R.K.MERATHIA, J. - (1.) THESE cases arise out of common Judgment dated 20th March, 2006 passed by Shri Chamru Tanti, 1st Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 122 of 2003 convicting the appellants under Section 302/34 and 307/34 of the Indian Penal Code and sentencing them with death penalty.
(2.) THE prosecution version as per the self statement of A.S.I. Narayan Prasad Singh (P.W. 15) in short is that on 11.09.2002, at about 09.40 P.M., while he was on night patrol, he heard hue and cry coming from the side of the place of occurrence whereupon he along with other armed force rushed there and saw three persons fleeing away from the back side of the quarter where the occurrence took place. Only one person could be apprehended who disclosed his name as Guddu Kurnar Pandey (Appellant). He was taken to the front side of the quarter. Inside the quarter, a male and a female were lying dead in the pool of blood on the floor. The injured Devlina Mandal, aged about 9 years (P.W. 3), whose parent were killed, narrated to him that when she woke -up on the cry of her mother, she saw that two persons were assaulting her father Dilip Kumar Mandal with Dagger and pierced dagger into him. The person who thrashed dagger in the abdomen was appellant Rajiv, the teacher of her school. When the other accused accompanying accused Rajiv saw that she was awaken, he inflicted dagger injury on her neck. In the mean time, people started thumping the doors. Hearing the sound of thumping, they fled away from the back side by scaling over the back wall. She opened the door and narrated the entire incident to the neighbours who assembled there due to alarm raised by her deceased mother. On interrogation, the apprehended accused Guddu Kumar Pandey confessed that he along with accused Rajiv Kumar Singh and Manoj Kumar Singh hatched up a plan for committing crime. They took wine and planned to rob the motorcycle of the deceased Dilip Kumar Mandal. Rajiv Kumar Singh purchased three daggers and distributed amongst them. They reached at the house of the deceased at about 9:30 P.M., left their slippers and jumped into the courtyard after scaling over the boundary wall Shikha Mandal (deceased) raised alarm on which, Rajiv Kumar Singh and Manoj Kumar Singh caught her and thrashed her on the floor due to which, her head broke and then Rajiv and Manoj killed her by strangulation. The deceased Dilip Kumar Mandal came out with a Danda who was killed by all the three accused persons by dagger. They tried to kill Devlina Mandal but as the people assembled and were thumping the door, they fled but he was caught. The informant Narayan Prasad Singh, ASI (P.W. 15) prepared his statement (Ext. 5) in the quarter and returned to the Police Outpost with it and handed over the apprehended accused Guddu Kumar Pandey to the Officer Incharge Subhash (P.W. 19) who investigated the case. The Investigating Officer again took the statement of accused Guddu Kumar Pandey who confessed his guilt. On the basis of such confession, accused Manoj Kumar Singh and Rajiv Kumar Singh were arrested and their confessional statements were also recorded. The blood stained clothes were seized and sent to Forensic Science Laboratory. On the basis of confession of Rajiv Kumar Singh, the blood stained dagger used in the crime was seized which was also sent to the laboratory. The blood from the place of occurrence was also seized and sent to the laboratory. Charges under Section 393, 394, 397 and 302/34 of the Indian Penal Code were framed against the petitioners to which, they pleaded not guilty. Learned Counsel appearing for the appellants submitted that the entire case has been fabricated to falsely implicate the appellants. It is not known why the fard beyan was recorded on the self statement of ASI (P.W, 15) if P.W. 3 Devlina Mandal was competent to depose and could narrate the story to P.W. 15. It is further submitted that the other members of the patrolling party were not named by P.W. 15 and they were not examined. It is further submitted that if P.W. -18, brother of P.W. 3 reached his house on 13.09.2002, how he could put his signature on Ext. 7/3 the seizure list of blood from the place of occurrence prepared on 12.09.2002 at 01.00 P.M. It is also submitted that P.W. -3 is the only eye witness and she being a girl child, aged about 9 years, her evidence cannot be relied. It was further submitted that the evidence of P.W. 3 is contrary to her statement made under Section 164 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). It is further submitted that the inquest report was fabricated. It is also submitted that as per the fard beyan, Guddu Kumar Pandey confessed that he and other accused persons planned the robbery of motorcycle, but no motorcycle was seized by the Investigating Officer.
(3.) IT is true that the evidence of child witness is to be seen with caution. Devlina Mandal (P.W. 3) is the only eye witness of the actual occurrence. She was aged about 9 years at the time of incident. The Court has found that she was competent to depose. She supported the statements recorded in fard beyan. She said that at about 9:30 P.M. on 11.09.2002, she was in her bed. Her father was making mosquito net, mother was washing the utensils. In the mean time, Rajiv and Manoj came inside the quarter by jumping over the wall. Manoj assaulted her mother on head by rod. When her mother cried, her father tried to resist Rajiv by lathi. When the Lathi struck in the Nylon cloth line, Rajiv inflicted dagger blow in the abdomen of her father and revolved dagger four times. She was standing nearby. Manoj inflicted dagger blow on her neck causing bleeding injury. Asha (P.W. 6) who is next door neighbour along with her mother (P.W.7) came and asked to open the door. Shailendra (P.W. 2) Ram Kewal (P.W. 4) and Prakash Chandra (P.W.5) also came and saved her. The appellants fled away from the house. Guddu Pandey was in the garden. He did not enter into the quarter. She identified the appellants in dock. The police did not brief her when she gave statement in Court. However, Police asked her to say about the matter in the Court (this part apparently refers to her statement under Section 164 of the Code). On the date of evidence, the Government Lawyer did not make her understand as to what she has to say. She knows the appellants who used to visit her house. They were her neighbours. Rajiv was her teacher in the school. She was brought to the Court by her brother (P.W.18) and Prakash Chandra (P.W.5) but they have not asked her as to what she has to say. Behind her quarter, there is jungle. The appellants had tied their mouth by black cloth. In cross examination, it was not suggested by the appellants that she was not present at the time of occurrence. There is no reason why she should depose falsely against the appellants with whom she had no grudge or enmity, and will spare the actual culprits. Her evidence is corroborated by the evidence of P.W. 2, P.W. 6 and P.W. 7 who are her next door neighbours, who have also supported the case of the prosecution.;