Nurisha Khatoon v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.844 of 2012 (Against the Judgment of conviction and order of sentence both dated 30.06.2012, passed by learned 2nd Addl. Sessions Judge, Hazaribagh in Sessions Trial No.177 of 2005). 1.Suleman Mian 2.Akram Ansari @ Ekram Ansari @ Ekram Mian 3.Niresh Khatoon@ Nurisha Khatoon Appellants Versus The State of Jharkhand. ….. Respondent P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. For the Appellant For the State : : Mr. A. K. Sahani, Advocate Mr. Fahad Allam, APP …..
Legal Reasoning
13. Having considered the submissions of both the sides and perusing the entire materials on record, it appears that the deceased died as homicidal death and the same is established by the post-mortem examination report (Exhibit-3). The Doctor (P.W.8) has recorded the following ante-mortem injuries on the body of the deceased :- On external examination Both eyes half opened, mouth opened, rigor mortis present in both upper and lower limbs. Old scar on back 3”x1”. Ante-mortem injury :- (1) Bruise on back left side 1”x1” two in number (2)Bruise on abdomen 1”x1/2”. On dissection Chest cavity contains blood clot 6 ounce. Left long-raptured. Liver-fractured, heart-both chamber empty, spleen- intact and pale. Kidney of left side-haematoma present. Haemotoma present at three places of large intestine and at two places small intestine. Stomach contained mucoid fluid 3 ounce. Stomach wall-normal. Bladder-empty. Uterus and Vagina- NAD. According to this witness, time elapsed since death 24-36 hrs and cause of death was shock and haemorrhage due to above mentioned injuries caused by hard and blunt substance. He has proved post-mortem report prepared by him and same has been marked as Exhibit.3 in this case. Cause of death was due to shock and haemorrhage due to above mentioned injuries. 14. Regarding the author of the crime, the only witness is the daughter of the deceased who has been examined as PW-4, aged about 9 years at the time of her examination and she has deposed that the incidence took place two years ago. She has deposed in para-1 that her mother Muneja Khatoon had been assaulted by her uncle, Ekram Ansari, Aunt Nursa Khatoon, Grand father Suleman Mian and Grand mother Halima Khatoon. She has specifically stated that her mother was assaulted with fists by her uncle Ekram Ansari, as a result she fell down. After she fell down she was assaulted with shoes. She was assaulted at her chest resulting in her death. She died in the courtyard. In the cross-examination at para-4 she has deposed that before being assaulted, she (deceased) was abused. She ran and called her father, but by that time her mother had become unconscious. 15. Law is settled that a Judgment of conviction can be returned on the solitary account of a child witness. Corroboration of such a witness is a rule of 4 prudence, but not a rule of law. The Court has to be careful while scrutinizing such a witness as there is a possibility of tutoring of such witness. Here the witness is residing in her home and testifying regarding the homicidal death of her mother. Her father had performed second marriage and has not supported the prosecution case and was accordingly declared hostile. She is the sole voice who throws light on the manner in which her mother was assaulted resulting in her death. 16. With regard to the competency of the child witness it has been held in Pradeep Vs State of Haryana 2023 SCC OnLine SCC 777 that 9. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. 10. Before recording 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. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. 17. The witness was under 12 years of age, therefore it was incumbent on the part of the Court to have made up proper preliminary examination of the witness before recording her testimony, which has not been done in the present case. The Court failed in its duty, before recording the testimony of a witness to put questions to ascertain her level of understanding the questions, and giving proper answers to it. 18. This Court is of the view that this by itself cannot be a ground to discard the testimony of the child witness, when there is no other circumstance to show that she was not able to understand and respond to the questions. The girl is illiterate rustic, but her testimony is emphatic on the manner of the incidence. She has deposed that it was the Appellant no.2 who assaulted the deceased with fists and after she fell down she was assaulted on the chest. The post-mortem examination report corroborates the testimony of this witness, as the injuries that were found can be said to be compatible with assault by fists. The trend of examination in chief and cross examination does not show that the witness was not able to understand the questions and properly answered them. 19. Her deposition in para-4 cannot be attached much importance, as urged by the defence. Her statement that before her mother was assaulted she was abused, and subsequent statement that she had gone to call her father, cannot be read 5 conjunctively. These are two statements, in response to two different questions, although recorded in one single paragraph. 20. Fact of the matter remains, that the incidence of homicide took place in the house, and the testimony of the child witness that Appellant no.2 was the author of crime has remained un-demolished in the cross-examination. There is no others circumstance to draw an inference that the child witness was tutored, or she was actuated by a motive to falsely implicate the accused persons. The motive was the other way round do not spare the assailant of her mother. Her testimony at no stage reflects any inconsistency so as to call for any corroboration. Few words of truth are more weightier than that of falsehood. It is the quality of the testimony which matters, and not the source from which it has come. This Court is of the view that reliance can be placed on the solitary account of the child witness. 