Jharkhand High Court
Mukund Kulla @ Mukund Kulla vs The State Of Jharkhand on 4 July, 2023
Author: Subhash Chand
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 30 of 2013
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(Against the judgment of conviction and order of sentence dated
11.12.2012 passed by learned Principal Sessions Judge, Simdega in
Sessions Trial No.93 of 2008 arising out of Jaldega P.S. Case No. 11 of
2008, corresponding to G.R. No. 127 of 2008)
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Mukund Kulla @ Mukund Kulla, Resident of Village-Parba, P.O. &
P.S.-Jaldega, Dist.-Simdega, Jharkhand
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Dr. Hasnain Waris, Advocate
For the Respondent : Mr. Manoj Kumar Mishra, A.P.P.
.....
CAV on: 10/05/2023 Pronounced on: 04 /07/2023
Per Sujit Narayan Prasad, J.
1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction and order of sentence dated 11.12.2012 passed by learned Principal Sessions Judge, Simdega in Sessions Trial No.93 of 2008 arising out of Jaldega P.S. Case No. 11 of 2008, corresponding to G.R. No. 127 of 2008, whereby and whereunder, the appellant has been convicted for the offence under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life.
2. The prosecution story in brief, as per the fardbeyan, reads as under:
According to the fardbeyan of widow of the deceased that on 09.04.2008 at about 8:45 p.m., the deceased along with his son Gurucharan Kulla was going to guard the bridge after taking meal. At about 9:00 p.m., her son came with fear and disclosed the incident to his mother while crying that uncle Mukund Kulla has killed his father 2 with axe and when she came out and noticed, her husband was lying by side of the well, west to the house, with profuse bleeding and the accused was fleeing away from the village along with an axe in hand.
Thereafter, on raising the alarm, the villagers came there and witnessed the occurrence.
On the basis of the fardbeyan of the informant, FIR was instituted and accordingly investigation proceeded and thereafter charge sheet has been submitted against the accused under Section 302 of the IPC. Thereafter, cognizance had been taken and the charges were framed and for the content of the charges, the accused pleaded not guilty and claimed to be tried. Thereafter, the trial proceeded and the learned trial court after considering the materials available on record and the testimonies of the witnesses, convicted the present appellant under Section 302 of the IPC.
3. Dr. Hasnain Waris, learned counsel for the appellant has submitted that the learned trial Court has committed error in convicting the appellant without taking into consideration the inconsistency in between the testimony of witnesses.
It has been contended that the conviction is based upon the eye witness, P.W.1 who happens to be aged about 10 years, basing upon his testimony, the conviction of the appellant is based, but, without taking into consideration the fact that P.W.1 is non-else but the son of the deceased and as such, the interested witness.
It has further been contended that non-examination of the Investigating Officer is also a vital ground to interfere with the judgment of conviction.
The further submission has been made that all the other witnesses are hearsay and as such, there is no corroboration of testimony of other witnesses with the testimony of P.W.1.
3The further argument has been made that occurrence took place at night which was a dark night and it is not possible for P.W.1 to see the face of accused in flash of ten rupees torch.
Learned counsel for the appellant, on the basis of the aforesaid ground, has submitted that the judgment of conviction, therefore, is not sustainable in the eye of law.
4. While on the other hand, Mr. Manoj Kumar Mishra, learned APP appearing for the respondent-State has submitted by defending the judgment of conviction passed by the learned trial Court. It is incorrect on the part of the appellant to take the ground that merely because P.W.1 who happens to be aged about 10 years, his testimony is to be discarded.
It has been submitted that P.W.1, even though, was aged about 10 years, but his testimony has been relied upon by the learned trial Court after taking into consideration that on test, the learned trial Court has found him competent to understand and answer.
Submission, therefore, has been made that the law is well settled that if the witness is child, then the Court after taking into consideration his understanding, can well rely upon such testimony.
Learned APP appearing for the State has further submitted that the testimonies of other witnesses have also supported the prosecution version including the Doctor who has found in the postmortem report that the injury said to be ante-mortem in nature and is being found in corroboration with the testimony of P.W.1.
Learned counsel for the State, on the basis of the aforesaid submission, has submitted that the learned trial court has considered the aforesaid aspect of the matter, basis upon which, the judgment of conviction and order of sentence has been passed, therefore, it is not a case where the judgment of conviction/sentence requires interference.
5. We have heard the learned counsel for the parties, perused the lower court records containing the testimony of witnesses, exhibits, 4 postmortem report as also the finding recorded by the learned trial Court in the impugned judgment.
