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2019 Supreme(All) 1595
IN THE HIGH COURT OF ALLAHABAD
Pritinker Diwaker, Raj Beer Singh, JJ.
Dinesh - Appellant
Vs.
State Of U.P. - Respondent
Criminal Appeal No. 1335 of 1988
Decided On : 20-09-2019
Amit Tripathi, Adv., Vishesh Kumar, Adv., J.K. Upadhyay, Adv.
The competency and reliability of child witnesses and the need for close scrutiny of their testimony.
Headnote:
IPC - Murder - Section 302/34 - Summary: The court affirmed the conviction of the accused-appellants for the murder of the deceased. The deceased stood as a surety for one of the appellants, and when he continued to commit crimes, the deceased warned him of withdrawing as his surety, leading to the appellants' animosity. The incident was witnessed by the deceased's sons, and the court found the child witness to be competent and reliable. The court emphasized the competency of child witnesses and the need for close scrutiny of their testimony. The court dismissed arguments regarding the alleged ante-dating of the FIR and discrepancies in the spot map, affirming the trial court's judgment.
Fact of the Case:
The deceased stood as a surety for one of the accused, and when the accused continued to commit crimes, the deceased warned him of withdrawing as his surety. The accused, annoyed with the deceased, committed his murder with the help of other co-accused. The incident was witnessed by the deceased's sons.
Finding of the Court:
The court affirmed the conviction of the accused-appellants for the murder of the deceased, emphasizing the competency and reliability of the child witness and dismissing arguments regarding the alleged ante-dating of the FIR and discrepancies in the spot map.
Issues: Competency of child witness, alleged ante-dating of the FIR, discrepancies in the spot map
Ratio Decidendi: The court emphasized the competency of child witnesses and the need for close scrutiny of their testimony. The court dismissed arguments regarding the alleged ante-dating of the FIR and discrepancies in the spot map, affirming the trial court's judgment.
Final Decision: The appeal was dismissed, and the appellants were directed to serve the remaining sentence. The trial court's judgment was affirmed.
JUDGMENT:
Pritinker Diwaker, J.
This appeal arises out of the impugned judgement and order dated 03.05.1988 passed by II Additional District & Sessions Judge, Kanpur Dehat in Sessions Trial Nos. 50 of 1985 (State Vs. Dinesh) and 104A of 1985 (State Vs. Surendra Singh), convicting the accused-appellants under Section 302/34 of IPC and sentencing them to undergo imprisonment for life.
2. In the present case, name of the deceased is Ram Swaroop Tiwari. Deceased stood as a surety for appellant Dinesh but as Dinesh continued to commit crimes, deceased informed him that if he will not make himself correct, in such a condition, deceased would be compelled to get his bail cancelled. Looking to this attitude of the deceased, accused Dinesh got annoyed with him and with the help of co-accused Surendra Singh, Umesh (died during investigation) and Ramesh (absconded during trial), on 03.08.1984 committed the murder of the deceased by causing gun shot and axe injury to him. Incident has been witnesses by Shiv Kant Tiwari (PW-2), a child witness aged eight years (son of deceased), who at the time of commission of offence was with the deceased. Hearing the cries of the deceased, his another son Kamal Kant Tiwari (PW-1) rushed to the spot and saw the accused persons fleeing from the spot. On the written report Ex.Ka.-1 lodged by Kamal Kant Tiwari (PW-1) on 03.08.1984 at 07.45 pm, FIR was registered against four accused persons under Section 302 of I.P.C.
3. Inquest on the dead body of the deceased was conducted, on the same day i.e. 03.08.1984, vide Ex.Ka.4, which started at 09.30 pm and completed at about 11.00 pm and body was sent for postmortem, which was conducted by Dr. Anil Bihari Lal Saxena (PW-7) vide Ex.Ka.15 on 04.08.1984.
As per Autopsy Surgeon, as many as seventeen following injuries were found on the body of the deceased:
"1. An incised wound 12cm x 3cm x brain cavity deep, right side of scalp,3cm above Rt. ear.
2. An incised wound 9cm x 3cm x bone deep cut on posterior side of scalp,1= cm behind right ear temporal bone fractured.
3. An incised wound 8cm x 3cm x bone cut deep on right side face upto right ear, temporal bone fractured.
4. An incised wound 11cm x 4cm x bone cut on rt. side neck extended above upto the scalp behind the ear-temporal bone fractured.
5. An incised wound 6cm x 2= cm on the rt. side neck just below the injury no. 4.
6. An incised wound 27cm x 5= cm x bone cut posterior and left side of neck, occipetal bone and vertebra upper fractured.
7. An incised wound 10cm x 2= cm x muscle deep on the upper part of back just below the root of neck.
8. An incised wound 8cm x 1= x muscle deep on the back of right shoulder.
9. An abrasion-contusion 5= cm x 3= cm on the back of right shoulder just below on injury no. 8.
10. An incised wound 4 cm x 1= cm x muscle deep on the epigastric fossa.
11. An incised wound 10 cm x 3= cm x muscle deep on ventral aspect of rt. hand forearm in its middle part.
12. A gun shot wound of entry 4 cm x 3= cm x through and through on the dorsal aspect of right forearm,8 cm below the right elbow, margins inverted and ulna bone fractured.
13. A gun shot wound of exit 10 cm x 3 cm x through and through communicating to the injury no. 12 on the ventral aspect of rt. forearm 2= cm above the wrist joint-margins everted and one wadding piece is recovered.
14. A gun shot wound of exit 8 cm x 3 cm x through and through communicating to the injury no. 12 on the medial side of rt. forearm,1= cm away from injury no. 13, margins everted and one wadding piece is recovered from the wound.
15. Multiple gun shot wound of entry in an area of about 20 cm x 6 cm x muscle deep on rt. side of lower part of chest and upper part of abdomen,18 pellets (16 small + 1 big and one broken) recovered from the wound.
16. One gun shot wound of entry 1 cm x 1 cm x through and through 4 cm above the left writ joint on ventral aspect medial side, margins inverted.
17. One gun shot wound of exit 1= cm x 1= cm x through and through communicating to th
