Rakesh Kumar v. The State of Bihar

Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 save her life fled inside the house, then both the accused persons chased her and shot at her. After receiving knife and pillet, Anita Devi and Priya Kumari died on the spot. The neighbours had taken the injured Wakeel Singh for treatment to hospital. His naati Sahil aged about 8 years who was present in his house at the time of occurrence was in trauma and he told that Rakesh bhaiya and Sonu bhaiya along with 2-3 persons assaulted his mother, father and sister by dagger and shot at them. From the neighbours also the informant came to know about the occurrence. It is alleged that Rakesh Kumar and Sonu Kumar along with their some friends came with a four-wheeler vehicle, they kept the vehicle parked at ‘Aahar’ of the village and after executing the occurrence, they fled away. The informant further alleged that at the place of occurrence near the dead body of Priya Kumari one country made pistol was lying which is of the person who was involved in firing. The fardbeyan of the informant has been recorded by the S.I. Pradeep Kumar (P.W.-4) and it has been witnessed by Indrajeet Singh (P.W.-1).

6. Upon completion of investigation, police submitted a charge-sheet against the appellant and the learned Magistrate took cognizance of the offences as alleged in the charge-sheet. After finding that the offences of which the cognizance has been Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 taken would be triable by a Court of Sessions, the records were submitted to the Court of Sessions from where it was ultimately transferred to the Fast Track court -2.

7. It further appears that the appellant was explained the charges which he denied and claimed to be tract. On behalf of the prosecution as many as 5 witnesses were examined and some documentary evidences were produced which have been marked exhibits.

8. The statement of the appellant was recorded under Section 313 Cr.P.C. in which he claimed his innocence. The defence examined four witnesses in this case. The list of prosecution and defence witnesses and the documents exhibited on behalf of the parties are provided hereunder for a ready reference. List of Prosecution Witnesses P.W.-1 P.W.-2 P.W.-3 P.W.-4 P.W.-5 Indrajeet Singh Sahil Kumar Ramadhar Singh (Informant) Pradeep Kumar Kumar Deo Pujan (Doctor) List of Prosecution Exhibits Ext.-1 Signature of P.W.-1 on the fardbeyan Ext.-2 Photocopy of the death review Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 Ext.-3 Ext.-4 Ext.-5 Ext.-5/1 Ext.-6 Ext.7 Ext.-8 Ext.-8/1 Ext.8/2 report Fardbeyan Seizure list near the dead body of Priya Kumari Seizure list near the dead body of Priya Kumari Seizure list from the outer verandah of Wakeel Singh Death review report of Wakeel Singh Writing of Charge-sheet Post-mortem report of Priya Kumari Post-mortem report of Wakeel Singh Post-mortem report of Anita Kumari List of Defence Witnesses D.W.-1 D.W.-2 D.W.-3 D.W.-4 Santosh Singh Vikash Kumar Jay Prakash Singh Pramod Kumar

9. The defence did not adduce any documentary evidence. Findings of the learned Trial Court

10. The learned trial court having analyzed the evidences led on behalf of the parties came to a conclusion that the prosecution has been able to prove it’s case against the appellant beyond all reasonable doubt. It is recorded that the Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 only eye-wtiness of the occurrence is the witness Sahil Kumar (P.W.-2), who is a child witness and has supported the prosecution story with regard to the place and manner of occurrence. The trial court found that the defence witnesses i.e. DW-1, DW-2 and DW-3 are not reliable witnesses, they are the family members/cousins of the deceased Wakeel Singh whose conduct is not natural.

11. The trial court found that the defence witnesses did not take any step after the occurrence took place. It has been held that the defence witnesses have failed to demonstrate that there was any property dispute between the parties. There was no reason for the prosecution to falsely implicate the appellant who is a member of the family. Since there was no allegation/evidence against this appellant that he had fired from the country made pistol, the learned trial court found that the evidence under the Arms Act would not be attracted against this appellant. The learned trial court held that the eye-witness Sahil Kumar had fully supported the prosecution case. In its ultimate analysis the learned trial court convicted the appellant and sentenced him as stated above. Submissions on behalf of the Appellant

12. Before this Court, learned Senior Counsel for the Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 appellant has assailed the impugned judgment and order on various grounds. It is submitted that the learned trial court could not appreciate that the only eye-witness of this case is said to be an eight years old boy. While recording his evidence in course of trial, the trial court has not tested his competence. It is further submitted that the learned trial court has committed error in convicting the appellant on the sole testimony of an eight year old boy, in absence of any corroboration to his evidence. At the same time, it is submitted that the trial court has not considered the defence witnesses and their depositions have been discarded by the learned trial court under a wrong notion that they being family members of the deceased, had not acted in their natural conduct by reporting the alleged occurrence to the police station.

