Allahabad High Court
Sompal vs State Of U.P. on 24 April, 2019
Equivalent citations: AIRONLINE 2019 ALL 686
Bench: Sudhir Agarwal, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Reserved on : 12.12.2018 Delivered on : 24.04.2019 Court No. - 34 Case :- JAIL APPEAL No. - 1366 of 2013 Appellant :- Sompal Respondent :- State Of U.P. Counsel for Appellant :- From Jail, Rajshree Malviya Counsel for Respondent :- A.G.A., Syed Ali Murtaza Hon'ble Sudhir Agarwal, J.
Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble Virendra Kumar Srivastava, J.)
1. This appeal under Section 383 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), has been filed by convict-appellant Sompal, through District Legal Services Authority by Senior Superintendent of Jail, Pilibhit, against judgment of conviction and sentence dated 24.12.2012 passed by Court of Additional Sessions Judge, Court No.2, Pilibhit in Sessions Trial No.332 of 2011 under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as "IPC") in Case Crime No.412 of 2011, P.S.Barkhera, District-Pilibhit whereby appellant Sompal has been convicted for offences under Section 302 IPC and has been sentenced with life imprisonment, alongwith fine of Rs.20,000/- for aforesaid offence and in case of default of payment of fine, he has been directed to undergo further rigorous imprisonment of six months.
2. The prosecution case, in brief, is that deceased Ram Prasad and accused-appellant Sompal are real brother whereas Akash Singh (PW-3) is son of deceased Ram Prasad. Jhhamman Lal (PW-1) is their neighbour. All of them are residents of village-Jyoraha Kalyanpur, P.S.Barkhera, District-Pilibhit. On 18.03.2011 at about 1.15 P.M., deceased Ram Prasad and his brother appellant Sompal were present at their house. PW-3 Akash, aged about 7 years and his sister Kumari Neetu aged about 14 years were also present there. It was the day of Holi festival. Deceased Ram Prasad asked appellant Sompal to clean the house by applying cow dung. As such, a dispute arose between them and aggrieved by said command of his brother, accused-appellant Sompal gave several blows of Gandasa (sharp edged cutting weapon) on vital part of Ram Prasad's body including his neck and caused his death. Akash (PW-3) and his sister went crying to Jhhamman Lal (PW-1) and narrated the occurrence and also said that appellant Sompal is present at the spot with Gandasa (weapon used in offence). On said information, Jhhamman Lal rushed to place of occurrence and found that Sompal was present there with Gandasa and many villagers have also gathered there. Jhhamman Lal (PW-1), Akash (PW-3) and his sister Kumari Neetu went to P.S.Barkhera and gave written information, Exhibit Ka 1 of incident written at his dictation by one Tomar Master Saheb (Teacher) at 13.50 P.M., whereupon First Information Report (hereinafter referred to as "FIR") was lodged, Chik Report (Exhibit Ka 3) was prepared and information was entered in General Diary report (Exhibit Ka 4) by Constable Clerk Rampal Singh (PW-4) and Case Crime No.412 of 2011 under Section 302 IPC against appellant Sompal was registered.
3. After registration of FIR, investigation of case was enstrusted to S.I. Ram Awadh Singh (PW-6), who swung into action, obtained necessary documents i.e. Chik Report, copies of entries in G.D. and proceeded to place of occurrence. He recorded statement of Jhhamman Lal (PW-1) and inspected the place of occurrence at the instance of PW-1 and prepared Site plan (Exhibit Ka 15) and also recorded statements of Akash (PW-3) and his sister Kumari Neetu. S. I. Rajesh Kumar Saxena (PW-5) in supervision of PW-6 Ram Awadh Singh (Investigating Officer) prepared inquest report of corpse of deceased Ram Prasad and other relevant papers. After carrying out necessary formalities, corpse of deceased Ram Prasad was sent to mortuary for autopsy along with letter issued to Chief Medical Officer, Pilibhit escorted by Constables Sudhir Singh and Rajendra Pal.
4. Post mortem examination over dead body of deceased Ram Prasad was conducted by PW-2 Dr. B. Das on 19.03.2011 at 3.00 PM. He found that deceased was about 35 years of age having average built body and about one day had passed since his death. Rigor mortis was present in all limbs. No signs of decomposition was found. He found following ante mortem injuries :-
(i). Cut throat 15 cm x 6 cm from thyroid region to suprasternal notch, margins are contused; all blood vessels, oesophagus muscle, trachea, larynx are cut, clotted blood present. The neck is hanging and attached with posterior muscular tissue.