6. This Court, in order to consider the legality and propriety of the impugned judgment, deems it fit and proper to refer the testimony of the prosecution witnesses whereas altogether 9 witnesses have been examined.
P.W.1 Gurucharan Kulla, is the son of the deceased aged about 10 years. He has stated that one year ago, he along with his father was going to guard the bridge on Parba River. When they reached near the well, his uncle Mukund Kulla assaulted his father with Tangi on back of the head and committed murder of his father. He fled away from there, due to fear and told her mother about the incident. Thereafter, this witness along with his mother had gone there and saw his father lying there with pool of blood. At that time his uncle fled away from there.
In para-3 of the examination-in-chief, he has identified the accused and further stated that he is the person who has assaulted his father with Tangi.
In his cross-examination, he has stated that the alleged occurrence was happened at 9:00 p.m. and there was darkness and he was walking ahead from his father at that time. The accused assaulted his father from behind and at that time, he was 2-3 steps far from his father. He was having torch with him and identified the accused by flashing the torch. He has further stated that accused assaulted twice on the head of his father with Tangi .
P.W.2 Sita Devi, is the Informant (wife of the deceased). She has stated that alleged occurrence had taken place before one and half year at about 8-9 p.m. At that time, she was going to sleep after taking meal. Her husband and son had already proceeded to guard the bridge. In the meantime, her son Gurucharan Kulla came running with fear and disclosed to her that Uncle Mukund Kullu has killed his father with axe. Thereafter, she had gone there and saw the dead body of her 5 husband lying by the side of well having injury on head and upper portion of left eye and her Devar Mukund was fleeing away from the village along with axe in his hand.
She has also deposed that after raising alarm, the villagers assembled there. The Police was informed and then Police arrived and her fardbeyan was recorded. She identified the accused present in the dock.
In her cross-examination, at paragraph-5 she has stated that there was previous land dispute between the accused and the deceased, due to which, the incident had taken place in between the accused and the deceased at about 8-9 p.m. and after three minutes, the accused committed murder of her husband. The alleged occurrence had taken place near the well situated at a distance of 50-60 steps from her house. At that time her son Gurucharan was present there. She has further stated that she had seen the accused fleeing away with Tangi.
P.W.3, namely, Budhani Devi is the hearsay witness. She has stated that at the time of alleged occurrence, she was in her house. In the meantime, Gurucharan Kulla came there and told that accused has assaulted the deceased. Then she has gone there and saw the dead body of the deceased near the well having injury. Mukund had fled away from there. She identified the accused in the dock.
In her cross-examination, she has stated that Mukund has three brothers and they were living separately with his three brothers. She has also stated that she has not heard any hulla before arrival of Gurucharan.
P.W.4, namely, Bharthu Manjhi, has deposed that on the alleged date of occurrence, he was in his house. His brother Rambilas Kulla has informed him that Mukund Kulla had killed his brother. Then, he had gone there and saw the dead body of deceased lying near the well having injury on neck. He has identified the accused.
6In his cross-examination, he has deposed that when he reached at the place of occurrence, 20-25 people were gathered there, but he cannot recognize by their name.
P.W.5, namely, Rambilash Kulla has deposed that on the alleged date of occurrence, he was at his house and taking meal. He has heard hulla of quarrel in between the accused and the deceased. After sometime, Gurucharan Kulla came and told him that Mukund Kulla is assaulting his father with Tangi. Then, he had gone there and saw Baisaku Kulla lying near the well in an injured condition. Mukund Kulla fled away from there. The police came there and recorded the fardbeyan of Sita Devi and thereafter, Sita Devi, the informant, put her RTI on it. He has identified the accused.
In his cross-examination, he has deposed that Gurucharan came to his house and he along with Gurucharan (son of the deceased) went there. He has also deposed that he has no knowledge that any dispute is going on in between the accused and the deceased.
P.W.6, namely, Sadhu Pradhan, has deposed that on the alleged date of occurrence, it was night and he was in his house. He was informed that Mukund Kulla has committed murder of his brother, then he reached there and saw the dead body having injury on head. He has identified the accused.
P.W.7, namely, Mahli Kujur, has stated that on the alleged date of occurrence, it was night and he was in his house. On hearing hulla, he came near the house of Mukund Kulla where he saw the dead body of Baisaku Kulla, the deceased lying beside the well and further saw the sign of blood stain. He has also identified the accused.