13. Learned Senior Counsel submits that in this case, no witness from the village has been examined. The weapon of crime, i.e. the pistol has not been produced in course of trial and there is no ballistic report suggesting that any firing had taken place from the said pistol. Learned Senior counsel submits that there is no gun shot/ pistol injury on the body of the deceased, therefore, the prosecution story that the deceased were shot at, is not getting corroborated. It is submitted that a reading of the Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 statement of P.W.-3 in paragraph ‘11’ and at the same time the statement of P.W.-3 in paragraph ‘1’ would show that they are contradictory to each other. In para ‘1’ of his deposition, P.W.-3 has stated that he had seen the country made pistol lying near the body of Priya Kumari. Futher, in para ‘11’, he has stated that he has not given the pistol to police and to his information no seizure list of the pistol was prepared.

14. It is submitted that P.W.-3 has stated in his deposition that his naati Sahil Kumar was present near the place of occurrence but P.W.-2 has stated that on the date of occurrence he had gone to his school.

15. Learned Senior Counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Pradeep Vs. State of Haryana reported in AIR 2023 SC 3245 and P. Ramesh Vs. State represented by Inspector of Police reported in (2019) 20 SCC 593 to submit that before recording of the evidence of a minor it is the duty of a judicial officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. In this case the Judicial Officer has not done preliminary enquiry, therefore, it would not be safe to convict the appellant on the sole testimony of the Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 child witness P.W.-2. There is every possibility that the child witness may have been tutored. Submissions on behalf of the State

16. On the other hand, learned Additional Public Prosecutor for the State has opposed the appeal. It is submitted that the learned trial court has duly examined and analyzed the evidence of the prosecution witnesses and the exhibits produced in course of trial. It is submitted that three members of a family have been killed. The appellant is none else but the nephew of one of the deceased Wakeel Singh and it has come in evidence that the family of Wakeel Singh and his brothers were living in the same house. The house of the deceased is the place of occurrence.

17. It is submitted that the occurrence took place on

26.12.2015 at about 06:30 PM. The minor son of the deceased Wakeel Singh is an eye-witness of the occurrence. He has supported the prosecution case and has withstood the test of cross-examination by the defence. The P.W.-2 has given the detail of the occurrence which had taken place in his presence. The defence did not suggest to this witness that he was not present at the place of occurrence. In paragraph ‘3’ of his deposition, when he was suggested that his maternal grandfather Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 has told him about the occurrence and he had not seen the same, he denied it and specifically stated that he had seen the occurrence.

18. Learned Additional Public Prosecutor submits that on close scrutiny of P.W.-2, it would appear that his testimony remained intact. He is not a tutored witness and even as the learned Judicial Officer has not conducted a preliminary enquiry into the competence of this witness, that alone would not be the ground to reject the whole testimony of P.W.-2. He is a reliable witness and the circumstances showing the probability of the case are duly corroborating the evidence of P.W.-2.

19. Learned Additional Public Prosecutor has further pointed out that the conduct of the defence witnesses have been rightly taken note of by the learned trial court. These witnesses are the family members of the deceased but they despite their knowledge of the occurrence did not report the matter to the police, they did not depose as a witness to disclose the true and correct facts, rather they chose to come as a defence witness at a belated stage in course of trial in order to save the appellant who is one of the nephews of the deceased Wakeel Singh. Consideration

20. We have heard learned counsel for the appellant Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 and learned Public Prosecutor for the State as also perused the trial court records. It is evident from the materials on the record that the whole prosecution case is based on the testimony of the eye-witness namely Sahil who is the minor son of the deceased Wakeel Singh. The fardbeyan of Ramadhar Singh (P.W.-3) is based on the information which he received from his naati Sahil aged about 8 years. The occurrence took place on 26.12.2015 at about 06:30 PM in the house of the deceased, the informant reached village Khetalpura within a short period after getting the information of the occurrence at 08:00 P.M. on the same day and his fardbeyan was recorded at 09:00 PM. Thus, within two and half hours of the occurrence the fardbeyan of P.W.-3 was recorded. During this period there was no occasion for P.W.-3 to tutor his naati Sahil.

