STATE OF ORISSA Vs. MACHINDRA MAJHI

JUDGEMENT

(1.) MACHINDRA Majhi (respondent 1 and accused 1) has been acquitted of the charges under Sections 302 and 201, Indian Penal Code and his wife Lal Dei (respondent-2 and accused-2) of the charge under Section 364, Indian Penal code. The prosecution case may be stated in brief. Accused-1 reclaimed a piece of land called Suktaguva by clearing the jungle. There is a su-perstition amongst the aboriginals, the tribe to which the accused belong, that the land is haunted by evil spirits. A kusum tree stood on the Sunktaguva land. It was not cut down in the process of clearance as it was believed to be the abode of deity Maili Debata. To appease the deity the accused wanted to make a human sacri-fice. On 21-4-1962 in the morning, deceased Tuta, a boy of three years, was playing with two other children Ugra and Bilam, who are respectively the grand-son and grand-daughter of the accused. Urlu Majhi P. W. 2, a boy of 8 years, was grazing his goats under a Mohul tree near about the place where the children were playing. While P. W. 2 tried to collect his goats, he saw that accused 2 picked up the deceased and carried in her arms towards Suktaguva land. Sometime later accused 2 again came back near the Mohul tree and took her grand-son and grand-daughter to her house. P. W. 2 asked accused-2 about the whereabouts of the deceased, but she denied knowledge. As the deceased could not be traced out, the mother (P. W. 7) made a search for him and learnt from P. W. 2 that accused2 had taken the boy towards Suktaguva land. To P. W. 7's enquiry, accused-2 stated that she did not know the whereabouts of the boy. There was a thorough search thereafter, but the boy could not be found. On 23-4-1962, P. W. 10, the father of the deceas-ed, lodged a missing report (Ex. 11) stating therein that his son was u'ntraced. On. 30-4-62, Murla Majhi, P. W. i, laxman Majhi P. W. 4 and some others had been to Sudan dangar to hunt hares, at the time of their returning back they found the dead body of a male child lying in the midst of stone in the dangar. P. W. 10 was sent for, he identified the dead body to be his deceased son, At 10 p. m. on that day, F. I. R. (Ex. 1) was lodged. Accused-1 in company of P. W. 4 and others gave watch over the dead body during the night. At about midnight accused-1 made an extra judicial confession before P. W. 4 that he sacrificed the deceased before the deity in his Suktaguva land. On 1-5-1962, P. W. 4 disclosed to P. W. 11 (Bali Majhi) the extra-judicial confession. This is how both the accused were under prosecution. The de-fence is one of complete denial.

(2.) THE learned Sessions Judge, after discussing the various pieces of evidence, held that the prosecution failed to establish its case beyond reasonable doubt. There is no dispute that the boy Tuta Majhi is dead. The learned Judge, however, holds that it cannot be said with any amount of certainty that the death of the deceased was homicidal. This finding, based on the evidence of the doctor, P. W. 12 is unsustainable. P. W. 12 clearly stated that the neck injury could be caused by either of the two knives (M. Os IV and VI) and the injury could cause instantaneous death. There was a suggestion to him that as the dead body was in a highly decomposed condition at the time of post-mortem examination held on 35-1962, it was not possible for him to say that there was a cut injury on the neck. This suggestion was denied. The statement on the basis of which the learned sessions Judge came to the conclusion that the death might not be homicidal is-

(3.) I would now examine if accused-2 carried away the deceased in her arms as deposed to by P. W. 2. P. W. 2 is the son of Tepra Majhi P. W. 3, who is the younger brother of accused-1. No reason has been assigned as to why P. W. 2 would at all implicate accused-2. He does not even implicate accused-1. If tutored, he could implicate both. His positive statement on solemn affirmation is that his aunt (accused-2) came from the Suktaguva land, picked up the deceased and took him in her arms towards Suktaguva land. To his question about the whereabouts of the deceased, she replied in the negative. On a perusal of his evidence, I am fully satisfied that he is a witness of truth and has successfully stood the test of cross-examination. The only comment made against him is that he is a child witness and as there were no preliminary questions put to him to test whether he understood the questions put to him and gave rational answers, his evidence is inadmissible. Despite the caution given by their Lordships of the Supreme Court in Rameshwar Kalyan Singh v. State of rajasthan, AIR 1952 SC 54 that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, it is remarkable that the learned Sessions judge absolutely made no record of his own opinion. For that reason alone, however, the evidence of P. W. 2 is not inadmissible. Section 118, Evidence Act, enacts that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The section has been worded negatively. If the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take the evidence of that witness. Where there is absence of record, but yet the Court proceeds to record the evidence, it must be taken that the Court considered the witness as competent to testify. There is no provision in law to ask preliminary questions to test the capacity of a child witness to testify, though it has always been taken to be a wholesome course to be adopted. The object of such preliminary questioning is not to legalise the evidence but only to save time of the Court not to further progress in the examination of such witness if it is satisfied that the child is not a competent witness. If in fact the child is examined as a witness, the best test of his capacity to testify is the evidence itself and the manner in which it is given. There is nothing illegal in the procedure if the Court satisfies itself by recording the evidence straightway without resorting to preliminary questions : Daru Singh v. Emperor, AIR 1942 Pat 159 and Lakhan singh y. Emperor, AIR 1942 Pat 183. On a perusal of the evidence of P. W. 2 I am satisfied that he fully understood the questions, gave rational answers and was competent to testify. The learned Judge took his evidence on oath. P. W. 2 told his father (P. W. 3) in the morning of 22nd that the deceased had been taken away by accused-2 towards Suktaguva land. P. W. 3 made enquiries from both the accused who disclosed complete ignorance. As they feigned ignorance, he did not inform the villagers about what he heard from his son. P. W. 7, the mother of the deceased, and P. W. 10 the father of the deceased, also deposed to the fact that P. W. 2 intimated them that the deceased had been taken away by accused-2 towards Suktaguva land. They have stood the test of cross-examination. They being closely related to the accused, there is no reason why they would falsely implicate accused-2. On the evidence of these four witnesses, I am satisfied that P. W. 2 saw accused-2 taking the deceased in her arms towaids suktaguva land and that he narrated this fact to P. Ws. 3, 7 and 10. The learned Sessions Judge discarded their evidence on the ground that if P. W. 2's statements were true, it would have been mentioned in the missing report (Ex. 11) and that the accused would have been arrested soon after. There is no much force in this criticism. Accused-2 is very nearly related to the deceased. The deceased carried no ornaments on his body. When on confronting accused-2 denied knowledge of the whereabouts of the deceased, P. W. s 3, 7 and 10 and other villagers did not entertain any suspicion about her complicity. Once the dead body was recovered and the extra judicial confession by ac-cused-1 was made regarding his complicity in the murder, the statement of P. W. 2 that accused-2 carried the deceased in her arms towards Suktaguva land loomed large. In such circumstances, the prosecution case cannot be subjected to the criticism that P. W. 2 was tutored to involve accused-2. If that was so, he could have been also tutored to implicate both the accused. I accordingly hold that accused-2 took away the deceased in her arms towards Suktaguva land. Whether on this ground accused-2 is guilty of any offence would be considered later.