- (1.) THIS appeal is directed against the judgment dated 5. 12. 92 passed by the District and Sessions Judge Merta, by which the learned Sessions Judge Merta, by which the learned Sessions Judge convicted the accused-appellant for the offence under Sec. 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months' rigorous imprisonment.
(2.) APPELLANT Satya Narain was tried by the learned Sessions Judge, Merta for committing the murder of his wife Smt. Kamla on 31-7-89 at 9. 00 a. m. in the Nohra of Ram Lal Jat situated in village Arniyala. The facts of the prosecution case as disclosed in the FIR lodged by Sukhdeo Ram, the father of the deceased, at police Station, Padu Kallan on 31-7-89 at 11. 45 a. m. , which led to the prosecution and conviction of the accused-appellant in the present case, are that his daughter Kamla was married to accused-appellant Satya Narain. The relations between the accused- appellant and the deceased were strained and litigations were going on between them but ultimately the matter was compromised between the accused and the deceased. At about 9. 00 a. m. on the day of the incident,his daughter Smt. Kamla went to fetch water from the water-pond in village Arniyala and was returning from the water- pond. When she was returning from the water-pond,the accused- appellant inflicted injuries to Smt. Kamla by a Kulhari in the Nohra of Ram Lal and she was lying injured in the Nohra of Ram Lal. The information of the inci- dent was given to him by Arjun Ram Jat of village Arniyala. The police registered the report and thereafter went to the place of the incident. The accused, by that time, had run away. The prosecution, in support if its case,examined sixteen witnesses. The accused pleaded alibi and examined two witnesses, viz. , DW. 1 Girraj and DW. 2 Chhotu Ram to show that on the day of the incident, the accused was not in the village and was working as labourer with DW. 1 Girraj Prasad on his work on Chardiya Bandh in village Sagoda (district Jhalawar ). The learned trial court did not believe the defence version and relied-upon the evidence produced by the prosecution and after trial, convicted and sentenced the accused- appellant as stated above. It is against this judgment dated 5. 12. 92 passed by the learned Sessions Judge, Merta, convicting and sentencing the appellant that the appellant has filed this appeal. The nature of the evidence produced by the prosecution consists of the statement of three eye witnesses, viz, PW. 4 Munni, PW. 5 Kamla and PW6 Yasoda, which is sought to be corroborated by the evidence of PW. 1 Sukhdeo the maker of the FIR and a witness of the dying declaration; PW. 2 Arjun Ram the Motbir witness before whom the dying declaration was made and that of PW 8 Bhanwara Ram and PW. 9 Hari Ram the other Motbir witnesses. PW. 3 Gokul Ram and PW. 7 Ram Ni was were, also, the eye witnesses of the occurrence but they have not supported the prosecution case and were declared hostile. PW. 15 Cr. S. S. Diwakar was the Medical Officer, Primary Health Centre, Riyan who conducted the autopsy on the deabody of the deceased. PW 10 Srawan Ram, ASI, PW 11, Bhopal Singh,pw. 12 Bhanwar Singh, PW. 13 Hanuman Singh, PW 14 Ramdeo and PW16. Loon Singh are the police witnesses who were connected with the investigation of the case at one stage or the other. The prosecution has, also, relied-upon the dying declaration Ex. P. 16 recorded by PW. 13 Hanuman Singh, the investigating officer, in the presence of PW 10 Srawan Ram, ASI. The prosecution case, therefore, mainly rests upon (i) the statement of the eye witnesses, viz. , PW 4 Munni, PW 5 Kamal and PW. 6 Yasoda; (ii) the dying dec- laration made by deceased Smt. Kamla before her father PW. 1 Sukhdeo Ram; (iii) the second dying declaration made by deceased Smt. Kamla before PW. 2 Arjun Ram and other villagers, and (iv) the dying declaration Ex. P. 16 made by the deceased and recorded by PW. 13 Hanuman Ram. We would like to consider these evidence relied-upon by the prosecution. Now, we first take-up the evidence of the three eye witnesses relied-upon by the prosecution. PW. 6 Smt. Jasoda aged ten years is the daughter of Ram Lal, in whose code (Bara) the murder of Smt. Kamla took place. She has stated that on the day of the incident she was in the Bara as their cow had given birth to a calf. She was cutting a lock on the door of the Bara. By that time, Satya Narain's wife came running, who was being followed by her husband Satya Narain. Satya Narain was armed with a Kulhari. Satya Narain inflicted injury by the kulhari on the back of Smt. Kamla. She raised an alarm and ran towards the water-pond where her mother had gone to fetch water. When she was