Sikkim High Court
Nar Bahadur Kharka vs State Of Sikkim on 29 September, 2014
Equivalent citations: 2015 CRI. L. J. 304, (2015) 145 ALLINDCAS 932 (SK)
Author: Sunil Kumar Sinha
Bench: Sunil Kumar Sinha
1
CRA 11/2013
HIGH COURT OF SIKKIM, GANGTOK
(Criminal Appellate Jurisdiction)
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D.B.: HON'BLE SHRI NARENDRA KUMAR JAIN, C.J. &
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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Criminal Appeal No. 11/2013
APPELLANT Shri Nar Bahadur Kharka,
S/o Kul Bahadur Kharka,
R/o Kharka Gaon, Lower Luing,
Ranka, Gangtok
At present, Rongyek Central Prison,
East Sikkim.
Versus
RESPONDENT State of Sikkim.
Criminal appeal under Section 374(2) of the Cr.P.C.
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Appearance :
Mr. A. K. Upadhyaya, Senior (Legal Aid) Counsel with Ms.
Binita Chettri, Advocate for the Appellant.
Mr. Karma Thinlay, Addl. Public Prosecutor with Pollin Rai,
Asstt. Public Prosecutor for the State.
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JUDGMENT
(29.09.2014) Following judgment of the Court was delivered by SUNIL KUMAR SINHA, J.
1. Appellant, Nar Bahadur Kharka, stands convicted u/S. 302 IPC for commission of murder of his wife, Leela 2 CRA 11/2013 Devi Kharka, and minor son, Basant Kharka, by the Sessions Judge, Special Division-II, East Sikkim at Gangtok, vide judgment and order dated 31.03.2012 passed in Sessions Trial Case No.7/2010.
2. The facts, briefly stated, are as under:-
2.1. Leela Devi Kharka (deceased) was married to the appellant 5-6 years prior to the date of incident, which took place in the intervening night of 18th and 19th of March, 2009. The couple had a daughter, namely, Varsha Kharka (PW-12) and a son, namely, Basant Kharka (deceased), aged about 1 year. All above family members were residing together in a house in Gangtok, which was situated at a distance of about 6 kms.
towards North-West from Sadar Police Station. 2.2. On 18th March, 2009 at about 8 p.m., the two deceased and Varsha Kharka (PW-12) were present in their house. The appellant came to the house at about 9 p.m. and on certain altercation with his wife, Leela Devi Kharka 3 CRA 11/2013 (deceased), he firstly committed murder of his minor son, Basant Kharka, by pressing his neck and smothering by palm. Thereafter, he took a sickle (hasiya) from one of the rooms of his house and attacked over the neck of his wife, Leela Devi Kharka (deceased), which caused fatal cut injury, resulting her instantaneous death. 2.3. Varsha Kharka (PW-12) had witnessed the entire incident. She anyhow escaped from the house and remained in the forest for whole night and, thereafter, on the next morning, narrated the incident to the other relatives. The appellant had hidden the dead body of his son in the quilt and he had dragged the dead body of his wife to the nearby bamboo groves, where it was seen by many persons in the morning.
2.4. The case of prosecution was based on eye wit- ness account of Varsha Kharka (PW-12). She was the sole eye-witness to the incident. The learned Sessions Judge relied on the testimony of 4 CRA 11/2013 Varsha Kharka (PW-12) and held that it was proved beyond all reasonable doubts that the appellant had committed murder of the two deceased persons in the above manner, therefore, he was liable for punishment u/S.302 IPC. The appellant, thus, was held guilty u/S. 302 IPC and sentenced as above. However, he was acquitted of the charges framed u/S. 201 IPC.
3. Mr. A. K. Upadhyaya, learned Senior (Legal Aid) Counsel, appearing on behalf of the appellant, has mainly contended that Varsha Kharka (PW-12) was aged about 4½ years on the date of incident; she was a child witness; therefore, there was a chance of tutoring. He also argued that there were many discrepancies in her evidence, therefore, conviction based on her solitary testimony cannot be sustained.
4. On the other hand, Mr. Karma Thinlay, learned Addl.
Public Prosecutor, appearing on behalf of the State, 5 CRA 11/2013 has opposed these arguments and supported the judgment passed by the Sessions Court.
