Conviction under Section 302 upheld based on credible eyewitness testimony, despite the informant being declared hostile; demonstrates the reliability of child witnesses in criminal proceedings.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. Heard Mr. A.K. Chaturvedi, learned counsel for the appellant and Mr. Pankaj Kumar Mishra, learned Additional P.P.

2. The instant criminal appeal is directed against the judgment and order dated 19/28.04.2003 passed by learned Additional District & Sessions Judge (Fast Track Court No. II), Civil Court, Gumla in Sessions Trial No. 331 of 1993, whereby and whereunder, the appellant has been held guilty and convicted for the offence under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life along with fine of Rs. 2,000/- with default stipulation.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal, as per fardbeyan of Jitiya Singh (P.W.-5) is that on 16.05.1993 at about 10:00 A.M. informant had gone to take bath in a Dandi (small well) situated in the field of Likhan Singh, where he saw Tercha Mahato along with his two sons namely Gandur Mahato (P.W.-7), aged about 10 years and Birbal Mahato, aged about 3 years, who were also present for taking bath. The informant saw that Bahura Mahato after taking bath from the Dandi was standing nearby. It is further alleged that informant was washing his cloths on stone from the water of said Dandi and Tercha Mahato was pulling water from the said Dandi and collecting in a tin container for washing clothes and bath of his children, in the meantime, Bahura Mahato took out baluwa from his clothes and inflicted baluwa blow from sharp side from behind to the Tercha Mahato on his head. Thereafter, 2-3 blows of baluwa were repeatedly inflicted by Bahura upon the body of Tercha Mahato, who fell down into the water and died. On hulla several villagers assembled at the place of occurrence and dead body was taken out from Dandi (small well). It was noticed that Tercha Mahato had sustained cut injuries on his head, right hand, right leg. It is further alleged that Tercha Mahato (deceased) was living as ghardamad at village -Latu Somkana at his father-in-law’s house along with his brother-in-law Gulu Mahato, who was insane. It is further alleged that there was land dispute between deceased and Bahura Mahato. The accused wanted to grab the land of the deceased mother-in-law. Hence, he has committed his murder. The police arrived at the place of occurrence, where fardbeyan of informant was recorded, which is basis of FIR bearing Raidih P.S. Case No. 37 of 1993 dated 16.05.1993 registered for the offence under Section 302 of I.P.C.

4. Charge of investigation was undertaken by S.I. Vijai Kumar Jha (P.W.-9), who after completion of investigation submitted charge sheet against the above named sole appellant for the offence under Section 302 of the I.P.C. After taking cognizance, the case was committed to the court of Sessions, where S.T. No. 331 of 1993 was registered. The appellant denied the charges and claimed to be tried. After conclusion of trial, impugned judgment and order has been passed, which has been assailed in this appeal.

5. Learned counsel for the appellant has stoutly argued that informant of the case (P.W.-5) has become hostile and not supported the prosecution story at all. Admittedly, the son of the deceased was aged about 10 years on the date of occurrence, who was examined after two years and appears to be a tutored witness. The learned trial court has committed serious error of law in placing reliance upon evidence of child witness (P.W.-7), who happens to be son of the deceased. There is no other reliable evidence on record and no incriminating materials like baluwa used in commission of murder has been recovered from the possession of the appellant. The appellant has been falsely implicated in this case due to