(ii) Incised wound 2 cm x 1 cm x muscle deep on left shoulder.
(iii) Incised wound 3 cm x 1 cm x muscle deep on left forearm.
5. On internal examination, it was found by him that both chambers of heart were empty; stomach contained 300 ml digested dal and chawal. According to PW-2, death of deceased was caused by shock and excessive haemorrhage due to ante mortem injury and he has proved Post Mortem Examination Report as Exhibit Ka 2 prepared by him at the time of post mortem examination.
6. During investigation samples of blood stained and simple earth, blood stained pant and shirt wore by accused-appellant Sompal were taken and accused-appellant Sompal was arrested and taken into custody. Blood stained Gandasa (weapon used in offence) was recovered from Verandah of his house i.e. place of occurrence. Its recovery memo Exhibit Ka 7 was also prepared.
7. Recovered incriminating articles, blood stained and plain earth, blood stained Gandasa and clothes worn by accused-appellant were sent for chemical examination to Forensic Science Laboratory, Mahanagar, Lucknow. Statements of witnesses and accused-appellant Sompal were recorded. Due to transfer of S.I. Ram Awadh Singh (PW-6), investigation was transferred and entrusted to S.I. Arvind Kumar Pandey (PW-7) who perused the relevant documents prepared and statements recorded by previous Investigating Officer and recorded statement of Constable Rajendra Pal. PW-7-S.I. Arvind Kumar Pandey after collecting credible and incriminating evidence showing complicity of accused-appellant Sompal submitted charge sheet (Exhibit Ka 16) under Section 302 IPC before competent Magistrate, who took cognizance of offence on 09.06.2011 and after providing copies of necessary documents as required under Section 207 Cr.P.C., committed the case to Court of Sessions on 19.07.2011, as it was exclusively triable by Court of Sessions. After being committed to Court of Sessions, case was registered as Sessions Trial No.332 of 2011 and transferred to Court of Additional Sessions Judge, Court no.2, Pilibhit, who after hearing prosecution as well as defence framed charge against accused-appellant Sompal on 12.09.2011, which reads as under :-
"मैं लियाक़त अली, अपर सत्र न्यायाधीश, कोर्ट न.२, पीलीभीत आप सोमपाल को निम्न आरोप से आरोपित करता हूँ :-
यह कि आपने दिनांक १८.३.२०११ को समय १.१५ बजे दिन बेहद ग्राम ज्योराहा कल्याणपुर अंतर्गत थाना बरखोड़ा जिला पीलीभीत में स्वेच्छा से राम प्रसाद कि गड़ासा से काटकर हत्या कर दी इस प्रकार आपने हत्या का अपराध किया जो धारा ३०२ भा. द.सं. के अंतर्गत दंडनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है एतद्द्वारा आपको निर्देश दिया जाता है कि उक्त आरोप में आपका परीक्षण इस न्यायालय द्वारा किया जायेगा ।"
"I, Liyakat Ali, Additional Sessions Judge, Court no.2, Pilibhit charge you Sompal as follows :-
that on 18.03.2011 at about 1.15 PM you voluntarily killed Ram Prasad with Gandasa at village-Jyoraha Kalyanpur, within P.S.Barkheda, District-Pilibhit. In this way, you committed offence of murder which is a punishable offence under Section 302 IPC and within cognizance of this Court.
I, hereby, direct you to be tried for aforesaid charge."
(English Translation by Court)
8. Charge was read over and explained to accused, who pleaded not guilty and claimed for trial.
9. To prove its case, prosecution has examined in all seven witnesses, out of whom PW-1, Informant Jhhamman Lal and PW-3 Akash Singh are witnesses of fact. Rest are formal witnesses. PW-2 is Dr. Bhagwan Das, who conducted post mortem examination and proved its report Exhibit Ka 2. PW-4, Constable Ram Pal Singh is scribe of Chik Report and entry of crime in General Diary. He has proved Chik Report, Exhibit Ka 3 and copy of General Diary, Exhibit ka 4. PW-5 is S. I. Rajesh Kumar Saxena, who has prepared the Inquest Report and has proved recovery memos in respect of simple and blood stained soil (Exhibit ka 5); pant and shirt of deceased (Exhibit ka 6) and blood stained Gandasa (Exhibit ka 7). He has also proved Inquest Report, Challan Nash, Photo Nash, Specimen Seal, Letter to Regional Inspector and Letter to Chief Medical Officer making request for post mortem examination from Exhibits ka 8 to 12. He has proved material exhibits 1 to 6 spade, blood stained clothes, soil and plain soil also. PW-6 S. O. Ram Awadh Singh is first Investigating Officer and he has arrested accused Sompal. He has prepared and proved Site Plan (Exhibit ka 15). PW-7 S. I. Arvind Kumar Pandey is second Investigating Officer who has submitted charge sheet Exhibit Ka 16 and proved the same.