21. On closer scrutiny of the testimony of this witness, it is evident that charge of assault is directed mainly against Appellant No.2. Although, other Appellants have also been stated to be involved in the assault, but the allegation is general and omnibus in nature. Nature of injury does not suggest, that the victim was assaulted by several persons. Further, the incidence took place on the spur of the moment, and there is nothing to suggest that there was any pre-concert on the part of the accused persons to cause death. Under the circumstance the necessary ingredient of section 34 of the IPC, namely participation in furtherance of common intention to commit the offence is not fully established. There is direct evidence of assault against accused Akram Ansari (Appellant no.2) leading to death of the mother of PW-4 and, therefore, the judgement of conviction against him is affirmed. In absence of proof of vicarious liability, charge against other co-accused persons fails and accordingly the Judgment of conviction and sentence is set aside. On the point of sentence, considering the age, antecedent and overall facts and circumstance of the case, a sentence of 4 years R.I will meet the ends of justice. The instant Appeal preferred by Ekram Ansari (Appellant no.2) is dismissed with modification of finding and sentence. The bail earlier granted is cancelled and the Appellant is directed to surrender before the learned Court below, to serve the remaining part of the sentence. The instant Appeal(s) is partly allowed. Their sureties [except appellant no.2- Ekram Ansari] are discharged from the liabilities of their bail bonds. 6 Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 13.03. 2024. sandeep/
Arguments
By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. The instant Criminal appeal is directed against Judgment of conviction and order of sentence both dated 30.06.2012, passed by learned 2nd Addl. Sessions Judge, Hazaribagh in Sessions Trial No.177 of 2005 whereby the appellants have been convicted under Section 304 Part-II IPC and sentenced to undergo RI for 7 years. 2. Informant is the husband of the deceased and as per the fardbeyan on 27.11.2004 in the morning at 5.30 a.m., he had gone 100 yards from his house and was engaged in farming work. At about 8 O’clock, his father (Suleman Mian, appellant no.1) and younger brother (Ekram Mian- appellant no.2) asked him to come to the house. When he went there, he found his wife lying dead in the house of said Ekram Ansari and it was informed by said Ekram Ansari that he had parked his bicycle in the house which led to a minor dispute with the deceased and his mother, Ekram Ansari & his wife. It is alleged that accused, Suleman Mian commanded to kill his wife and they conjointly assaulted her resulting into her death. 3. On the basis of the 'fardbeyan', Police registered First Information Report being Barkatha P.S. Case No.91 of 2004 against the four named accused persons. After investigation submitted charge-sheet against all the four named accused persons was submitted and they were put on trial for the offence under Section 304 IPC. 2 4. 5. 6. 7. Altogether 8 witnesses were examined on behalf of the prosecution and post- mortem examination report and other relevant documents were adduced into evidence and marked as exhibits. Statement of the accused person was recorded under Section 313 Cr.P.C. Defence is of innocence and pleads false implication. Three appellants/accused faced trial and one Halima Khatoon died during pendency of the case and as such, her case was dropped on 04.07.2007. It is argued by the learned counsel for the appellants that all the material witnesses being P.W.2, P.W.3, P.W.5 and P.W.7 including the informant had turned hostile and have not at all supported the prosecution case. P.W.1 and P.W.6 are hearsay witnesses. The judgment of conviction and sentence has been passed on the basis of deposition of P.W.4 (Sonia Khatoon), who was a minor child, aged about 9 years at the time of her examination as a witness. 8. It is submitted that P.W.4 being a child witness in Para-4 has deposed that when her mother was being abused, she ran away to call her father and when returned, she found the deceased to be in unconscious stage. Meaning thereby, she had not witnessed the actual assault. In absence of any eye witness to the incidence, the judgment of conviction and sentence has been recorded on mere conjectures. 9. It is further argued that, it was incumbent on the part of the learned Trial Court to have put question to the minor witness to ascertain as to whether she was able to understand the question and answer it in a proper manner. Unless a certificate to that effect is recorded by the trial Court, the deposition of the child witness cannot be relied upon in view of the ratio laid down by the Hon’ble Supreme Court in the case of Pradeep vs. The State of Haryana [2023 LiveLaw (SC) 501] at Paras 7 & 9 and held that solitary account of the child witness cannot be relied without any corroboration by any witness. The post- mortem examination report mentions only superficial injury, which does not show that there was an intention to cause death. 10. It is further submitted that the place of occurrence could not be established because of the non-examination of the I.O. There is vital contradiction regarding the place of occurrence, as stated in the FIR and that as deposed by P.W.4. In the FIR, the place of occurrence is stated to be in the room of the appellant (Ekram Ansari) whereas P.W.4 has stated the same to be in the courtyard. 11. Learned APP for the State has defended the impugned judgment of conviction and sentence. It is submitted that the inconsistencies which have been pointed 3 out in the deposition of the witness are minor in nature and cannot be regarded as vital contradictions to be fatal for the case of prosecution. Furthermore, contradiction can be drawn with respect to the FIR only with the informant and not of other witnesses. 12. It is submitted by learned APP that the oral account of P.W.4 has been fully corroborated by the injuries found by the Autopsy Surgeon on the person of the deceased. Therefore, it cannot be said that deposition of child-witness (P.W.4) is uncorroborated.