- (1.) FOR the murder of Mst. Koyali, the learned Sessions Judge, Jhun-jhunu, has convicted Teja appellant under sec. 302, I. P. C. , and sentenced him to undergo imprisonment for life. He has come up in appeal.
(2.) IN village Mahrampur, police station, Chirawa, lived the widow of Pokar, Mst. Koyali, aged about 30 years, Pokar had died sometime in 1961. IN the morning of February 1, 1967, Teja made a first information report (Ex. P. 15) in the police station, Chirawa, to the effect that Mst. Koyali was on terms of intimacy with him but later to his chagrin he was displaced by Malaram Jat for whom she developed affection. On the night intervening January 31 and February 1,1967, Teja said, he murdered Mst. Koyali in her room by means of a 'gandasi' (axe ). A small boy Harlal was also in the room at that time. Teja further said that he went to Malaram's house thereafter and did him to death by the same 'gandasi', Shri Narain Singh, Station House Officer, Chirawa, recorded this first information report and finding that Teja was wearing a Dhoti and a shirt, both of which were blood stained, he recovered these clothes in the presence of Motbirs and arrested him. Teja also informed the Station House Officer that he had concealed the 'gandasi' below Malaram's cot in his house which he was prepared to get recovered. Taking Teja and Dr. Girdhar Bhomia, Medical Officer, Chirawa, with him in a Jeep, Narain Singh started for the scenes of the occurrences. When jeep reached near Kabutar Khana in Chirawa, Mahabir son of Deburam and Naurang-ram met the Station House Officer and presented a report (Ex. D. 6) which merely mentioned the fact that 2 murders had taken place in village Maharampur without giving the name of the offender. Teja got the 'gandasi', Ex. 1, recovered from beneath the cot on which Malaram lay and delivered it to Narain Singh. He went to the 'khuddi' (Cachcha room) of Mst. Koyali, and got the inquest report Ex. P. 5 prepared recovered the blood-stained clothes from her corpse and sealed them. Dr. Bhomia performed the postmortem examination on the body of Mst. Koyali and found the following injuries: 1. INcised wound 4"x3''x2" on the scalp, left side. 2. INcised wound with cutting of the left ear, upper and lower part, 6"x3"xl", on the left temporal region. 3. INcised wound 6"x4"x5" on left side of the neck, and all the vital organs cut off. 4. INcised wound 3"x3"x2" at the root of the neck, anteriorly with cutting traches in two parts. 5. INcised wound 6"x4"x2" at the neck anteriorly on the thyroid bone, and thyroid apparatus cut off. 6. INcised wound 6"x2"x4" on posterior chest-wall, with visual lung and broken ribs. 7. INcised wound 3"x3"x2" on left side of the scapula posteriorly. 8. INcised wound 3"x5"x2" at the base of the neck, posteriorly. 9. INcised wound 4"x2"2x" on the left shoulder. 10 INcised wound 3"'x2"x2" on anterior side of the right elbow. 11. Lacerated wound l"xl-1/2" on the base of the left hand, index finger, laterally. 12. INcised wound 4"x3"x2" on posterior side of upper chest, mid-line. 13. Chest-wall posteriorly multiple injuries, incised wounds, with the fracture of upper third, fourth, fifth and sixth ribs at posterior side. 14. Pleura INjured at multiple places with blood stains. 15. Trachea separated at the root of neck, as mentioned above. 16. Right lung incised wounds present at 4 places, with congestion. 17. Left lung incised wounds present at 4 places, and stained with blood. 18. Large-vessels both side internal carotid artery cut down at the root of neck. " The Doctor expressed the opinion that the injuries were ante-mortem and injuries Nos. 1 to 7, and 13 to 18 were grievous. Death was due to the grievous injuries to the vital organs, such as, brain, blood-vessels, trachea and resultant severe haemorrhage. The injuries were sufficient in the ordinary course of nature to have caused the death of Mst. Koyali. Having completed the investigation, a report was submitted by the police to the Munsiff Magistrate. Chirawa, against Teja and Sukhdeva for the murders of Malaram and Mst. Koyali. After preliminary inquiry under sec. 207-A. Cr. P. C. , the learned Magistrate discharged both the accused persons in regard to the murder of Malaram, but committed both of them to face their trial before the learned Sessions Judge, Jhunjhunu, in regard to the murder of Mst Koyali. The learned Public Prossecutor moved the Sessions Judge to frame a charge against these persons in regard to the murder of Malaram, but he declined to do so. The matter came up to this Court but without any success and we need not say anything further about Malaram's murder The prosecution examined 11 witnesses to support the case that Teja and Sukhdeva had murdered Mst. Koyali in her 'khuddi' on the night intervening January 31 and February 1, 1967 and the deed was witnessed by Harlal, a boy who was sleeping in that 'khuddi'. The plea of the accused was one of alibi and he examined 2 witnesses in defence. The learned Sessions Judge found that Teja was guilty of murder of Mst. Koyali but the case against Sukhdeva was not proved. He accordingly acquitted Sukhdeva, but convicted Teja by his judgment dated November 20, 1968, and sentenced him as indicated above. From the evidence of