2009 Supreme(SC) 895

2009(3) Supreme 576
SUPREME COURT OF INDIA
S.B. Sinha, Harjit Singh Bedi and Aftab Alam, JJ.
Himmat Sukhdeo Wahurwagh & Ors. — Appellants
versus
State of Maharashtra — Respondent
Criminal Appeal No. 1641 of 2007
Decided on : 01-05-2009

IMPORTANT POINT
Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the Court thinks otherwise.

Headnote:Indian Penal Code, 1860 – Sections 147, 148 and 302 r/w 149 – Prosecution of accused persons eight in number for causing death of three persons by assaulting them with axes and sticks – Acquittal by Trial Court – Appeal – Allowed by High Court convicting accused persons – Appeal – Plea of appellants that S was a mere child of 11 years of age and in running away and hiding himself in the house of A particularly after his father had been brutally murdered, was an unacceptable story – However no merit found in this plea – Perusal of S’s evidence, revealed that he was able to discern between right and wrong and despite a searching cross-examination made by the defence lawyer nothing adverse could be brought out – S testified that he had gone along with the two deceased to the plough fields and while they were returning home, they had been surrounded by all the accused and injuries had been caused to his father and uncle – Accused had let loose a reign of terror and after having killed three persons were still not satisfied and were looking around for other victims from the family – Nothing wrong found if S had thought it fit and prudent to hide himself till coast was clear – S was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness – Murder of N had been witnessed by prosecution witnesses PW 4, PW 5 and PW 6 – Apart from that medical evidence fully supported prosecution’s story – Accused were armed with axes and sticks capable of causing incised and lacerated injuries – Prosecution story, was further fortified by recoveries made from some of accused – Again argument made by defence counsel that there was some delay in the lodging of the F.I.R held insignificant as on no delay was found in the facts of the case – Appeal dismissed. (Paras 10 to 22)

        Evidence Act – Section 118 – Section 118 does not preclude a child from being a witness and the only test that is applicable is as to whether the witness understood the sanctity of an oath and the import of the questions that were being put to him. (Para 13)

       Facts of the Case :

        1. Accused persons eight in number were prosecuted herein in the instant case for causing death of three persons by assaulting them with axes and sticks. Trial Court acquitted accused persons. Appeal thereagainst was allowed by High Court convicting accused persons.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Plea of appellants that S was a mere child of 11 years of age and in running away and hiding himself in the house of A particularly after his father had been brutally murdered, was an unacceptable story. However no merit was found in this plea. Perusal of S’s evidence, revealed that he was able to discern between right and wrong and despite a searching cross-examination made by the defence lawyer nothing adverse could be brought out. S testified that he had gone along with the two deceased to the plough fields and while they were returning home, they had been surrounded by all the accused and injuries had been caused to his father and uncle. Accused had let loose a reign of terror and after having killed three persons were still not satisfied and were looking around for other victims from the family. Nothing wrong found in conduct of S if he had thought it fit and prudent to hide himself till coast was clear. S was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness. Murder of N had been witnessed by prosecution witnesses PW 4 , PW 5 and PW 6. Apart from that medical evidence fully supported prosecution’s story. Accused were armed with axes and sticks capable of causing incised and lacerated injuries. Prosecution story, was further fortified by recoveries made from some of accused. Again argument made by defence counsel that there was some delay in the lodging of the F.I.R was held insignificant as no delay was found in the facts of the case. Appeal was dismissed.

       Result : Appeal dismissed.