10. After closure of prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he has stated that he has been falsely implicated. Charge sheet has wrongly been submitted against him. He took a defence that his deceased brother used to keep his earnings with Mukaddam of village, who was getting agricultural work done on their land on apportionment basis (batai). Due to inimical terms, Mukkadam has falsely implicated him and he has not killed his brother. No evidence in defence was adduced by accused-appellant.
11. After hearing counsel for parties and going through entire evidence available on record, Trial Court finding charge against accused Sompal under Section 302 IPC proved, convicted and sentenced him for aforesaid charges as mentioned above. Being aggrieved by aforesaid judgment and order of his conviction and sentence, accused-appellant has come to this Court in this appeal.
12. Heard Sri Rajshree Malviya, learned Amicus Curiae appearing on behalf of appellant and Sri Syed Ali Murtaza, learned Additional Government Advocate for State.
13. Learned Amicus Curiae appearing for accused-appellant has submitted that accused-appellant is innocent. FIR is ante timed and was prepared with due deliberations and consultation with police personnel. Accused-appellant had already been arrested prior to lodging of FIR. Prosecution case is based on sole testimony of child witness, Akash (PW-3) of very tender age, who is son of deceased Ram Prasad. Serologist is also not produced. There are material contradictions in the statements of prosecution witnesses. Accused-appellant was in drunken state at the time of alleged occurrence. He had no motive to cause the death of his brother. According to prosecution, occurrence was happened inside the house of deceased where PW-3 Akash and his sister Kumari Neetu were present. Kumari Neetu was not examined by prosecution and only, PW-3 Akash has been examined. Prosecution has failed to prove its case beyond reasonable doubt. Judgment and order of learned Trial Court is per se illegal, erroneous and liable to be set aside, allowing this appeal.
14. Per contra, learned A.G.A. has submitted that in this case accused-appellant is real uncle of sole eye-witness Akash Singh (PW-3) as well as real brother of deceased Ram Prasad. Presence of sole eye witness on the spot at the time of occurrence is quite natural. Statement of PW-3, Akash Singh is reliable and trustworthy. His statement cannot be discarded only on the ground of child witness. No objection was filed by accused-appellant before Trial Court at the time of filing of Serologist's report. There is no delay in lodging the FIR. It is not ante timed. Evidence of prosecution witnesses is reliable and trustworthy. Ocular evidence is fully supported by medical evidence. There is no illegality, infirmity or perversity in impugned judgment and order, hence, this appeal is liable to be dismissed.
15. We have considered rival submissions of learned counsel for parties and have gone through the entire record.
16. The crucial point which arises for consideration in this appeal is, whether prosecution has been able to prove its case against accused-appellant beyond all reasonable doubt.
