Jharkhand High Court
Budhram Jojo vs The State Jharkhand on 18 July, 2023
Bench: Sujit Narayan Prasad, Subhash Chand
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.1030 of 2017
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[Against the judgment of conviction dated 21.03.2017 and order
of sentence dated 24.03.2017 passed by the learned Additional
Sessions Judge, Simdega in Sessions Trial Case No.68 of 2011]
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Budhram Jojo, S/o Saniya Jojo R/o Village-Jorobari, Jojotoli,
P.O. & P.S.-Bano, District-Simdega
.... Appellant
Versus
The State Jharkhand .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. Rishi Pallava, Advocate
For the State : Mr. Shailendra Kr. Tiwari, A.P.P.
.....
C.A.V. on 05/07/2023 Pronounced on 18/07/2023
Per Sujit Narayan Prasad, J.:
The instant appeal, filed under Sections 374 (2) and 389 (1) of the Code of Criminal Procedure, has been preferred against the judgment of conviction dated 21.03.2017 and order of sentence dated 24.03.2017 passed by the learned Additional Sessions Judge, Simdega in Sessions Trial Case No.68 of 2011, by which the appellant has been found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- and in case of default of payment of fine, he has further been directed to undergo S.I. for four months with a condition that 60 per cent of the fine deposited shall go to Piyush Jojo (P.W.12), son of the deceased persons. -2-
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per fardbeyan of informant, which reads as under:
Fardbeyan of the informant-Bishram Lugun, S/o Late Atwa Lugun of Village-Karijor, P.S.-Hathibari (Nuageeun O.P.), District-Sundargarh (Orissa) has been recorded by S.I. Tulsidas Munda of Girda O.P., District-Simdega on 30.11.2010 at 15.00 p.m. at Jorobari, Jojotoli, wherein, it has been alleged by the informant that on 30.11.2010 at about 9.00 o'clock, he was in his home, then his sister's son-in-law namely, Mansidh Jojo informed him telephonically that his Bhatu (brother-in-law) and sister had been killed with farsa by Budhram Jojo. Upon such information, he came in Village-Jorobari, Jojotoli, P.S.-Bano (Girda O.P.) in the house of his said brother-in-law (Bhatu) and saw the dead body of his brother-in-law, namely, Bhadwa Jojo and sister Sugi Jojo lying in their bed room with pool of blood and on enquiry, nearby co-villagers and his maternal nephew (bhagina) namely, Piyush Jojo, aged 9 years disclosed him that on the last evening, the accused abused with deceased persons relating to land dispute and in the night at about 10.00 o'clock, the accused Budhram Jojo armed with farsa came in the bed room and killed both Bhadwa Jojo and Sugi Jojo, the deceased persons and fled away. There were several serious injuries on the face, head and body of both deceased persons who died on the spot.-3-
He has further disclosed the motive of the occurrence that the accused, own nephew of his deceased brother-in-law had land dispute with both the deceased persons and due to said reason, he killed the deceased persons and fled away along with alleged farsa and thereafter, his fardbeyan was recorded by the local Police and after reading and finding the same true, he put his signature over it in presence of his maternal nephew (bhagina) namely, Piyush Jojo who has also put his thumb impression as witness.
On the basis of fardbeyan of the informant, Bano (Girda O.P.) P.S. Case No.43/10 dated 30.11.2010 under Section 302 of the Indian Penal Code, was registered against the accused person and the matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet no.06/11 dated 31.01.2011.
Thereafter, the cognizance of the offence was taken and the case was committed to the Court of Sessions wherefrom the case was received in the Court for trial and disposal and the charge was framed against the sole accused, who had pleaded not guilty and claimed to be tried.
3. In course of trial, the prosecution has examined altogether 14 witnesses, namely, P.W. 1-Silwanti Jojo, P.W.2-Sunil Jojo, P.W. 3-Mansidh Jojo, P.W. 4-Beera Jojo, P.W.5-Birsa Jojo, P.W.6-Barna Jojo, P.W. 7-Tulsidas Munda P.W. 8-Dr. Christ Anand Xaxa, P.W. 9-Sukermani Lugun, P.W. 10-Birasmani Jojo, -4- P.W.11 Sukermani Jojo, P.W.12-Piyush Jojo, P.W.13-Bhardul Sharma and C.W.1 Bishram Lugun.
4. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellant proved.
Accordingly, the appellant had been found guilty as such sentenced and convicted vide impugned judgment of conviction dated 21.03.2017 and order of sentence dated 24.03.2017, which is the subject matter of instant appeal.
5. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not?
6. Mr. Rishi Pallava, learned counsel for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:
(I). The conviction is based upon the testimony of two child witnesses, i.e., P.W.10 and P.W.12 but the learned trial Court has not considered the competency of child witnesses, since, no such question has been put in order to assess the competency as to whether the testimony of both the witnesses can be said to be admissible. (II). The blood stain farsa from which, the crime was committed, had been sent to Forensic Science Laboratory, -5- wherein, two reports have come, but it would be evident that blood stain had been found in the tangi, while crime had been committed as per the prosecution version from the farsa and the same is material contradiction but the said aspect of the matter has not been appreciated by the learned trial Court.
(III). The Investigating Officer has also not come out with the fact, from which place the farsa which was used in the commission of crime has been recovered.
Learned counsel for the appellant has advanced his argument on the aforesaid premise that the impugned judgment suffers from infirmity and hence, not sustainable in the eyes of law.
7. Per Contra, Mr. Shailendra Kumar Tiwari, learned Addl. Public Prosecutor appearing for the respondent-State has submitted that the testimony of P.W.10 and P.W.12 cannot be discarded due to the reason that the learned trial Court, after examining their competency, as would appear from their deposition itself and thereafter accepted their depositions, in which, they have supported the prosecution version that murder of their parents has been committed by the appellant/accused.
It has further been submitted that the testimony of these two witnesses, i.e., P.W.10 and P.W.12 has been found to be corroborated by the learned trial Court from the testimony of Doctor who had conducted the postmortem as also the FSL report and as such, the conviction cannot be said to be improper, -6- since, the testimony of P.W.10 and P.W.12 has been found to be corroborated with the recovery of blood stain farsa and blood was found to be of male human blood as per FSL report.
It has also been submitted that the witnesses, i.e., P.W.10 and P.W.12 have been considered to be eye witnesses, since, in the night inside the house, the appellant had committed murder by assaulting from farsa and therefore, there is no reason not to disbelieve their testimony, since, the requirement as under
Section 118 of the Evidence Act has duly been followed by the learned trial Court.
Learned Additional Public Prosecutor, in the aforesaid premise, has submitted that the impugned judgment of conviction and order of sentence suffers from no infirmity.
8. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court.
9. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimony of prosecution witnesses.
P.W.1-Silwanti Jojo, P.W.2-Sunil Jojo, P.W.4-Beera Jojo, P.W.5-Birsa Jojo and P.W.6-Barna Jojo, have been declared hostile by the prosecution.
P.W.3-Mansidh Jojo, in her examination-in-chief has deposed that on the date of occurrence, the daughter of deceased persons, namely, Phool Mani came to meet her -7- parents but she had seen the dead bodies of her parents and then she came and informed him about the occurrence.
P.W.7-Tulsidas Munda, is the Investigating Officer of the case who in course of his investigation recorded the statement of the concerned witnesses in the case diary, inspected the place of occurrence, sent the dead bodies for postmortem, received the postmortem reports and submitted charge-sheet against the accused person.
He has stated that he did not mention the name of the Doctor in the charge-sheet nor the inquest reports are available in the case diary. During his evidence, he has proved the fardbeyan and its registration as Ext.1, Formal FIR as Ext.2 and the seizure list as Ext.3.
In para-3 of his cross-examination, he has stated that the seizure list has been produced in Girda O.P., but whether it has been produced by the accused is not mentioned.
But perusal of seizure list (Ext.3) transpires that the same bears the thumb impression of the accused/appellant who produced the seized iron farsa before the police and the same also corroborates the prosecution case.
P.W. 8-Dr. Christ Anand Xaxa, who has conducted the postmortem examination on the dead body of Bhadwa Jojo and found the followings:-
General Examination:-Rigor mortis present both upper and lower limbs, decomposition not present, both eyes closed, mouth also closed.-8-
External injuries:-(i) Sharp cut injury present right side of face extending from lateral side of eye upto the mid part of lower jaw-5" x 1" x bone deep with fracture of maxillary bone and right side of mandible.(ii) Sharp cut injury present right side of neck extending mid part of the jaw upto the occipital bone-6" x 2" x muscle and bone deep upto the cervical spine-3" x ½" x muscle deep.