Dr. Girdhar Bhomias, it is proved beyond doubt that Mst. Koyali, who was duly identified before him, had received the injuries mentioned above and she died as a result thereof. This indisputable fact has not been contested before us by the learned counsel appearing for Teja. The plea of alibi advanced by Teja has also not been canvassed for our acceptance by the learned counsel for the appellant. The only question which remains to be considered is whether the prosecution has proved beyond doubt that it was Teja who committed the murder of Mst. Koyali. Mr. Tibrewal learned counsel for the appellant argued that Harlal, P. W. 1, is an unreliable witness for a variety of reasons; that the learned Sessions Judge was in error when he placed reliance on the first information report Ex. P. 15 lodged by Teja implicating himself and when he found the recovery of the 'gandasi' as one under sec. 27 of the Indian Evidence Act; that the prosecution had failed to prove the motive which actuated Teja to have committed the crime and that the blood stained clothes by themselves on the body of Teja were not sufficient to fasten the guilt to him. Mr. Mohnani, learned counsel for the State argued that Harlal, P. W. 1, was reliable and dependable because his evidence was corroborated by Debu, P. W. 3, and Mst Moharli, P. W. 7; that even if the discovery of the 'gandasi' and the F. I. R. Ex P. 15 lodged by Teja were excluded from consideration, Harlal's evidence, duly corroborated, coupled with the motive and the recovery of the blood-stained clothes from the body of Teja soon after the incident were enough to convincingly connect the accused with the crime. Before we consider the attack on Harlal's evidence, we might broadly notice his evidence. He deposed that Mst Koyali was related to him as his maternal-aunt. On the relevant night he was sleeping near the bed of Mst. Koyali in her 'knuddi'. There was no one-else in the room and it was locked on the outer side from within which was possible because the shutters consisted of wide enough slits During the night Teja and Sukhdeva knocked the door and uprooted the latch attached to the wall. This aroused him and Mst. Koyali from their sleep. Mst. Koyali challenged the intruders. The witness states that he identified the accused when they were standing out because it was a moon-lit night. After both the accused had opened the door they came inside the room. Teja was armed with a Gandasi. Sukha was empty handed. Teja dealt a blow on the neck of Mst. Koyali with the 'gandasi'. The witness is unable to tell as to on what other parts of the body of Mst. Koyali did Teja strike further blows. Mst. Koyali began crying that she was being killed and should be rescued. Teja delivered 5 or 6 blows upon her. Sukhdeva had caught hold of Mst. Koyali's lock of hair. Thereafter Sukhdeva delivered 5 or 6 blows upon Mst Koyali after taking the Gandasi from the hands of Teja. Both of them then left the Khuddi. Teja closed the door and then went away. The witness says that he is unable to say which side they went. Next morning he went to Mala when it was nearing dawn ("a little night still remaind") He had seen Mala also having been murdered and then narrated all the facts to his maternal-grand-father Debu, P. W. 3, Debu directed him to again go to Mala and find out whether he was breathing or not. He met Moherli wife of Mala and told her that Mala had been killed. She asked him as to who killed him. He said that he did not know as to who killed Malla, but he added that he knew that Mst. Koyali was killed by Teja and Sukha. He had also testified to the reason which made him to sleep in the 'khuddi' of Mst. Koyali. He had come to the village two months prior to the incident and engaged himself in grazing goats. Mst. Koyali was gripped by some kind of fear and he, therefore, was asked to sleep in her room. In cross-examination he has stated that he had studied in village Sheolana for about a year and then discontinued the studies and then he came to village Mehrampur and was sleeping in Mst. Koyali's room for about one month from the date of the incident. Prior to his sleeping there it was Teja who used to sleep near her. There was some litigation between his maternal uncle Pema and Mst. Koyali. The door of Mst. Koyali's room was locked before they went to sleep. He was sleeping on a separate 'charpai' from that of Mst. Koyali. He admits that there was no light in the 'khuddi' at the time of the incident and also that his clothes were blood-stained. Teja was wearing a black coloured shirt, jersey and and a Dhoti. He had tied a 'gandasi' over his head. Mr. Tibrewal assails this evidence on the ground that he is a child witness. The age of Harlal as given in his deposition is 13 years. At the time when he witnessed the incident he must have been about 11-1/2 years of age. Sec. 118, Indian Evidence Act merely provides that all persons shall be competent to testify unless the Court considers that they are presented from understanding the questions put to them or from giving rational answers to these questions, by tender years. No particular age has been specified by the statute. Without any effort at generalisation, children have been categorised those below 7, those between 