17. Jhhamman Lal (PW-1) has stated that accused-appellant Sompal is resident of his village. On 18.03.2011 he was at his house. On that day at about 1.15 P.M. (सवा बजे ) Kumari Nitu and his brother Akash Singh (PW-3) both daughter and son of Ram Prasad (deceased) respectively came weeping to him (PW-1) and told that his uncle, accused-appellant Sompal had killed their father Ram Prasad by chopping his head with Gandasa and was sitting with Gandasa at the place of occurrence. Thereupon he rushed to the place of occurrence and saw that accused-appellant Sompal was sitting on the spot with Gandasa at the place of occurrence and crowd was present there. He has further stated that thereafter he went to police station where one Tomar (Master Sahab) met him. He narrated whole occurrence to him and got the report written who read it out to him and after satisfying himself that whatever was narrated to him was written in the report (Tehrir i.e. Exhibit Ka 1), he put his signature on it and proved Tehrir i.e. Exhibit Ka 1. In cross-examination he said that he belongs to Gangwar by caste. His residence is at a distance of 150-200 yards from house of deceased Ram Prasad and there are no houses in between their houses. He has admitted that there are two houses in front of deceased Ram Prasad's house. He has further stated that he had not reached the place of occurrence on hue and cry but went there as the children (PW-3 Akash and Kumari Neetu) came to him. According to him when he reached the place of occurrence, no police personnel were present there. According to him, house of one Bhajan Lal is situated in front of deceased Ram Prasad's house whereas house of one Bharat Singh is situated behind it, but the person residing in these houses were not present at the place of occurrence. He further stated that he had seen the occurrence and accused-appellant Sompal was sitting at the place of occurrence and he remained there till police came. According to him, police did not take accused-appellant Sompal into custody in front of him. He went to Police Station Barkheda with children of deceased Ram Prasad for lodging FIR. Stating that he got FIR written outside the police station by one Tomar (Master Sahab). He has further stated that he did not know whether Tomar Sahab had signed on it or not but he read over the Tehrir (Exhibit Ka 1) to him. He reached Barkheda at 1.13 P.M. and it took around one or two minutes in writing the Tehrir. He has further stated that police had brought Sompal in front of him but he had got FIR written prior to police brought Sompal to police station in custody. According to him when he reached police station, PW-4 Constable Ram Pal Singh had not directed him for preparation of Tehrir (Exhibit Ka 1) but he got written it before him. According to him both the brothers accused-appellant Sompal and deceased Ram Prasad used to perform farming together and had cordial relation with each other. They never quarrelled with each other. This witness has denied the suggestion put by defence counsel that accused-appellant Sompal was wrongly planted by him in order to grab his land whereas deceased Ram Prasad would have been killed by other person. He has further denied the another suggestion put by defence counsel that he was giving false statement due to alliance with children of deceased Ram Prasad.
18. Prosecution has examined Akash Singh, aged about 5 years old (though as per FIR his age was more than 7 years at the time of occurrence), on 21.01.2012 as PW-3 who is son of deceased Ram Prasad. Since this witness was of tender age, learned Trial Court before his examination asked some preliminary questions in order to testify his competency as to whether he was able to give rational answer to questions put to him during his examination and after satisfaction that he was competent to give evidence, learned Trial Court permitted him to give his evidence on oath. He has stated that said incident had taken place around 10 months ago when his father had died. It was the day of festival of Holi. The incident took place at noon and at the time of occurrence he and his sister Nitu were present at their home. His uncle Sri Sompal (accused-appellant) and his father (deceased) were also present at home. He has further stated that prior to the occurrence there ensued dispute between his father and his uncle Sompal, accused-appellant, on the point of dabbing cow dung (गोबर लीपने ) and on account of this dispute his uncle Sompal slit the throat of his father completely with spade (Gandasa). Only a bit of skin was attached therewith. He has further stated that he and his sister saw accused-appellant Sompal assaulting his father with chopper. He made hue and cry and informed his neighbourer Jhhamman Lal (PW-1) about the occurrence then PW-1 and so many other villagers reached at the place of occurrence i.e. his house then he and his sister Nitu went to police station with Jhhamman Lal (PW-1) who got an application written by one Master Tomar, put his signature, gave it to police station and lodged the FIR. He has further stated that police had recorded his statement and he narrated the entire incident to police.
19. Prosecution has examined Dr. B. Das as PW-2. He has stated that on 19.03.2011 he was posted at District Hospital, Pilibhit. On that day he conducted post mortem examination on corpse of deceased Ram Prasad, aged about 35 years son of Loki Ram, resident of village-Jyorah Kalyanpur, P.S. Barkheda, District-Pilibhit. Dead body of deceased was brought in sealed condition with relevant police papers by C.P. 532 Sujit Singh, C. P. 14 Rajendra Pal and H.G.874 Subhash, who had identified the dead body. (Ante morterm injuries found by this witness on the body of deceased have already been discussed in preceding paras of this judgment.) He has also stated that deceased had died on 18.03.2011 at about 1.15 P.M. due to ante mortem injury which would have been caused by sharp edged weapon like chopper (Gandasa).
20. PW-4 Constable Ram Pal has stated that on 18.03.2011 he was posted as Constable Clerk at P.S.Barkheda and on that day at about 13.50 P.M., he had prepared Chik FIR No.72/11 (Exhibit Ka 3) under Section 302 IPC against accused-appellant Sompal pertaining to Crime No.412 of 2011 in his own handwriting and signature and also entered the said report in General Diary report no.31 (Exhibit Ka 4).
