, which reads as under:-
"55. Witnesses under disability:- Where the witness appears to be under a disability, the Court may hold a Crl.Appeal No.794/2014 -:24:- preliminary enquiry as to his competency to give evidence."
22. Section 4 of the Oaths Act, 1969 deals with the subject. S.4 (1) (a) and the proviso reads as under:-
"4. Oaths or affirmations to be made by witnesses, interpreters and jurors.-- (1) Oaths or affirmations shall be made by the following persons, namely:--
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b)xxxx
(c)xxx Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness;
but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth." Therefore, if a witness is a child under 12 years of age, if the child does not understand the nature of an oath or affirmation, the provisions of the Act shall not apply to the said witness. However, it is clearly stated that even in the absence of oath or affirmation, it shall not render inadmissible any evidence given Crl.Appeal No.794/2014 -:25:- by such witness and it will not affect the obligation of the witness to state the truth. S.7 further clarifies the position that even omission to take any oath or make any affirmation will not render inadmissible any evidence. S.7 reads as under:-
"7. Proceedings and evidence not invalidated by omission of oath or irregularity.-- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.
23. In the light of the aforesaid discussion, the contention of the appellant about the irregularity in recording 164 statement has no basis and will not render inadmissible the evidence before Court.
24. Learned counsel argued further that if at all the appellant is found guilty by this Court, the case of the appellant would not fall under Section 302 of IPC. According to her, there is no proof for motive nor for premeditation. The appellant had no criminal antecedents. No DNA evidence is available to conclude Crl.Appeal No.794/2014 -:26:- the involvement of the appellant to the crime. The appellant is having wife and two girl children. He is aged 50 at the time of occurrence. He had already undergone seven years of imprisonment. She pleaded that prosecution case could not even go beyond offence under Section 304 of IPC. She pleaded for leniency.
25. But we do not think that the facts and evidence available support the arguments of the counsel. This is a case in which a young pregnant lady was killed in public in the broad day light that too in the presence of her own minor daughter. The neck was almost severed. Altogether 18 ante-mortem injuries were noted by PW17 on the corpse of the victim. The innocent victim was completely silenced and butchered, that too by the elder brother of her husband. The trauma PW2 had and probably might be having even now is beyond comprehension. Evidence shows that he was having MO1 chopper with him in the motor bike and that he had kicked the deceased at her abdomen and thereafter he had taken the chopper and inflicted fatal injuries indiscriminately on the hapless woman. Evidence of PW17 shows that she was pregnant and the foetus was having 8 centimeter Crl.Appeal No.794/2014 -:27:- size. It is also proved that the appellant voluntarily caused hurt to PW2 during the process. We are convinced that PW2's evidence is credible and it inspires full confidence. Other evidence available fully corroborate her testimony. Devilish act of appellant cannot be anything else, but offence under Section 302 of I.P.C. No interference is called for.
In the result, appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
SHIRCY V.
Rp //True Copy// JUDGE
PS to Judge