P.W.8, namely, Bandhnu Manjhi, has deposed that on the alleged date of occurrence he was inside his house. He was called by Mahali Kujur in night about the occurrence and then he saw the dead body of the deceased was lying near the well. He has also identified the accused.
7P.W.9, namely, Dr. Kishore Kullu, posted in Sadar Hospital, Simdega as Medical Officer, who had conducted postmortem on the dead body of Baishakhu Kulla, the deceased and was of the opinion that nature of injuries are ante-mortem in nature and caused by sharp and heavy cutting weapon such as Tangi. He had found on physical examination that physique average built, nutrition good, decomposition was present, rigors mortis absent in upper limbs but present in both lower limbs, eyes closed, mouth was opened. On examination, the following injuries have found on the body of the deceased:
"On external examination-(1) Incised would 3"x1/2"x bone deep with fracture of occipital region horizontally over posterior part of the skull, (II) Incised would 3"x2"x bone deep with fracture of occipital horizontally over posterior part of the skull.
On internal examination-(i) On opening of skull cavity there was fracture of all cranial bone with laceration of brain and meninges underlying the injury, (ii) All vesceras were found congested, (iii) Stomach with rice and cereal found, Small intestine with digested food and gases were present while large intestine with faecal matter and gases were present, (iv) Heart both chambers were empty, Urinary bladder was empty, Time elapsed since death-within 48 hours of duration."
7. This Court, before proceeding to examine the testimony of witnesses is require to refer herein the two vital grounds, i.e., (i) the testimony of child witness cannot be relied upon for basing the conviction. In this regard, the law is well settled regarding the acceptance of testimony of child witness, as per the statutory mandate, as referred in Section 118 of the Evidence Act.
A provision has been made in the Indian Evidence as under
Section 118 wherein it has been provided that the testimony of the tender witness can be accepted subject to verification of the intellectual capacity of such witness.
For ready reference, Section 118 of the Evidence Act is quote as under:
118. Who may testify. --All persons shall be competent to testify unless the Court considers that 8 they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation.-- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
The admissibility of tender witness fell for consideration before the Hon'ble Apex Court in the judgment rendered in Virendra alias Buddhu & Anr. Vs. State of Uttar Pradesh [(2008) 16 582], relevant paragraph of which is quoted as under:
19. A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
20. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows :
(SCC p. 343, para 5) "5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which 9 the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
21. Subsequently, in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that (SCC p. 67, para 7) though "[t]he decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath."
but"[t]he decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous".
The Bench further held as under: (Ratansinh case [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7) "7. ... This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
10The Hon'ble Apex Court further in the case judgment rendered in the case of Nivrutti Pandurang Kokate & Ors Vs. State of Maharashtra [(2008) 12 SCC 565], wherein at paragraph 10, it has been held as under:
10. "6. ... The Evidence Act, 1872 (in short „the Evidence Act‟) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease--whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States [40 L Ed 244 : 159 US 523 (1895)] . The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka [(2001) 9 SCC 129 : 2002 SCC (Cri) 413].)
7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5) "5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction.
In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a 11 reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.‟ The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
The above position was highlighted in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC pp. 67-68, paras 6-7. Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference.
It is, thus, evident from the testimony of child witness is not to be discarded if the requirement as stipulated under the statutory command as under Section 118 of the Evidence Act, has been followed by the learned trial Court.
The further ground has been taken that the Investigating Officer has not been examined and as such, the entire prosecution version is to be vitiated. But the law is well settled in this regard that the non- examination of Investigating Officer is not fatal for prosecution, if there is other corroborative piece of evidence, as has been held by the Hon'ble Apex Court in the case of Raj Kishore Jha Vrs. State of Bihar 12 & Ors., reported in (2003) 11 SCC 519, wherein, at paragraph-11, it has been held as under:-
"11. Mere non-examination of the Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev v. State of U.P. [1995 Supp (1) SCC 547 : 1995 SCC (Cri) 402 (2)] it was noted that non-examination of the Investigating Officer does not in any way create any dent in the prosecution case, much less affect the credibility of otherwise trustworthy testimony of the eyewitnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in-chief and partial cross-
examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of the Investigating Officer's non-examination. The prosecution cannot be attributed with any lapse or ulterior motive in such circumstances. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] it was held that a case of prejudice likely to be suffered mostly depends upon facts of each case and no universal straitjacket formula should be laid down that non-examination of the Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad v. State (Delhi Admn.) [(2000) 2 SCC 646 : 2000 SCC (Cri) 522] , Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] and Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311 : 2001 SCC (Cri) 1546 : JT (2001) 8 SC 110]."