7 and 10 and those between 11 and 13 in Woodroffe and Ameer Ali's Evidence Act, Twelfth Edn. , 1969 P. 2476. According to this classification at the time of his deposition before the trial court, Harlal was in the third group on the brink of being out of it. Mr. Tibrewal has invited our attention to Mohamed Sugal Esa vs. The King (1.) where their Lordships have held that it is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is rule of prudence and not of law. In Rameshwar Kalyan Singh vs. State of Rajasthan (2), Bose J. , speaking for the Bench, observed: " The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispence with it, must be present to the mind of the Judge, and injury cases, must find place in the charge, before a conviction without corroboration can be sustained, on the evidence of a child witness''. In The State vs. Dukhi Dei (3), a Division Bench of the Orissa High Court has ob-served that the evidence of a child witness is to be taken with great caution and should not be acted upon as it is notoriously dangerous unless immediately available and unless narrated before any possibility of coaching eliminated. In State of Bihar vs. Kapil Singh (4) it has been observed that while a child witness of about 12 years can often be expected to give out a true version because of its innocence, there is always the danger in accepting the evidence of such a witness because, under influence, she might have been coached to give out a version by persons who may have influence on her. Thus, while assessing the evidence of a child witness the first consideration should be in regard to his age, the second should be an estimation in regard to the texture of his evidence, the third should be how has he withstood the cross-examination and the fourth should be the existence or otherwise of an opportunity where he was exposed to tutoring or influence before he narrated what he had observed, and finally whether any corroboration is available to lend strength to the testimony of such a witness. The need for corroboration is the dictate of prudence and not the command of any statutory law. The quantum of corroboration needed in a given case would generally be regulated by the examination of the first 4 factors Harlal's evidence we have read more than once with closest of scrutiny and we are satisfied that his deposition has a rational continuity and a discernable discrimination between what he saw and what he did not. He has not been damaged in cross-examination despite its running into about 8 typed pages. Harlal had left Mst. Koyali's 'khuddi' in the small hours of the morning and went straight to Debu, P. W. 3, and in between this there was no possibility of anyone influencing or instructing his mind. He was examined by the police on the same day, therefore, the possibility of any prompting could be reasonably excluded in the circumstances of this case. The first person be met was Debu, P. W. 3, his maternal grandfather 80 years of age. He told him what he had seen and Debu corroborates his meeting with Harlal and the consistent narration of the story vis-a-vis Mst. Koyali's murder by Teja and Sukhdeva. He next met Mst Moharli P. W. 7, widow of Malaram and she has also corroborated the evidence of Harlal. The description of the injuries and the weapon employed by Teja against Mst. Koyali finds further corroboration from the medical evidence. Therefore we do not find the evidence of Harlal as unreliable of his tender years. Another attack on the evidence of Harlal by the learned counsel for the appellant is that he was aroused from sudden sleep when his observational faculties could not be at their best and it was impossible for him to have identified an individual standing outside the gate through the slits because the only light available was moonlight. The night in between 31st January and 1st February, 1967 corresponded to Magh Krishna 6 Smt. 2023. According to the almanac the moon rose during that night at 22,12 hours. Calendar situation therefore, warrants the conclusion that there was adequate moon light at about mid-night. Dr. Hans Gross on Criminal Investigation, Fifth Edition, at page 150 has observed: " By moenlight one can recognise, when the moon is at the quarter, persons at a distance of from twenty-one feet. . . . . . . In tropical countries the distances for moonlight may be increased. " The only obstruction, therefore, in recognising Teja in moonlight could be of the door. The door in the instant case, from the evidence of Narain Singh, P. W. l1 , was not of any panel, but it was a door where strips had been fastened to a frame with intervals of 4 to 5 inches between the strips. The Station House Officer has further testified that there was so much space in between 2 strips as to admit a human hand conveniently so that the outer lock in the door could be operated from within. The argument of the learned counsel for the appellant is that Harlal's observational faculties were not at peak in the first instance because he was aroused from his sleep and secondly there was not enough light or visibility from the 'charpai' where Harlal lay so as to fix the identity of Teja It is also proved from the evi-dence of Narain Singh P. W. 11, that a lock, a chain and a piece