Internal Examination:-After opening the skull there is fracture of right temporal bone and haematoma present between the brain matter and meninges and in the cranial cavity. Both sides of lungs were pale, heart chamber was containing blood on right side, left side empty, stomach containing undigested food with gas, small intestine containing digested food with gas, large intestine containing fecal matter with gas, urinary bladder was empty, liver, spleen and kidney were pale.
The Doctor has stated that all the above mentioned injuries were ante mortem in nature and weapon used was heavy and sharp cutting object and cause of death has been opined by the Doctor due to cardio respiratory arrest caused by head injuries.
On the same date, the Doctor conducted the postmortem examination on the dead body of Sugi Jojo and found the followings:-
General Examination:-Rigor mortis present both upper and lower limbs, decomposition was not present.
External Injuries:-(i) A sharp cut injury present left side of face extending from left side of frontal bone upto the mid part of -9- left jaw including maxillary area with compound and commuated fracture of maxillary bone including left side of the mid part of jaw. (ii) Sharp cut injury present left temporal region-3" x ½" x bone deep.
Internal Examination:-After opening the cranial cavity there was fracture of temporal bone with hematoma present between meninges & brain matter, blood containing in cranial cavity, both sides of lungs were pale, heart chamber containing blood in left side, right side was empty, stomach containing undigested food, rice and vegetables with gas, small intestine containing the digested food with gas, large intestine containing fecal matter with gas, urinary bladder was empty, uterus not gravid, liver, spleen and kidney were pale.
The Doctor has stated that all the above injures were ante mortem in nature and weapon used was heavy and sharp cutting object and cause of death has been opined by the Doctor to be due to cardio respiratory arrest due to head injury.
During his evidence, he proved the postmortem reports as Ext.-4 & 4/1 respectively.
In para-3 of his cross-examination, he has stated that he cannot say the exact measurement of the weapon and nature of weapon may be more than half Kg.
P.W. 9-Sukermani Lugun, mother-in-law of the deceased, namely, Bhadwa Jojo stated in her examination-in-chief that on the information of her grand-son, namely, Fulman that her son- in-law (damad), namely, Bhadwa Jojo and daughter, namely,
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Sugi Jojo had been killed, she went at the place of occurrence and saw the dead bodies of the deceased persons. At this stage, she has been declared hostile by the prosecution and she denied of recording of her statement by the Police in course of investigation.
In her cross-examination, she stated that she is adducing her evidence voluntarily.
P.W.10-Birasmani Jojo, a child witness, daughter of deceased persons has stated in her examination-in-chief that on the date of occurrence she along with her parents was sleeping in her house but in the meantime, the accused armed with tangi cam there and killed her parents. She raised alarm and her parents sustained injuries and blood started flowing and after half an hour, her parents died. She has identified the accused in the dock.
In para-3 of her cross-examination, she has stated that the accused is her uncle In para-4 of her cross-examination, she has stated that previous dispute was there in between both the sides.
In para-5 of her cross-examination, she has stated that at present she is living with her maternal aunty (mausi) in another village and today, she has come in the Court along with her mausi.
P.W.11-Sukermani Jojo @ Sunita Jojo, another daughter of deceased persons appeared in the Court but she was not competent to adduce her evidence.
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P.W.12-Piyush Jojo, another child witness and son of the deceased persons has stated in his examination-in-chief that on the date of occurrence, he was sleeping with his parents in home and in the night, the accused armed with tangi came there and killed his parents who sustained injuries near eyes and his parents died on the spot. He has identified the accused in the dock.
In para-3 of his cross-examination, he has stated that the occurrence occurred at about 9.00 o'clock night and on the next morning at about 6.00 o'clock, he woke up but till then her parents had died.
In para-4 of his cross-examination, he has stated that today he came in the Court to adduce his evidence along with his mausi and the occurrence has not been narrated to him by his mausi.
