Point of Law: Murder - Testimony of sole child witness - There is no age limit fixed for a person to be a competent witness. A child of tender age can also be a competent witness.

JUDGMENT :

P.J. Saikia, J.

Heard the learned Amicus Curiae, Mr. B.C. Das appearing for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor for the State of Assam.

2. This is an appeal under section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 25.09.2017 passed by the learned Sessions Judge at Karimganj in Sessions Case No. 108/2015 convicting the appellant under Section 302 of the Indian Penal Code and was sentenced to imprisonment for life and to pay a fine of Rs. 30,000/-, in default of payment of fine, RI for another six months.

3. On 31.10.2013 the informant Jaharul Islam had lodged an FIR alleging that while his sister Sultana Begum had gone to fetch water from the nearby rivulet, the appellant stabbed her with a knife, for which the woman died. The informant had disclosed in the FIR that the son of the deceased pulled her body out of the water and informed him about the occurrence.

4. On the basis of the said FIR, police registered the Bezaricherra P.S. Case No. 169/2013.The dead body was sent for post mortem examination. The post mortem report goes like this---

“An average built female aged about 30 years, whose rigor mortis was present, eyes closed, mouth closed. A fresh sharp cut wound was present over the left side of the chest below the 5th rib measuring about 2” X 1”. Blood clot was seen in the wound. No other fresh injury was seen on her body. Pallor was noted on the whole body.

CRANIUM AND SPINAL CORD :

Scalp, skull and vertebrae, membrane were pale. Brain was also pale.

THORAX : Ribs, walls and cartilages as described; plurae, larynx and trachea, both the lungs were found to be pale.

PERICARDIUM : Haemopericardium with cardia temponade noted.

IN THE HEART : Sharp cut injury noted in the right ventricle. Heart was contracted. The left ventricle showed few clotted blood.

VESSELES : Few small amount of blood clot is seen in the major vessel.

ABDOMEN : Wall is pale, peritoneum is pale, mouth, pharynx and his figures are pale, stomach pale and empty, small intestine also pale and empty, large intestine is also pale and contains faecal matters.

Belly were the spleen and the kidneys are pale.

BLADDER Pale and empty; organs of external and internal GENITALIA also pale and normal.

The injury described earlier was ante mortem.

IN MY OPINION : Death was due to hemorrhagic shock due to cardiac tamponade resulting from the shop injury sustained.”

5. On conclusion of investigation, police filed the charge-sheet against the appellant and four others.

6. The trial court framed the charges under Section 120(B)/302 of the Indian Penal Code against the present appellant and the other four. During the trial, the prosecution side examined 12 (twelve) witnesses. All the accused persons were examined under Section 313 of the CrPC. The accused persons were asked whether they would adduce defence evidence and they declined to adduce evidence. Therefore, after hearing the argument, the impugned judgment was delivered. By the impugned judgment, except the present appellant, other accused persons were acquitted.

7. We have gone through the impugned judgment.

8. The first witness to be examined by prosecution is Badrul Islam. He was 12 years old when he adduced evidence on 18.05.2016. This witness is the son of the deceased. He has stated in his evidence that while his mother had filled water on the pot from the bank of the river, suddenly the appellant appeared there. The witness stated that by putting a knife on the neck of his mother, the appellant was dragging her by holding her head. The witness disclosed that the appellant stabbed her mother with a dagger on the left side of her chest. According to Badrul Islam, he started to raise hue and cry over the incident and also pulled out his mother from the river. The witness further stated that by that time, his younger brother Tahirul Islam (PW-8) had arrived there. Badarul Islam and PW-8 rushed to the house of the informant (PW-2)

9. The PW-