21. In course of trial, the eye-witness Sahil Kumar (P.W.-2) has stated in his examination-in-chief that he was sitting at his dalaan, his elder father, Santosh Singh was sitting at some distance and his father was also sitting there. He has stated that Sonu bhaiya and Rakesh bhaiya were coming there, his elder father said that they have been given money recently so why they have come. At this time his mother and Priya didi were coming from the field, then Sonu bhaiya shot at his mother Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 and Rakesh bhaiya assaulted his mother by a dagger. He further deposed that Priya didi was fleeing away then Sonu bhaiya and Rakesh bhaiya assaulted her by dagger and when his Papa was coming then Sonu bhaiya and Rakesh bhaiya assaulted him from behind by dagger. This witness has stated that he had also gone with his father to the Doctor but his father died. P.W.-2 identified Sonu and Rakesh in the dock.

22. This Court finds that this witness has been cross- examined. He has given the detailed description of his family and that clearly shows his understanding and competence. He has stated that his maternal grandfather had not told him about the occurrence rather he had personally seen the occurrence. He has stated that dalaan and house are together and there is a room adjacent to the dalaan in which chicken was being prepared. This witness has stated that the family of the accused and his family are together. He had gone to the hospital when his maternal grandfather had reached to the place of occurrence. This Court finds that in his cross-examination, this witness was never suggested that he was not present at the place of occurrence, though it was suggested that he had not seen the occurrence but he denied the suggestion.

23. The Doctor (P.W.-5) who conducted the post- Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 mortem of the dead body of the three deceased found the following injuries on the body of the deceased:- “Post-mortem examination done over dead body of Priya Kumari age-16 years, Female, D/o Wakil Singh, Vill-Khetalpur, P.S. Sanghauli, P.S. Rohtas on 27/12/15 at 11:30 AM at Sadar Hospital, Sasaram found following Anti-mortem Injuries – External injuries – i. Sharp cutting wound on lower abdomen size 4"x2"x abdominal muscle deep and bulging of abdominal contents through wound. (ii) Sharp cut wound over left side of the abdomen above the umbilicus size 3"x2"x abdominal cavity deep. (iii) Sharp cut wound over right side of chest 3"x1½"x chest rib deep. (iv)Sharp cut wound on back of chest over left side of size 3"x2"x cavity deep. (v) Sharp cut wound over left shoulder joint left side 1½"x1/2"x muscle deep. (vi) Sharp cut wound over left side of face size 1"x1/2"x facial muscle deep. (vii)Sharp cut wound over left side of angle of mouth 1/2"x1/4"x muscle deep. (viii) Sharp cut wound over right elbow joint posteriorly. size 1/2"x1/4"x muscle deep. Dissection:- Skull- Skullbone intact and Brain substance and meninges intact & pale. Chest:- Bony cage of chest-intact-both lungs intact and pale. Heart-intact and both-chamber of heart empty. Stomach-cut and digested material scattered in abdominal cavity. Small intestine cut and fluid came out in cavity which was mixed with blood. Abdominal cavity containing blood, large intestine cut and faecal matter was found in Abdominal cavity, liver, spleen and both kidneys intact and pale. Urinary Bladder- 50 ml of urine, Uterus-non gravid. Cause of Death- Haemorrhage and Shock-caused by above mention injuries. Time elapse since death till P.M. examination done- 12 hrs. to 24 hrs. (2) Post-mortem examination done over dead body of Wakil Singh age-55 years, Male, s/o Late Bechan Singh R/o Vill. Khetalpur P.S. Sanjhauli Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 District-Rohtas on 27/12/15 at 11:30 AM at Sadar Hospital, Sasaram and found following Anti- mortem Injuries – External Injuries – (i) Stitched wound over the left side of renal area of back side size 4" length, (ii)Stitched wound over the right side of back of chest below scapula size 4" length. (iii) Abrasion on left side of knee above upper part of knee 1"x1/4"x skin deep. (iv) Sharp cutting of wound over the middle of left thigh posteriorly size- 2"x1/4"x muscle deep. Dissection:- Skull- Skull bone intact and Brain substance and meninges intact & pale. Chest:- Bony cage of chest ribs fracture on right side. After reunion of stitches wound was deeply situated in the deep cavity of chest with inverted margin wound was likely to penetrating of size 4"x2"x cavity deep. Inverted margin with clotted blood found in chest cavity. Both lungs intact and pale. Heart-right chamber of heart full of blood and left chamber of heart empty. Stomach- containing semi digested food material abdominal cavity containing blood fluid. After reunion of stitches of left renal area the wound was penetrating up to the left kidney where it was lacerated. Right Kidney intact and pale. Liver, spleen pale and intact. Small intestine and its loop-containing fluid and gases-large intestine containing fecal matter and gases. Urinary bladder containing 100ml. of urine. Cause of Death- Haemorrhage and Shock due to above mention injuries. Time elapse since death till PM Examination- 12 hrs to 24 hrs. (3) Post mortem examination done over dead body of Anita Devi Age 45 years Female W/o Wakil Singh R/o Vill. Khetalpur P.S. Sanjhauli District- Rohtas on 27/12/15 at 9:30 AM at Sadar Hospital Sasaram found following anti-mortem injuries – External Injuries – (i) Penetrating wound over the Back side of dorsal spine near lower border of left scapula of size 3"x 2" x cavity deep of chest with margin slightly decline lower part of wound with Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 inverted margin. Lower part of the wound was sharp cutting. (ii) Penetrating wound over right side of the front of neck size 3"x2"x cervical vertibre deep in right side of margin inverted lower part of the wound sharp cutting. (iii)Penetrating wound over dorsal spine between both scapula size 3"x2"x cavity deep margin inverted lower part of wound sharp cutting. (iv)Sharp cutting of wound over the right pinna of the Ear size 1-1/2"x1/4" x muscle deep. (v) Sharp cutting wound over right side of face size 1- 1/2"x1/4"x muscle (facial) deep. (vi) Sharp cutting wound over right side of scapula and shoulder size 3"x1/4"x scapula bone deep. Dissection: Skull- Skull bone intact. Brain and meninges intact & pale. Chest:- Bone cage of chest rib of left side fracture. Clot blood found under the chest cavity. Massively lungs left side teared and right side intact. Heart-Intact and both chamber empty, Neck- large vessels of neck cut through up to the cervicle vertibra. Stomach-containing semi digested food. Spleen, liver and both kidney intact and pale. Small intestine and its loop-containing fluid and gases-large intestine containing fecal matter and gases. Urinary bladder containing 150ml. of urine. Uterus-non-gravid. Cause of Death- Hemorrhage and shock due to above-mention injuries Time elapse since death till PM Examination done- 12 to 24 hrs.”