5. We have heard counsel for the parties.
6. Varsha Kharka (PW-12) was a child witness, aged about 6 years on the date of recording of her evidence, i.e. on 2nd May, 2011. We find from her evidence that in the very first paragraph of her deposition, the Sessions Judge has observed that he was satisfied that she was capable of giving evidence. Varsha Kharka (PW-12) identified the appellant on dock, saying that he was her father. She deposed that her father (appellant) had strangled the neck of her younger brother with a chunni and pressed him under the bed due to which he had died. She further deposed that her father (appellant) had attacked over the neck of her mother by a khukuri, who had also died. After the incident, she ran away to the house of Jamuna Fupu (aunt) and narrated the whole incident.
7. Varsha Kharka (PW-12) was put to lengthy cross-
examination by the defence but nothing material could 6 CRA 11/2013 be elicited in her cross-examination. She clearly denied the suggestion that she had not witnessed the incident by saying that it is not a fact that she did not witness the quarrel between her father and mother (deceased). She deposed in the cross-examination that while taking her mother (deceased) to the bamboo groves, her father (appellant) dragged her by holding her leg. She further denied the suggestion that she was sleeping at the time of the incident. She admitted that after the incident, she was staying with her badi (elder sister of her mother) at Pakyong, but she clearly denied the suggestion that she was tutored by her badi to give evidence before the Court. She clearly denied the suggestion that she was also tutored by her maternal uncle and aunt to depose against the appellant.
8. Mr. Upadhyaya has argued that there were some contradictions between her statements (Exbt.-16) recorded u/S. 164 Cr.P.C. and the court evidence. It is true that there were some contradictions between her previous statements u/S. 164 Cr.P.C. and the 7 CRA 11/2013 Court's evidence, but we find that those contradictions were never put to her for explanation. What comes in her evidence is that "it is not a fact that the statements given in the Court today and the statements given earlier in the Court marked Exbt.- 16, are different".
9. Section 145 of the Indian Evidence Act, 1872 provides about cross-examination as to previous statements in writing. It provides that a witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can proved, be called to those parts of it which are to be used for the purpose of contradicting him.
10. In the instant case, the previous statements of Varsha Kharka (PW-12) were never referred to her. Even no attention was drawn towards any part of the said 8 CRA 11/2013 statements. Moreover, we find that there is no material contradiction in her evidence and the previous statements so far as involvement of the appellant in commission of murder to her family members is concerned. She had taken the name of the appellant as the assailant for commission of murder of the two deceased persons.
11. The above evidence of Varsha Kharka (PW-12) was duly corroborated by the evidence of Dr. K.B. Gurung (PW-3), who conducted autopsies of the dead bodies of the deceased persons and found following injuries:-
(A) Injuries found on the dead body of deceased Leela Devi Kharka
(i) Incised wound 13 x 3 x 4 cms on the front side (right) of the neck. The margins were regular. Clean cut.
Averted and well - refined. The wound starting from the right side and ending towards left side of the neck.
(ii) There was fracture of the mandible bone.
9CRA 11/2013
(iii) There were multiple bruises on the back side of the chest wall.
According to his opinion, the above injuries were ante-mortem and cause of death was injury to the neck. The autopsy report is Exbt.-3. (B) Injuries found on the dead body of deceased Basant Kharka
(i) Scratch abrasion caused by finger nails on both sides of neck above the thyroid cartilage. Scratch abrasion caused by the thumb nail is deeper and wider as compared to that from finger nails.
(ii) Abrasion and bruises were found over the region of nose and mouth and were also present in lips and gums.
(iii) Bruises 3 x 2 cms on the right thigh.
(iv) There was haemorrhage in the
subcutaneous tissues and in the
muscles underlying the nail marks.
He opined that above injuries were ante-mortem and the cause of death was smothering and throttling. The autopsy report is Exbt.-6. 10 CRA 11/2013
12. During the course of investigation, the appellant was taken into custody on 19.03.2009 and his disclosure statement (Exbt.-13) was recorded u/S. 27 of the Indian Evidence Act, 1872 and a sickle was seized at his instance vide seizure memo, Exbt.-10. The sickle was khukuri like as is clear from the sketch drawn in the seizure memo. The above disclosure statement and seizure have been duly proved by the prosecution. The said sickle was stained with blood like substance, therefore, it was sent for chemical examination to Central Forensic Science Laboratory (CFSL), Kolkata, from where a report, Exbt.-25, was received. According to CFSL report, the sickle was stained with human blood of 'B' Group. This further corroborates the evidence of Varsha Kharka (PW-12), who clearly deposed that the appellant had attacked over her mother by the said article, which was found stained with human blood.