21. PW-5 Rajesh Kumar Saxena was posted at P.S.Barkhera as Sub Inspector on 18.03.2011. He has stated that he had prepared Inquest Report (Exhibit Ka 12) of deceased Ram Prasad on 18.03.2011 at 2.30 P.M. under the direction of Station House Officer, Ram Awadh Singh (PW-6) and sent the corpse of deceased in sealed condition to Chief Medical Officer along with relevant papers, Exhibit Ka 8 to 14 i.e. Inquest Report, Request letter to Regional Inspector, Chief Medical officer, Photo Nash etc. According to him at the time of preparation of Inquest Report, mark of injuries were found on neck as well as on other parts of body of deceased Ram Prasad. He has further stated that sample of plain and blood stained soil were also taken from the place of occurrence and its recovery memo Exhibit Ka 5 was prepared. In addition to it, blood stained pant and shirt worn by accused-appellant at the time of occurrence were also taken in custody in the presence of Mithai Lal, Ex Village Pradhan and one Chandrasen and its recovery memo of Exhibit Ka 6 was prepared. Chopper (Gandasa) was also recovered by him from Verandah of the house of accused-appellant and its memo (Exhibit Ka 7) was also prepared by him in the presence of Mithai Lal and Bharat Singh and sealed by covering its sharp edge (fal) side by cotton.
22. PW-6 S.I. Ram Awadh Singh is Investigating Officer. He has stated that on Crime No.412 of 2011 under Section 302 IPC against accused-appellant Sompal was registered in his presence and its investigation was entrusted to him on 18.03.2011. According to him after getting FIR and entries in Case Diary, he took statement of Jhhamman Lal (PW-1) , eye witness and thereafter inspected place of occurrence in presence of Informant and eye witness Kumari Nitu and also recorded statement of Kumari Nitu and Akash Singh (PW-3). He has further stated that he had taken sample of blood stained and plain soil, and weapon used in committing crime in his custody and its memos were prepared by Sub Inspector, Sri R. K. Saxena (PW-5) in his supervision. He has further stated that during investigation all the articles which were recovered from place of occurrence were sent by him to Forensic Science Laboratory (hereinafter referred to as 'FSL') for examination. This witness has proved Chopper (Gandasa) recovered from place of occurrence and cloth wherewith it was sealed as Material Exhibits 1 and 2. He has also proved blood stained and plain soil and clothes wore by deceased as Material Exhibits 3 to 6.
23. Prosecution has examined S. I. Arvind Kumar Pandey as PW-7 who is another Investigating Officer to whom investigation of the case was entrusted after transfer of S.I. Ram Awadh Singh (PW-6). He has stated that investigation was entrusted to him after transfer of Ram Awadh Singh (PW-6). During investigation he had copied Inquest Report, Post Mortem Report in Case Diary and took the statements of witnesses Bharat Singh Fauji, Ram Dayal, Aadesh Singh, Brij Nandan, Ranjeet Kumar, Mithai Lal, Chandrasen. S. I. Rajesh Saxena, H.G. Subhash Chandra, Constable Rajendra Pal and upon conclusion of investigation, he filed charge sheet (Exhibit Ka 16) in his own handwriting.
24. So far as first argument of learned counsel for appellant that FIR is ante timed and was prepared with due deliberation and consultation with police personnel and appellant had already been arrested prior to lodging the FIR is concerned, the evidence produced by prosecution on record shows that occurrence had taken place on 18.03.2011 at 1.15 PM and on same day at 1.50 PM, FIR was lodged by Jhhamman Lal (PW-1) at P.S. Barkhera, District-Pilibhit. From perusal of Chik FIR (Exhibit Ka 3) it further transpires that distance of place of occurrence from P.S.Barkhera is only 4 km. Jhhamman Lal (PW-1) in his cross-examination has stated that he had reached at P.S. Barkhera at 1.30 P.M. and it took around two or three minutes in preparing the written report (Exhibit Ka 1). He has stated that police had not caught accused-appellant Sompal in front of him whereas report was already written. He again denied that Diwanji, PW-4 Constable Ram Pal Singh had guided him to get the FIR written whereas he had already got it prepared. PW-4 Constable Ram Pal Singh has specifically stated that Chik FIR (Exhibit Ka 3) was lodged by him on 18.03.2011 at 13.50 hours and entry thereof was mentioned in General Diary Report No.31 (Exhibit ka 4) at same time. No question or suggestion was put by defence counsel to this witness before Trial Court that accused had already been arrested prior to lodging FIR. Jhhamman Lal (PW-1) and Constable Ram Pal Singh (PW-4) have been cross-examined by defence counsel before Trial Court, but nothing had come out in their cross-examination wherefrom it can be assumed that FIR was prepared either with due deliberation and consultation of police personnel or it was ante timed or accused had already been arrested prior to lodging FIR. Thus, submission of learned Amicus Curiae appearing on behalf of accused-appellant in this regard has no substance.