of wood were lying broken. It is, therefore, reasonable to conclude that effort at breaking the latch preceded the intruder entering the room of Mst. Koyali and some kind of movement must have taken place before they were able to unfasten the lock and open the door. This also postulates a certain interval during which Harlal must have been observing these persons through the slits at various angles. Thereafter, these persons entered the room and Teja wielded the axe. Teja is a resident of the village where Harlal had been living for some two months before the incident and, therefore, Teja was no stranger to him. Learned counsel for the appellant argued that there was no light inside. When the door was opened and the obstruction of the strips was removed, then the intruders were fully available for observation in the moonlight which shed on them. The distance was not long and, therefore, no difficulty of identification could arise. When the intruders went inside, whether moonlight travelled in the room or not, there being no data before us we can express no opinion But Harlal is certain that he had identified them before they had entered the room. We have no reason to distrust his evidence on this score. The next criticism of the learned counsel for the appellant regarding Harlal is that his conduct was unnatural inasmuch as he raised no cry for help but remained sleeping even after the intruders had gone away. Breaking open of a door and dastardly attack on a woman by axe was a scene which could have created a peculiar impact on a lad of little over 12 years. Whether panic paralysed his tongue or prudence forbade him from crying for help on account of its obvious futility or fear of an onslaught on himself made him mum, could not be definitely said. No pointed cross examination has been directed to ascertain the exact reasons for his inaction. We are, however, unable to characterise his silence as an unnatural conduct. Fault is sought to be found in the fact that he continued to sleep in the room, even after murder. Whether fear drove him to sleep or he merely lay awake on the bed, unable to move, is difficult to say in the absence of cross-examination. In our opinion, Harlal was not guilty of any unnatural conduct, when he went upto his maternal grand-father to make a complaint of what he had seen. Criticism has been further levelled against Harlal's testimony on the ground that if Harlal had told Debu about Teja having murdered Mst. Koyali, there is no reason. Why in Ex. D. 6 Debu's sons Hekha and Mahabir would not have mentioned the name of the accused in Ex. D. 6. We have examined Ex. D. 6. It is a laconic report of 2 murders written in an officious strain by the Panchas who had no personal knowledge. Technically also there was already a first information report in the shape of Ex. 15 lodged in the police station, Chirawa, and a case was registered. Teja was arrested and the Station House Officer Narain Singh was proceeding for investigation. This was accord inly a statement under sec. 161, Cr. P. G. made in writing to an investigating officer in the course of investigation and we are doubtful whether it is at all admissible in evidence. Harlal cannot be condemned because his maternal grand-father either failed to inform his sons or his sons failed to mention the name of the murderer in Ex. D. 6, which is signed by the 2 sons of Debu and 5 others. The last argument against the evidence of Harlal is that the learned Sessions Judge has disbelieved his testimony in so far as Sukhdeva accused is concerned. The reasons Sukhdeva are that Koyali's 'khuddi' which have persuaded the learned Sessions Judge to acquit he had nothing in his hand when he accompanied Teja to Mst. Sukhdeva had no motive for the commission of the crime and nothing was recovered by the police from him, nor was any discovery made pursuant to the information given by him. The learned Sessions Judge was also persuaded by the fact that in Ex. P. 15, which he thought was admissible to a limited extent, his name was not mentioned. Which one of these reasons including the partial non-reliance on the statement of Harlal resulted in the acquittal of Sukhdeva is not easy to distinguish. If one accused has been acquitted despite the testimony of a witness that does not necessarily mean that the witness is unreliable Reference in this connection is made to Gurcharan Singh vs. State of Punjab (5), in which Sinha J. , delivering the judgment of the court observed that merely because two of the accused have been acquitted, though the evidence against them, so far as direct testimony went is the same, it does not necessarily follow that the other must be similarly acquitted. To the same effect is the view expressed in Major S. C. Barsay vs. State of Bombay (6 ). The second argument of the learned counsel for the appellant was that the learned Sessions Judge was in error in relying upon Ex. P. 15 which was a statement inculpatory in character and having been made to a police officer was clearly hit by sec. 25 of the Evidence Act. Reliance was placed on A. Nogesia vs. Bihar State (7) and Sheikhi vs. State of Rajasthan (8 ). Their Lordships of the Supreme Court in A. Nagesia's case (supra) have authoritatively laid dawn: " Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also [the motive, the preparation, the opportunity the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. " We have perused closely Ex. P. 15 and the whole statement in our opinion is tainted. It is not open to the prosecution to rely on any part thereof. In view of this statement of law, the learned Sessions Judge was clearly in error in importing some parts of Ex, P. 15 in fastening the guilt to the accused. We have excluded it in its entirety from our consideration.