P.W.13-Bhardul Sharma, a local A.S.I. during his evidence produced and proved the following material exhibit returned after FSL test in sealed condition and sealed pack opened in presence of learned counsel of both the sides, i.e., one iron farsa with bamboo cane as material Ext.-I. During his evidence he has proved the chalan and forwarding letter relating to said material exhibit as Ext.6 & 6/1 respectively.
C.W.1-Bishram Lugun, the informant has stated and supported the factum of the occurrence in his examination-in- chief that the deceased persons were his brother-in-law and
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sister and on receiving telephonic information that both the deceased had been killed with farsa, he came in Girda O.P. and saw the dead bodies in the Police Station but who had killed the deceased persons is not known to him or no motive of occurrence is not known to him and thereafter, his fardbeyan was recorded by the local police over which he put his signature.
During his evidence, he has proved his signature on fardbeyan as Ext.7 and at this stage, this witness has been declared hostile by the prosecution and denied of recording of his further statement by the Police in course of investigation of the case.
In para-2 of his cross-examination, he has stated that the Police obtained his signature on a blank paper and not on the fardbeyan.
In para-3 of his cross-examination, he has stated that the accused is innocent and in para-4, he has stated that he is adducing his evidence voluntarily without any fear and the occurrence was not disclosed to him by his maternal nephew (bhagina), namely, Piyush Jojo.
But perusal of deposition of this witness proves that on telephonic information, he came at the place of occurrence and saw the dead bodies of both the deceased persons, namely, Bhadwa Jojo and Sugi Jojo, his brother-in-law and sister respectively.
10. The learned trial Court, on the basis of oral as well as documentary evidence available on record, passed the
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impugned judgment of conviction and order of sentence, which is the subject matter of instant appeal.
11. This Court, after having considered the testimony of witnesses is now proceeding to consider the argument advanced on behalf of the parties and before considering the legality and propriety of the impugned judgment, deems it fit and proper to refer the requirement which is to be followed by the learned trial Court before permitting the child witness for examination or for accepting the testimony, as provided under Section 118 of the Evidence Act, for ready reference, Section 118 of the Evidence Act is being referred as under:-
"118. Who may testify.--All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation.--A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
12. The Hon'ble Apex Court has also interpreted the issue of reliability of testimony of child witnesses, as has been held in the judgment rendered in the case of Virendra alias Buddhu & Anr. Vs. State of Uttar Pradesh [(2008) 16 582], relevant paragraph of which is quoted as under:
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19. A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.
20. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows :
(SCC p. 343, para 5) "5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
21. Subsequently, in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] wherein one of us (Dr. Arijit Pasayat) was a member the Bench held that (SCC p. 67, para 7) though "[t]he decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination
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which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath." but"[t]he decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous".
The Bench further held as under: (Ratansinh case [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC p. 67, para 7) "7. ... This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness."
Further, the Hon'ble Apex Court in the judgment rendered in the case of Nivrutti Pandurang Kokate & Ors Vs. State of Maharashtra [(2008) 12 SCC 565], wherein at paragraph 10, it has been held as under:
10. "6. ... The Evidence Act, 1872 (in short „the Evidence Act‟) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease--whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to
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understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States [40 L Ed 244 : 159 US 523 (1895)] . The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana v. State of Karnataka [(2001) 9 SCC 129 : 2002 SCC (Cri) 413].)
7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 : 1997 SCC (Cri) 685] it was held as follows : (SCC p. 343, para 5) "5. ... A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.‟ The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established
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principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." The above position was highlighted in Ratansinh Dalsukhbhai Nayak v. State of Gujarat [(2004) 1 SCC 64 : 2004 SCC (Cri) 7] , SCC pp. 67-68, paras 6-7. Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference. It is, thus, evident from the testimony of child witness is not to be discarded if the requirement as stipulated under the statutory command as under Section 118 of the Evidence Act, has been followed by the learned trial Court.
13. This Court, in the aforesaid legal premise, is now proceeding to examine the arguments advanced on behalf of the learned counsel for the appellant, as to whether the testimony of P.W.10 and P.W.12 can be said to be inadmissible.
Admittedly, on the date of occurrence, P.W.10 was aged about 5 years, while P.W.12 was having the age of 7 years and both were the daughter and son of the deceased parents respectively.