25. So far as main argument of learned Amicus Curiae that prosecution case is based on sole testimony of PW-3 Akash Singh, who is tender aged child witness and son of deceased Ram Prasad and is an interested witness, hence case of prosecution is doubtful, is concerned, law relating to evidentiary value of evidence of a child witness is well settled. Section 118 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872") which deals with provision of competency of witnesses creates no discrimination between the evidentiary value of evidence of a child witness or other witnesses. It provides that all persons shall be competent to testifying unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions by reasons of their tender age, extreme old age, disease whether of body or mind or any other cause of same kind. Thus, it is clear that no particular age has been fixed by this provision, below which a child witness is incompetent to give evidence. The only test for his competency is whether he understands the question put to him or able to give rational answers to those questions or not.
26. In Rameshwar Singh Vs. State of Rajasthan, AIR 1952 SC 54 Court while dealing with admissibility of evidence of a child aged about 7 or 8 years has held that every witness is competent to depose unless, Court considers that he is prevented from understanding the question put to him or from giving rational answer by reason of his tender age, extreme old age, disease whether of body or mind or any other cause of same kind. There is always competency infact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oath Act adds ground of incompetency, it is evident that Section 118 of Act, 1872 must prevail. Court has further held as under :
".......................it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit- ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.............................."
27. In Nivrutti Pandurang Kokate and others Vs. State of Maharashtra, AIR 2008 SC 1460, Court again dealing with admissibility of evidence of a child witness has observed as under :
"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 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."
28. Similarly law relating to evidentiary value of sole witness or related witness is also established and prosecution case cannot be thrown out only on the ground that it is based on evidence of sole eye witness, who is relative of deceased or injured. It is settled law of criminal jurisprudence that no specific number of witnesses is required for proving prosecution case. It depends on facts and circumstances of each case. From perusal of legal proposition propounded in Vadivelu Thevar vs. The State of Madras, AIR 1957 SC 614, it is clear that it is established principle of criminal law that Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment or bar in convicting an accused on the sole testimony of single witness. This principle is also based on the legal position provided in Section 134 of Act, 1872, which provides that :
"No particular number of witnesses shall in any case be required for the proof of any fact."
29. It is very pertinent to quote at this very stage the law laid down in Masalti and others vs. State of U. P., AIR 1965 SC 202, which reads as under :
"...............But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.........."
30. Similarly, in Mohabbat vs. State of M. P., (2009) 13 SCC 630, Court held as under :
"...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.................."
31. Thus, it is established principle of criminal jurisprudence that prosecution case cannot be thrown out only on the ground that it is based on sole testimony of a child witness, who is a relative of deceased or injured. In such cases, it has to be seen whether evidence of such child witness is trustworthy and natural, his presence on the spot is very well established by the prosecution or not and also such child witness is competent to understand the question put to him and also to give rational answer during his examination.
32. As such, it has to be seen whether PW-3, Akash Singh who is star witness of prosecution and told his age as 5 years though his age was mentioned in FIR as 7 years, was able to understand the question put to him during examination and to give rational answer and also to understand his duty to speak the truth. Record shows that learned Trial Court conducted a preliminary enquiry in this regard before recording his evidence. In response to questions put to him by Trial Court, he said that committing theft is bad thing, to speak lie is a sin and every child has to attend school for education. Learned Trial Court after due satisfaction that this witness has sufficient understanding of good and bad act and also able to understand the nature of questions put to him and able to depose on oath, recorded his evidence after administering oath to him. In addition to it, record shows that this witness is also a school going child. He has put his signature on his statement.
