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2015 Supreme(J&K) 424
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hasnain Massodi and Janak Raj Kotwal, JJ.
Suresh Kumar – Appellant
Vs.
State of J & K – Respondent
Cr. Appeal No. 16/2010, IA (Cr.) No. 24/2010 and Confirmation No. 08/2010
Decided On : 12-08-2015
For the Appellant :Anmol Sharma, Advocate
For the Respondents: Ravinder Gupta, AAG
The competency of a child witness and the reliability of interested witnesses were central legal points established in the judgment.
Headnote:
Child Witness - Murder - Evidence Act - Section 118, 1977 - Competency of child witness - Child witness found competent to testify - Evidence Act does not prescribe any particular age as a determinative factor to treat a person as a competent witness - Child witness can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto - 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.
Fact of the Case:
The appellant, Suresh Kumar, filed an appeal against the judgment dated 29.06.2010 convicting him under Section 302 RPC and 5/27/30 Arms Act for the murder of Krishan Chand. The prosecution's case was that the appellant, armed with a 12 bore gun, shot the victim from behind, causing his death. The appellant denied the charges and claimed to be tried. The trial court relied on the evidence of the victim's family members, medical evidence, and recoveries of incriminating material to find the appellant guilty.
Finding of the Court:
The trial court found the appellant guilty based on the evidence provided by the victim's family members, medical evidence, and recoveries of incriminating material. The court rejected the appellant's argument that the prosecution had failed to prove the case beyond reasonable doubt and upheld the conviction and sentence.
Issues: The issues in the case included the competency of a child witness, the reliability of the victim's family members as witnesses, the delay in recording statements under Section 161 Cr.P.C, and the motive behind the murder.
Ratio Decidendi: The court held that the child witness was found competent to testify, as there was no specific age requirement for witness competency. The court also ruled that the victim's family members, despite being interested witnesses, were credible and trustworthy. The court did not find the delay in recording statements to be a ground for rejecting the evidence. Additionally, the court found that the absence of a clear motive did not break the link in the chain of circumstances connecting the accused with the crime.
Final Decision: The appeal was dismissed as without merit, and the conviction and sentence recorded by the trial court were upheld. The reference for confirmation of the sentence was answered accordingly.
Janak Raj Kotwal, J.
1. Appellant Suresh Kumar has filed this appeal against Judgment dated 29.06.2010 in File No. 16/Sessions whereby learned Sessions Judge, Reasi has convicted him under Section 302 RPC and 5/27/30 Arms Act and order dated 30.06.2010 whereby he has been sentenced to imprisonment for life in proof of offence under Section 302 RPC and imprisonment for a term of 5 years in proof of offence under Sections 5/27/30 Arms Act. Heard. We have perused the record.
2. Facts of the prosecution case are that on 20.07.2005 in the evening, Krishan Chand (deceased/victim) accompanied by his minor son PW-Sanjeev Kumar had gone for purchasing toffees from shop of PW-Isher Dass falling nearby his house in village, Dhirti, Tehsil, Udhampur. When the victim and his son were returning back to their home after purchasing the toffees, the appellant (accused) fired a shot through his 12 bore SB gun on the victim from behind in his back. The victim fell on the road when the accused fired another shot in his head which ruptured his brain. The victim died on spot. The father of the victim, PW-Badri Nath, lodged written information (Ext.-P1) about the incident at Police Station, Katra at 9 P.M. FIR No. 159/05 under Sections 302 RPC and 3/25 Arms Act was registered and the S.H.O. of the Police Station took up the investigation. The Investigating Officer (I.O.) proceeded to the place of occurrence, prepared the crime scene report 'Report Marg' (Ext. P-38/5) took charge of the dead body of the victim and dispatched it for postmortem. He seized pure earth, blood stained earth, one spent cartridge of a 12 bore gun bearing inscription'--No. 309YOM, 65mm, 12--'and one 'Datta' (air cushioning wad) of a cartridge from the crime scene and sealed them under marks 'A', 'B', 'C' and 'D' respectively. He prepared sketch map of the place of occurrence (Ext. P-38/1). In the course of further investigation the I.O. arrested the appellant (accused) on 21.07.2005. On 23.07.2005, the I.O. recorded disclosure statement (Ext.-P 15-I) of the accused, which lead to discovery of the weapon of offence, a 12 bore gun (SB No. 17909-95) with a spent cartridge bearing No. 309YOM, 65 mm--'in its barrel, which were seized vide seizure memo (Ext.-P 15-II). The I.O. also seized 12 pallets and one 'Datta' which were found inside the dead body of the victim by the Doctors while performing the postmortem and recorded statements of the witnesses under Section 161 Cr.P.C.
3. The I.O. after investigation found that the informant PW-Badri Nath, and Ram Saran, the grandfather of the appellant (accused), were neighbours and related as cousins in brotherhood. They were nourishing enmity for 8/9 years on account of right to way and water and because of that enmity, the two sides used to quarrel with each other, they were not on talking terms and the appellant had threatened the informant that he will kill his son. In sequel to this enmity the accused shortly before the incident had got himself appointed as retainer of the licensed gun of his grandfather and was in lookout for eliminating the victim. On 20.07.2005, the appellant armed with the said gun had follow the victim to the shop and shot him dead when he accompanied by his son was returning home after purchasing toffees from the said shop.
4. On completion of investigation the S.H.O., Police Station, Katra/I.O. preferred Charge Sheet under Sections 302 RPC & 5/27/30 Arms Act against the accused in the committal court of learned Chief Judicial Magistrate, Udhampur. The case, after committal, came up for trial before the learned Sessions Judge, Udhampur and later was transferred to the Court of learned Sessions Judge, Reasi.
5. Learned trial court after examining the charge sheet and record of the case framed charges under Sections 302 RPC & 5/27/30 Arms Act against the appellant (accused) on 28.01.2006. The appellant denied the charges and claimed to be tried. Prosecution thus, entered its evidence and examined as many as