(3.) THE learned Sessions Judge relied upon the recovery of the 'gandasi' on the information and at the instance of the accused Teja. From the evidence of Harlal, P. W. 1, Mst. Moharli, P. W. 2, Debu, P. W. 3, Naurang, P. W. 6, Sarpanch and Mst. Moharli, P. W. 7, it is clear that the 'gandasi' lay by the side of the cot of the deceased Malaram. Each one of these witnesses had seen it lying before the arrival of the police. Can, in these circumstances, the recovery of 'gandasi' be treated as a discovery under S. 27, Evidence Act? Reference in this connection may be made to Sheikhi vs. State of Rajasthan (8) where Hidayatullah J. (as he then was) observed that if the "birchi" was lying by the side of the dead body for any body to see, it cannot be said that a material fact was discovered because of the statement. THEre being no element of concealment and consequent discovery, in our opinion, the learned Sessions Judge was in error in relying upon the discovery of a 'gandasi' as a link between the crime and the apppellent. THEre is another reason which we cannot ignore altogether from our consideration. THE fact that Malaram lay dead, whether the blood-stains on the 'gandasi' related to his murder or Mst. Koyali cannot be determined unless the result of blood grouping and that too of a divergent nature was available. We shall, however, exclude from our consideration the recovery of the 'gandasi' or the blood stains thereon. Now we come to the question of motive. The learned counsel's attack is two-fold. His first contention was that the prosecution has been shifting the motive sometime to land dispute and sometimes to the displacement of affection and the sexual relationship. 16 The following facts are clearly proved by admissible evidence: (1) In his statement before the learned committing Magistrate Teja admitted that Mst. Koyali had worn his 'churis' (bangles) i. e. to say had entered into matrimonial alliance with him after she had become a widow. (2) Harlal's testimony and Mst. Mohali's statement are to the effect that appellant Teja used to sleep in the same apartment as Mst. Koyali until one month before her murder. Something occurred which interrupted their normal sexual relationship. (3) It is nobody's case that it was a voluntary abandonment because Mst. Koyali gripped by fear had to requisition the service of Harlal to sleep in the room and to lock it from outside every night before she went to bed. 17. Therefore, it will be reasonable to infer that the relationship between Mst. Koyali and Teja were not happy. Whether it was due to land or shifting of affection from him to Malaram or to other reasons, it is difficult to say. Thus, an interruption in the normal relationship between Koyali and Teja could certainly provide us with proof of motive. To the limited extent therefore there is evidence of motive also. 18. Last, but not the least, are blood-stained clothes which were recovered from the body of accused Teja. Narayan Singh, Investigating Officer, has deposed that Teja was wearing a shirt and a Dhoti which were blood-stained. They have been marked Exs. 2 and 3 respectively. Cuttings from them were sent to the Chemical Examiner and he found them stained with blood. Reference in this connection may be made to Ex P. 18 They were sent to the Serologist who found them to be stained with human-blood: vide Ex. P. 17 Learned counsel for the appellant argued that it cannot be said as to what was the extent of the blood stains. We have seen these two material exhibits which are before us. We find the stains to be fairly extensive. On the Dhoti, which is whitish, there are plenty of stains. On the shirt also there are stains but the colour of the shirt' being darkbrown, it is difficult to very distinctly locate them No explanation is forthcoming from the accused as to how his Dhoti and the shirt came to be stained with human blood. He has even disowned his clothes. The denial of this obvious fact could be said to be inconsistent with his innocence. Reference in this connection may be made to Pershadi vs. U. P. State (9 ). 19. We have no hesitation in agreeing with the learned Sessions Judge when he placed reliance on the testimony of Harlal, who had seen Teja inflicting 'gandasi' blows on the body of Mst. Koyali. His evidence received ample corroboration from the evidence of Debu, P. W. 3, and Mst. Moharli, P. W. 7, and the recovery of the blood-stained clothes coupled with the propelling motive. He has, in our opinion, been rightly convicted under sec. 302, I. P. C. 20. This appeal fails and is dismissed. The learned counsel for the appellant prays for leave to appeal to the Supreme Court. 21. We see no reasons to grant leave. The prayer is rejected. .;