24. This Court further finds that there is a seizure list (Ext.-4) which shows that a pistol which was misfired had been seized. This presence of seizure list showing that there was seizure of a misfired pistol clearly corroborates the evidence of the child witness P.W.-2 that one of the accused Sonu had shot at his mother. The firing however missed as it appears from the pistol described in seizure list (Ext.-4). The said pistol was also Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 produced in court on 09.03.2016 and the I.O. had sought permission to get tested the same but it seems that the I.O. had committed a mistake in not producing the pistol and seizure list initially with the FIR and in this connection, he had filed a petition in the court of learned Magistrate which is available on the record.

25. In the entire circumstances present on the record we find that even though the preliminary enquiry was not conducted with regard to the competence of P.W.-2, his testimony cannot be discarded. A child would be a competent witness if he has capacity and intelligence to understand the difference between truth and falsehood. In the case of P. Ramesh (supra), the Hon’ble Supreme Court has dealt with this aspect of the matter in paragraph ‘13’ to ‘16’ which we reproduce hereunder for a ready reference:- “13. Section 118 of the Evidence Act, 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act, 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v. State of Maharashtra5, where this Court, in relation to child witnesses, held thus : (SCC p. 343, para 5)”

5. Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri) 685 Patna High Court CR. APP (DB) No.22 of 2021 dt.16-04-2025 “5. … A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.” 14. A child has to be a competent witness first, only then is her/his statement admissible. The rule was laid down in a decision of the US Supreme Court in Wheeler v. United States6, wherein it was held thus : (SCC OnLine US SC para 5) “5. … While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial Judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial Judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous.”

15. In Ratansinh Dalsukhbhai Nayak v. Gujarat7, this Court held thus : (SCC pp. 67-68, para 7) State of (Emphasis supplied)