33. PW-3 Akash in his examination-in-chief has categorically stated that the occurrence has taken place in his presence where his sister was also present. In his cross-examination this witness has stated that on the date of incident he had not gone out of his house for playing with colour and instead he was inside the house; Sompal (accused-appellant) was also inside the house and Sompal had not gone out to play with colour. Stating that his mother had died when he was very young this witness has further stated that his father had not remarried after death of his mother and it is wrong to say that his father had remarried with a lady, belong to Bihar. He has again stated in his cross-examination that on the date of incident there was an altercation between his father and his uncle Sompal (accused-appellant) regarding dabbing of cow dung. According to this witness, no scuffle had ensued between his father and uncle Sompal (accused-appellant). Stating that his father had not drunk liquor on that day whereas his uncle Sompal had drunk liquor. This witness has further stated that his father had not beaten Sompal (accused-appellant) on account of refusal by Sompal (accused-appellant) for dabbing cow dung. He (PW-3) has specifically denied suggestion put to him by defence counsel that his father firstly would have attacked Sompal (accused-appellant) with Gandasa and then Sompal snatched Gandasa from his father and assaulted his father. This witness has specifically stated in his cross-examination that fight lasted for 2-3 minutes wherein his uncle Sompal severed neck of his father by Gandasa and he was present at that very time. He has further stated that his uncle Sompal (accused-appellant) severed his father's neck with Gandasa, then he had gone to call Jhhamman Lal (PW-1). Thus, this witness has categorically responded to all questions put to him by defence counsel during his cross-examination. Nothing transpires from his examination to create any suspicion on evidence of this witness. Evidence given by this witness is natural and trustworthy. Hence, submission of learned Amicus Curiae that evidence of this witness, PW-3 is not reliable and trustworthy on account of his being sole child witness, who is relative of deceased, has no substance.
34. In addition to above it is also pertinent to mention at this juncture that in the said occurrence, this witness has lost his father. According to him, his mother had already died and his father had not remarried. He has only one sister who was also of tender age at the time of occurrence. Thus, after death of his father only accused-appellant Sompal would have been his natural guardian. This witness has given evidence regarding murder of his father against his real uncle Sompal (accused-appellant). Learned Amicus Curiae has not shown any reason or justification, why this witness is giving false evidence against his real uncle leaving aside real culprit. In absence of such justification or explanation, evidence of this witness becomes more natural, trustworthy and reliable.
35. So far as submission of learned Amicus Curiae that Serologist was not examined is concerned, record shows that blood stained shirt and pant worn by accused-appellant at the time of occurrence, Gandasa, samples of blood stained and plain soil taken into custody by Investigating Officer during examination and underwear, kardhani, taabiz, kalewa etc. of deceased sealed at the time of post mortem by PW-2, were sent by I.O. for chemical examination to Forensic Science Laboratory, Mahanagar, Lucknow and report sent by Director, Forensic Science Laboratory, Mahanagar, Lucknow is on record, which shows that blood stains present on Gandasa could not be ascertained as it was disintegrated. Thus, it is clear that this report is not very much useful to prosecution case and though it is admissible in evidence as per provision of Section 293 Cr.P.C., as such, submission made by learned Amicus Curiae, has no substance.
36. So far as submission of learned Amicus Curiae that prosecution has failed to prove motive of accused-appellant as he was in drunken state, hence, prosecution case is doubtful, is concerned, in this regard it is established principle of criminal jurisprudence that if prosecution case is based on direct evidence of eye-witness, motive loses relevance. Similarly, only on the ground that at the time of occurrence, accused-appellant was in drunken state is also not an excuse for him.
37. In Sheralli Wali Mohammad vs. State of Maharashtra, AIR 1972 SC 2443, where a plea was raised that since accused-appellant had not made any attempt to run away after killing his wife and children, hence, absence of motive will be presumed, Court rejected the plea and held as under :
"..........The mere fact that no motive has been proved why the accused murdered his wife and child or, the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence............"
38. It is pertinent to mention at this juncture that no question or suggestion was put by learned counsel for defence before Trial Court to PW-1, Jhhaman Lal or PW-3 Akash Singh during their respective cross-examinations that accused-appellant Sompal, at the time of occurrence, was in such state of intoxication (drunkenness) that he was unable to know the nature of offence committed by him. Accused-appellant Sompal had also not taken any such plea in his examination under Section 313 Cr.P.C. that at the time of occurrence he was fully drunk and was not capable of knowing the nature of act done by him or such act was contrary to law.
39. Plea of intoxication (drunkenness) can be taken by defence under provisions of Section 85 IPC read with Section 105 of Act, 1872.
40. Section 85 of I.P.C. reads as follows :
"Section 85. Act of a person incapable of judgment by reason of intoxication caused against his will.-Nothing is an offence which is done by a person who, at the time of doing it, is by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will."
