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2003 (2) Crimes 358
Patna High Court (DB)
Anil Kumar Sinha & Bal Krishna Jha, JJ.
Md. Asgar & Anr. —Appellants
versus
State of Bihar —Respondent
Crl. Appeal No. 552 of 1997
Decided on 28-11-2002
Counsel for the parties:
For the Appellants :Dr. Amrendra Kumar, Advocate.
For the State :Mr. D.N. Bandhu Singh, Advocate.
Important Point
Evidence of child witness should be considered with caution as there are chances of tutoring, but conviction can be based on such testimony if court finds evidence trustworthy.
Headnote:Indian Penal Code, 1860 — Sections 376 and 302/34 — Informant, daughter of deceased, on hearing groaning sound from the room where deceased was sleeping woke up and saw appellants coming out of room — Body of deceased, half naked, was seen hanging — Brother of informant aged 7 years and other sister aged 10 years were also witnesses of those facts — Conviction recorded by trial court for offence of rape and murder — Appeal — Infor-mant was not examined during trial as she was stated to have been kidnapped by Men of accused — Evi-dence of child witnesses — Has to be considered with caution as there could be chances of tutoring — Con-viction can be based on testimony of child witness if it is trustworthy — Statement of witnesses found quite natural and consistent — No reason why they would falsely depose against appellant — Witnesses saw signs of semen on private part of deceased and though no spermatoza was found by doctor, case could not be disbelieved — Conviction was lia-ble to be upheld. (Paras 11, 12, 17 & 18)
Result: Appeal dismissed.
Judgment
A.K. Sinha & B.K. Jha, JJ.— This appeal has been directed against the judgment and order of conviction and sentence passed by the IInd Additional Sessions Judge, Begusarai, in Sessions Case Nos. 104 of 1997/35 of 1997 whereby and whereunder both the appellants have been convicted under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and they have further been convicted under Section 376/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each. Both the sentences were directed to run concurrently.
2. Fardbeyan of the informant Mithlesh Kumari was recorded on 22-4-1996 at 2.00 a.m. and the prosecution as un-folded in the Fardbeyan is that the informant alongwith her brother Nanda Sah aged 7 years and sister Rupan Kumari aged 10 years were sleeping in the outer room of the house and their mother Parvati Devi, deceased was sleeping on cot in the inner room. At about 11.30-12.00 p.m., the informant heard some groaning sound coming out from the room of her mother and so she woke up and went inside her mother’s room to see as to what is happening inside. In the meantime, the informant saw Md. Anwar, Md. Asgar and Singheswar Choudhary coming out from the room of her mother. The informant identified them in the electric light as also in the light coming from the Petrol Pump situated besides her house. When the informant went inside the room of her mother, she saw that her mother is hanging and she was dead, She also noticed that she was in half naked position and semen was coming out from her private part. The infor-mant, therefore, suspected that the above named three accused committed rape with her mother and also mur-dered her by hanging her. The informant has alleged that while leaving the house the appellant Md. Asgar assaulted her with danda causing injury on her finger and all of them threatened her that if she discloses their names to any anyone she will also meet the same fate.
3. The Fardbeyan was recorded by Sub-Inspector Jagdish Jha (PW 8) at 2.00 a.m. i.e. after 2-2 1/2 hours of the alleged occurrence. A case under Sections 302, 376/34 of the Indian Penal Code was registered against all the three accused named in the Fard-beyan and the police submitted charge-sheet under the aforesaid counts on the basis of which cognizance was taken and the case was committed to the Court of Sessions.
4. All the three accused were charged under Sections 376/34 of the Indian Penal Code as well as 302/34 of the Indian Penal Code, to which they pleaded not guilty.
5. The case of the defence is that the accused persons have been falsely implicated in this case as the deceased was a lady of loose character and outsiders used to visit her house which was protested by the accused persons so, due to this reason they have been falsely implicated.
6. It may be stated at the outset that accused Md. Anwar was acquitted of the charges for lack of evidence on the point of identification.
7. In order to prove the charges the prosecution examined as many as eight witnesses.
8. PW 5 Dr. Ashok Kumar Sharma is the doctor, who conducted postmortem examination on the dead body of the deceased on 22-4-1996 at 10.40 a.m. and found the following ante-mortem injuries on the person of the deceased.
“Deep legature mark at supra hyoid region 1/2” deep 3/4" wide extending post auricular region more on left side.
9. In the opinion of the doctor, death was caused due to asphyxia by hanging, The age of the injuries was between 6-24 hours from the time of the post-mortem examination. PW 5 has stated that he did not find any bruise or abrasion on the private part and the vaginal smear was sent for examination to Dr. A.K. Jha, who submitted his report stating that no spermatozoa was present in the vaginal smear. In his cross-examination PW 5 has admitted that he did not find any bruise or abrasion or any blood mark or fluid coming out from the nose or ear of the deceased