8. This Court, after having discussed the aforesaid legal position is now proceeding to examine the prosecution witnesses more particularly the testimony of P.W.1, Gurucharan Kulla, who is the son of deceased and aged about 10 years.
It appears from his testimony (P.W.1) and the finding recorded to that effect by the learned trial Court that before recording his testimony, 13 his legal acumen and the capacity of the mind has been assessed by the Court.
The deposition has been made by him that one year ago, he along with his father was going to guard the bridge on Parba River. When they reached near the well, his uncle Mukund Kulla assaulted his father with Tangi on back of the head and committed murder of his father. He fled away from there, due to fear and told her mother about the incident. Thereafter, this witness along with his mother had gone there and saw his father lying there with pool of blood. At that time his uncle fled away from there.
He has also stated at para-3 that he has identified the accused and further stated that he is the person who has assaulted his father with Tangi.
It is, thus, evident that the learned trial Court since has examined the medical status and the capacity of understanding of P.W.1 and thereafter, has considered his testimony considering him to be an eye witness, the same, applying the principle laid down by the Hon'ble Apex Court in the cases of Virendra alias Buddhu & Anr. Vs. State of Uttar Pradesh (supra) & Nivrutti Pandurang Kokate & Ors Vs. State of Maharashtra (supra), cannot be said to suffer from an error.
It further appears from the testimony of P.W.2, who is the informant (wife of the deceased), however, she is not an eye witness, rather, it is evident from her testimony that when she was going to sleep after taking meal her husband and son has already proceeded to guard the bridge and in the meantime, her son Gurucharan Kulla came running with fear and disclosed to her that Uncle Mukund Kullu has killed the father with axe. Thereafter, she had gone there and saw the dead body of her husband lying by the side of well having injury on head and upper portion of left eye and her Devar Mukund (accused) was fleeing away from the village along with axe in his hand.
It is evident from her cross-examination that she remains consistent what she has stated in her examination-in-chief.
14It is, thus, evident from the testimony of P.W.2 that she had seen the accused fleeing away from the village along with axe in his hand.
P.W.3, namely, Budhani Devi is the hearsay witness and had seen the dead body of the deceased near the well having injury. She has also stated that Mukund had fled away from there.
P.W.4, namely, Bharthu Manjhi, has deposed that on the alleged date of occurrence, he was in his house. He is also hearsay witness but he had seen the dead body lying near the well having injury on neck and has identified the accused.
P.W.5, namely, Rambilash Kulla is also hearsay witness and after hearing the quarrel in between the accused and the deceased, Gurucharan Kulla came and told him that Mukund Kulla is assaulting his father with Tangi, then, he had gone there and saw Baisaku Kulla (deceased) lying near the well in an injured condition.
P.W.6, P.W.7 & P.W.8 are also hearsay witnesses.
P.W.9, the Doctor had conducted the postmortem and found the injury to be ante-mortem in nature and the reason of death has been shown to be caused by sharp and heavy cutting weapon such as Tangi.
Thus, the prosecution story is fully substantiated by the medical evidence wherein the reference of injuries and weapon used in commission of crime, are exactly similar to the testimony of P.W.1.
It is, thus, evident that the testimony of P.W.1 who has been considered to be an eye witness by the learned trial Court and his testimony has been corroborated by all other witnesses as also the same has been fortified by the medical evidence, as would appear from postmortem report and the opinion of the doctor that the injury said to have caused by sharp and heavy cutting weapon like Tangi.
9. The question of non-examination of Investigating Officer has been raised, as has been referred hereinabove about the position of law that merely because of non-examination of Investigating Officer, the trial 15 will not vitiate if the prosecution version is based upon the testimony of other reliable witnesses.
Herein, P.W.1 since has been considered to be an eye witness, who has witnessed the commission of crime and in that view of the matter, non-examination of Investigating Officer will not be fatal coupled with the fact that other witnesses have supported the prosecution version.
10. This Court, on the basis of the discussion made hereinabove and after going through the finding recorded by the learned trial court as also after taking into consideration the settled position of law, is of the considered view that the order of conviction and sentence, as has been passed by the learned trial court requires no interference.
11. Accordingly, the instant appeal fails and stands dismissed.
12. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
(Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated: 04/07/2023
Rohit / A.F.R.