41. Section 105 of Act, 1872 reads as follows :
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A."
42. Thus, it is clear that plea of drunkenness or intoxication is covered under the provisions of general exception and burden of proof of such pleas lies on accused. Section 85 IPC specifically provides that accused-appellant has to prove that he was intoxicated against his will or his knowledge and such intoxication was prior to such criminal act and by reason of intoxication he was incapable to know the nature of act done by him that such act was either wrong or contrary to law. Section 105 of Act, 1872 further provides that Court shall presume the absence of such circumstances unless and until proved by accused-appellant.
43. In Shanker Jaiswara Vs. State of West Bengal, 2007 Cr.L.J. Page 3271, while placing reliance on Basdev Vs. The State of Pepsu, 1956 SCR 363 and Bablu @ Mubarik Hussain Vs. State of Rajasthan, ACR 2007 SC 697, Court has held as under :
"There is nothing on record suggesting that at the time the appellant attacked the victim his mind was so affected by the drink he had voluntarily taken that he was incapable in forming the intention requisite for making his act the offence charged against him. The taking of drink cannot itself excuse the commission of a crime; and it is not a defence to prove that a man's mind was so affected by drink that he more readily gave way to passion, or that he would not have acted as he did had he been sober nor will drunkenness be a defence in case of strict liability, since, if an honest and reasonable mistake by a sober person cannot afford a defence, a mistake while drunk cannot do so."
44. Accused-appellant in this case was caught at the place of occurrence with Gandasa whereby he had murdered his real brother Ram Prasad and no such plea of drunkenness was taken by him. Neither any circumstance pleaded by appellant nor any existence of circumstances transpired from perusal of record that he had no intention to kill his real brother. Evidence available on record clearly shows that only on the account of trivial altercation ensued between him and deceased brother Ram Prasad, he had brutally killed his brother by severing his neck with sharp edged weapon, inside his house, in presence of PW-3 Akash Singh (son of deceased) and Kumari Neetu (daughter of deceased). Hence, after consideration of entire evidence, we find that there is no evidence on record in support of plea raised by learned Amicus Curiae, as such, his plea has no substance.
45. It is pertinent to mention here that all the witnesses were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their testimonies. Their testimonies have been well supported by the medical evidence. The minor discrepancies in the first information report will not overshadow prosecution version. There is complete consistency and coherence in the examination-in-chief and cross-examination of the prosecution witnesses. The place, time and date on which the offence was committed and by whom the offence was committed, have been revealed in the FIR. There is nothing on record to show that the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely absolving the actual assailants. The learned trial court has elaborately discussed the evidence led by the prosecution in the light of arguments advanced by the prosecution as well as the defence. The impugned judgment and order requires no interference and liable to be affirmed.
46. Now the question arises as to whether sentence passed by Trial Court is just and proper or not. Accused-appellant Sompal has been found guilty and convicted under Section 302 IPC and sentenced to imprisonment for life along with fine Rs.20,000/- by Trial Court. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:-
"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
47. In Basdev Vs. The State of Pepsu, AIR 1956 SC 488 while discussing the nature of plea taken by defence under section 85 IPC that whether culpable homicide caused under influence of drunkenness, is punishable under Section 302 IPC or Section 304 (II) IPC, Court has held as under :
"............The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act, in other words, that he intended to inflict bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.
On this finding the offence is not reduced from murder to culpable homicide not amounting to murder under the second part of Section 304 of the Indian Penal Code....................."
48. Looking into the nature and gravity of the offence, we are of the view that punishment awarded by Trial Court is just and appropriate and requires no interference. Appeal is liable to be dismissed and impugned judgment and order passed by the learned Trial Court is liable to be affirmed.
49. In the light of above discussions, appeal is hereby dismissed. Impugned judgment and order dated 24.12.2012 passed by Additional Sessions Judge, Court No.2, Pilibhit in Sessions Trial No.332 of 2011 (State vs. Sompal) is maintained and affirmed.
50. Let a copy of this judgment along with lower court record be sent to Additional Sessions Judge, Court No.2, Pilibhit, for compliance. A compliance report be sent to this Court. Copy of this judgment be also supplied to accused-appellants through concerned Superintendent of Jail.
51. Sri Rajshree Malviya, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs.10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Rajshree Malviya, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of a copy of this judgment.
Order Date : 24.04.2019 Manish Himwan