running towards the water-pond Kamla and Munni met her and on their asking she informed them that Satya Narain cut off Smt. Kamla. Thereafter she went to the water-pond but her mother was not there and she was informed that she had gone to the field. Then she went to field where her mother and father were working and she narrated the whole incident to her parents. She also, identified the accused-appellant in the Court. In the cross examination she has admitted that inspite of her raising the cries, nobody came from the adjoining cotes (Baras ). She has, also, admitted that after narration of the incident to her father, her, father came to the village but she did not go to the village alongwith her father and returned from the field in the evening. She has, also, admitted that after she came out from the Bara, she does not know where the accused had gone. She has, also, admitted that in her statement recorded under Sec. 161 Crpc there is no mention of stating of the incident by her to Kamla and Munni but she had stated as to the police. She has also, stated that when Satya Narain's wife running to her cote (Bara) she was being following by Satya Narain from the distance of only one pace.
(3.) THE evidence of this witness has been challenged on the ground that she is a child-witness and is not a reliable witness as she is interested in the prosecution case and has been made an eye witness to save her father. THE evidence of a child witness can be accepted provided the witness is intelligent enough to give evidence and is nature of intellects. THE trial Court, in the present case, has put certain questions to this witness to ascertain her competence to give evidence. THE ques- tions put to this witness and the reply given by her clearly shows that the witness was competent to testify and is intelligent enough to give evidence and only after that, the learned trial Court recorded her statement. After going through her evidence, we are, also, of the view that the witness is intelligent enough to give evidence. In this view of the matter we are of the opinion that the evidence of PW. 6 Yasoda can be relied- upon and cannot be thrown-away merely because she is a child -witness. The presence of PW. 6 Yasoda in her own house was most natural. The deceased came running, who was being followed by her husband the appellant. This witness saw deceased Smt. Kamla entering her cote (Bara) and followed by her husband (the appellant) who was armed with the kulhari and on entering into the Bara, the accused-appellant inflicted injuries to Smt. Kamla, which were witnesse by PW. 6 Yasoda. Yasoda thereafter ran away. If is true that she has stated that while running from the place of the occurrence towards the water-pond, PW. 4 Munni and PW. 5 Ku. Kamla met her and though she stated that she narrated the incident to them but this fact does not find mention in her earlier version. Her narrating the incident of PW. 4 Munni and PW. 5 Ku. Kamla, therefore, does not inspire confidence. Thereafter she went to her field and narrated the incident to her father and the other, which can be believed. The evidence of this witness, there- fore, can be believed to this extent that she saw the incident of inflicting injuries by the accused -appellant with the kulhari to Smt. Kamla and thereafter running from the place of the incident to wards water-pond, and thereafter reaching to her field and narrating the incident to her parents. The evidence of this witness clearly shows that she is not a tutored witness and has stated what she had actually seen. The second alleged eye witness produced by the prosecution is PW 4 Miss Munni. She has stated that on the day of the incident she was going to the water-pond alongwith her cattle. After covering some distance from the Bara, her niece Yasoda came running and was proceeding towards the water-pond. On enquiry, she informed that Sattu has killed his wife. Ku. Kamli was , also, coming behind her. She informed kamla what Yasoda told her. She and Kamli thereafter went to wards the place of the incident and saw accused Satya Narain armed with the kulhari and coming out of the Baraof Ram Lal and running. This witness, in her earlier statement, has not stated that Yasoda narrated the incident to her and disclosed that Sattu killed his wife and, therefore, this part of her statement cannot be believed. She has not stated that she had seen the occurrence and, therefore, she cannot be said to be an eye witness. She can be believed only to this extent that she, alongwith her cattle, was proceeding towards the water-pond, Yasoda met her and she saw the accused armed with the Kulhari coming out and running from the Bara of Ram Lal. ;