It is evident from the prosecution version that P.W.10 and P.W. 12 were sleeping in the night along with their parents and the appellant entered in the house and given blow from farsa, due to which, they had died at the spot.
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P.W.10 and P.W. 12 had been taken by their mousi (maternal aunt) and thereafter, FIR was instituted.
The Police has investigated, prepared the inquest report and farsa by which assault was given stained with blood, had been sent to Forensic Science Laboratory.
The Forensic Science Laboratory had sent the report wherefrom, it is evident that the blood stain which has been found in the farsa, was of male. However, so far as the second report is concerned, no specific report has come due to degrading of the sample, for ready reference, the FSL report is being referred as under:-
"Description of articles contained in the parcel The packet marked-'A' contained one FARSA with wooden handle. The FARSA blade measured about 19.0 cm and wooden handle about 91.0 cm. It bore reddish brown stains over large areas.
Result of examination
1. Blood has been detected over large areas in the exhibit marked-'A'.
2. Serological report on origin etc of blood would follow.
3. DNA profiling report on sex of blood would follow. Description of articles submitted for Serological Examination Description of articles - Swab from FARSA, Nature of stains-Blood, Exhibit marked-A. Results of the Serological Examination
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Exhibit marked- A, Nature of stains - Blood, Origin- Human, Group-A. (II) That the FSL test report (Ext.-5) further shows dispatch of one parcel through the Special messenger and content has been mentioned in the report from I.G. (Biological examination). Description of the source of exhibit.
1. Swab from the blood stained FARSA Marked- A. Results of Examination Report Method-
1. Exhibit marked-A (Source: Swab from blood stained FARSA) was subjected to Organic Extractions Method for DNA isolation
2. The Exhibit marked-A (source: Swab from blood stained FARSA) yielded highly degraded DNA.
3. The degraded DNA extracted from the Exhibit marked-A (source: Swab from blood stained FARSA) was subjected to multiplex PCR reaction for co-amplification of 15 autosomal STR loci and amelogenin gender locus using Amp FISTR Identifiler Kit.
4. The degraded DNA extracted from the Exhibit marked-A (source: Swab from blood stained Farsa) was also subjected to co-amplification of 08 autosomal-STRS Microsatellite loci using AmpFISTR Minifiler kit.
5. The amplified products along with controls were run for electrophoresis on the Automated DNA Sequencer 3130 (ABI). The sizing of fragments were carried out using Gene Mapper ID software V3.2 with respect to Gene Scan 500 Liz size standard.
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6. The resultant allelic distributions (genotypes) for the studied loci in the exhibit is shown in the table as under:
Table No.1 Genotype (distribution of alleles) of different loci of the DNA extracted from the exhibit marked-A using Identifiler Kit.
Sl. No. Name of Loci Exhibit marked-A (Source:Swab from blood stained FARSA)
1. D8S1179 N.A.
2. D21S11 N.A.
3. D7S820 N.A.
4. CSF1PO N.A.
5. D3S1358 N.A.
6. THOI N.A.
7. D13S317 N.A.
8. D16S539 N.A.
9. D2S1338 N.A.
10. D19S433 N.A.
11. VWA N.A.
12. TPOX N.A.
13. D18S51 N.A.
14. D5S818 N.A.
15. FGA N.A.
16. Amelogenin N.A. Table No.2 Comparative Chart of allelic distribution of 08 autosomal-STR loci using Minifiler Kit.
Sl. No. Minifiler Loci Exhibit marked-
1. D13S317 10, 11
2. D7S820 8, 11
3. D2S1338 19*, 20, 23
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4. D21S11 29, 34.2
5. D16S539 10, 12
6. F18S51 13, 14*,16
7. CSF1PO 10, 12
8. FGA 21, 23
9. Amelogenin X, Y
Observations:
1. Highly degraded Human DNA could be recovered from the Exhibit marked-A (source: Swab from blood stained FARSA)
2. Partial DNA Profile of a human made could be generated from the DNA extracted from the Exhibit marked-A (source: Swab from blood stained FARSA).
Conclusion:
1. The DNA test performed on the exhibit noted above is sufficient to conclude that the blood found on the Exhibit marked-A (source: Swab from blood stained FARSA) is from a human male source of origin.