13. Varsha Kharka (PW-12) was daughter of Leela Devi Kharka (deceased). The appellant is her father. The incident took place in their house in the night at about 11 CRA 11/2013 9 p.m. Therefore, presence of this child witness in her own house in the night cannot doubted. It is not a case that she had seen the incident from long distance. In the instant case, Varsha Kharka (PW-12) had seen the incident from a very short distance, which took place in her own house. Thus, there was no possibility of mistaken identity. Moreover, why Varsha Kharka (PW-12) will leave the actual culprit and she would falsely implicate her own father?
14. Mr. Upadhyaya has argued that many things may not be in the memory of a child of such a tender age. Mr. Karma Thinlay has vehemently opposed this argument, relying on the decision of the Hon'ble Supreme Court in State of Uttar Pradesh vs. Krishna Master & Ors.; (2010) 12 SCC 324. In the said judgment, it was observed by the Supreme Court in paragraph 37 that "it would be doing injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events 12 CRA 11/2013 which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future".
15. In the instant case, Varsha Kharka (PW-12) was aged about 4½ years on the date of the incident, i.e. on 18.03.2009 and she deposed before the Court on 2nd May, 2011. Thus, much time has not elapsed between the incident and the date of recording her evidence. It was an incident in which she lost her mother and younger brother and the culprit was none else but her father. How one can say that she would not be able to say anything before the Court, which she witnessed in the said night.
16. In Alagupandi alias Alagupandian vs State of Tamil Nadu: (2012) 10 SCC 451, it was held by the Hon'ble Supreme Court that a child witness can be a competent witness provided statement of such witness is reliable and truthful. While assessing evidence of a child witness, Court must carefully observe his/her 13 CRA 11/2013 demeanour to eliminate likelihood of tutoring. Conviction can be allowed to stand without any corroboration, but as a rule of prudence it is always desirable to seek corroboration of such evidence from other reliable evidence on record.
17. In case on hand, as we have already observed, the evidence of Varsha Kharka (PW-12) was duly corroborated by the medical evidence of Dr. K.B. Gurung (PW-3), who found the above injuries on the dead bodies of the deceased persons. Her version was further corroborated by seizure of weapon at the instance of the appellant, which was found stained with human blood. The dead body of the child was found in the house of the appellant and the dead body of his wife was found in the bamboo groves near his courtyard. It was an incident, which took place in the night when the husband and wife along with their two minor children (only 4 persons) were present in the house. The appellant did not offer any explanation in his statements u/S. 313 Cr.P.C. as to how his wife and minor child were committed to homicidal death in his 14 CRA 11/2013 own house. On the contrary, when in the morning, Dhan Maya Sharma (PW-18), sister of Leela Devi (deceased), went to the house of the appellant and asked about the deceased, the appellant started abusing her by saying 'randi' and said that he has killed her sister (deceased) and has thrown her dead body in the bamboo groves. All this corroborates the evidence of Varsha Kharka (PW-12). On the above discussion, we find that there is no infirmity in the evidence of Varsha Kharka (PW-12) and the conviction based on her solitary testimony is fully justified.
18. Mr. Upadhyaya has lastly contended that in the facts and circumstances of the case, an offence u/S. 302 IPC would not be made out and the appellant would be liable for punishment under some lesser Section, preferably Part-I or Part-II of Section 304 IPC. He argued that a quarrel had preceded the incident. There is no material to show that, in fact, a quarrel has preceded the incident. There is no whisper of quarrel between appellant and his wife in the evidence of Varsha Kharka (PW-12), who witnessed the entire 15 CRA 11/2013 incident. Nothing has been asked about the quarrel in her cross-examination. There is no other evidence on record to suggest that, firstly, a quarrel took place between the husband and wife and, thereafter, the husband (appellant) assaulted the wife (deceased) by sickle. This is a case in which the two persons lost their lives. The manner in which the incident took place would clearly show that the appellant had intention to commit murder of the deceased persons and the act committed by him cannot be classified under any Exception to Section 300 IPC.
19. The appeal, therefore, is liable to be dismissed and is hereby dismissed.
Sd/- Sd/-
( S. K. Sinha ) ( N. K. Jain )
Judge Chief Justice
29.09.2014 29.09.2014
Approved for reporting: Yes/No.
Internet : Yes/No.
pm/-
16
CRA 11/2013
IN THE HIGH COURT OF SIKKIM AT GANGTOK (Criminal Appellate Jurisdiction) DIVISION BENCH CRIMINAL APPEAL NO. 11/2013 Shri Nar Bahadur Kharka ... Appellant.
Versus
State of Sikkim ... Respondent.
Post for Judgment on 29.09.2014.
Judge
26.09.2014