2. Opinion on other points is not possible as the DNA extracted from the Exhibit marked-A (source: Swab from blood stained Farsa) was highly degraded. Hence, the FSL test report (Ext.-5) appears to this court in consonance with the prosecution case."
It further requires to refer herein that the Doctor who had conducted the postmortem, has given opinion of cause of death due to assault given by hard and sharp cutting weapon.
The Investigating Officer has investigated the case and found the dead bodies inside the room at the place of occurrence, which is substantiated, as per the version of P.W.10 and P.W.12.
The inquest report was prepared. The seizure list was also prepared seizing the farsa, wherein, the LTI of the appellant/accused was taken.
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14. It requires to refer herein that the recovery of farsa which has been marked as Ext.3, will be said to be in admission, since, there is no objection on behalf of the defence regarding Ext.3.
15. This Court is now proceeding to assess, the testimony of child witnesses by taking into consideration the testimony of other witnesses.
16. The foremost objection has been raised that the competency of P.W.10 and P.W.12 has not been considered and therefore, their testimony cannot be said to be admissible.
17. This Court in order to scrutinize the aforesaid ground has considered the testimony of P.W.10 and P.W.12 wherefrom, it has found that the test of the competency has duly been followed by the learned trial Court and after being satisfied with the answer of P.W.10 and P.W.12, there depositions were recorded.
P.W.10 and P.W.12 consistently have supported the prosecution version and even they remained consistent in the cross-examination.
It appears from para-6 & 4 of cross-examination of P.W.10- Birasmani Jojo and P.W.12-Piyush Jojo respectively, wherein, they have specifically deposed that they had not been tutored by their Mausi (maternal aunt), rather, they had seen the occurrence.
It further appears that the defence has not cross-examined these two witnesses in order to justify that they are not competent witnesses, since, no specific question has been
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asked in the cross-examination from them to suggest that P.W.10 and P.W.12 are not the competent child witnesses.
18. Section 118 of the Evidence Act stipulates the process to be followed by the trial Court before acceptance of testimony of child witnesses, which has been interpreted by the Hon'ble Apex Court in the judgment as referred hereinabove.
It is evident from the facts of the given case so far as the competency of P.W.10 and P.W.12 are concerned, according to our considered view, it cannot be said that P.W.10 and P.W.12 are not the competent witnesses.
Moreover, their testimony have been found to be in corroboration with the testimony of Doctor who had found the injury as per the description of P.W.10, who has said that the appellant had given the assault just near the eye and as would appear from the injury report given by P.W.8, the Doctor that the injury has been found near the left eye and therefore, the fact about giving assault by the appellant upon the deceased is being found to be corroborated with the testimony of the Doctor.
The aforesaid version has also been found to be in corroboration with the FSL report and the seizure of farsa which has been accepted by the appellant, since, in the seizure memo, the left thumb impression of the appellant has been taken and seizure list has been marked as Ext.3 without any objection.
19. Although, in this case, the informant has become hostile but that will not vitiate the prosecution version of child eye witnesses, i.e., P.W.10 and P.W.12, and as such, their
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testimonies have been relied upon by the learned trial Court after scrutinizing their competency as per the discussion made hereinabove.
On consideration of the aforesaid fact that the informant has become hostile, therefore, the testimony of child eye witnesses, i.e., P.W.10 and P.W.12, cannot be discarded.
20. Statement of appellant recorded under Section 313 Cr.P.C. has also been perused.
21. Although, in the statement recorded under Section 313 Cr.P.C., the appellant has denied the allegation leveled against him, but, as per the testimony of child eye witnesses, i.e., P.W.10 and P.W.12, the learned trial Court has discarded the statement of the appellant made under Section 313 Cr.P.C., which cannot be said to suffer from infirmity.
22. This Court, on the basis of the discussion made hereinabove and after going through the judgment passed by the learned trial Court which is impugned herein, is of the view that the learned trial Court by accepting the version of P.W.10, namely, Birsamani Jojo and P.W.12, namely, Piyush Jojo having found to be in corroboration with the FSL report and the testimony of Doctor, has found the charge proved beyond all shadow of doubts and accordingly, convicted the appellant, which according to our considered view, cannot be said to suffer from an error.
23. In the result, the instant appeal fails and is dismissed.
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24. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated: 18th July, 2023.
Rohit/-A.F.R.