ASHOK DOME Vs. STATE OF BIHAR

JUDGEMENT

(1.) CR . Appeal (D.B.) No. 129 of 1991 has been filed by Ashok Dome, whereas, Cr. Appeal (D. B.) No. 155 of 1991 has been filed by the appellants Ganesh Dome and Lallan Dome against the judgment and order of sentence dated 30.3.1991 passed by the learned 5th Additional Sessions Judge, Patna in Sessions Trial No. 166 of 1988/ 15 of 1988 by which the appellant Ashok Dome has been held guilty for the offence punishable under Section 302 IPC and Lallan Dome and Ganesh Dome have been found guilty under Section 302/34 IPC and all of them have been sentenced to rigorous imprisonment for life.

(2.) THE prosecution case, in brief, is that on 5.7.1987 at about 6.30 p.m. the informant Pachu Dome (P.W. 2), his mother Phulpati Devi (deceased) and his sister Shanti Kumari (deceased) were present in their house situated in village Turha Dom Toli, Anand Nagar, P.S. Danapur, District - Patna. In the meantime, Ashok Dome, appellant who lives in a nearby hut entered into their house with three persons Kedar Dome (absconder), Lallan Dome and Ganesh Dome (appellants) and asked from the mother of the informant about her husband. She replied that her husband was not present in the house. The appellant Ashok Dome was armed with Chhura and the remaining three were also armed with some weapon which could not be seen by the informant. Ashok Dome and other three scuffled with the mother of informant. She came out of her house and rushed nearby house of Wakil Dome. They followed and assaulted his mother with Chhura causing her death. The sister of the informant followed her mother who was also assaulted with Chhura resulting into her death. Thereafter, all the accused dragged both the body to his darwaja. Lallan Dome and Ganesh Dome are residents of Phulwari and Kedar Dome is resident of Turha Toli. After this occurrence, the informant P.W. 2 rushed to the police outpost and informed about the occurrence prior to reaching the police there all the accused fled away. There was dispute between Ashok Dome (appellant) and the father of the informant for which Ashok Dome was always quarrelling with his father. After the occurrence Dukhan Ram, the father of the informant came there to whom he also narrated about the occurrence. The fard beyan of the informant (P.W. 2) was recorded by Sub -Inspector R. B. Singh (P.W. 3) on 5.7.1987 at 20.15 hours at the spot. On the fardbeyan Danapur P.S. Case No. 164 of 1987 was instituted under Section 302/34 IPC against the appellants and Kedar (absconder). After investigation charge -sheet was submitted, cognizance was taken; the case was committed to the court of sessions. Charge under Section 302 IPC was framed against the appellant Ashok Dome and charge under Section 302/34 IPC was framed against all the appellants which they denied and claimed to be tried.

(3.) THE learned counsel for the appellants has submitted that the whole prosecution case is based on a single child witness. The learned trial court had based his finding only on the basis of the evidence of P. W. 2 who is the son of the deceased Phulwatiya Devi and the brother of deceased Shanti Kumari. Dukhan Ram, the father of P. W. 2 was present at the time of fardbeyan, but he has not been examined even as a hearsay witness. It has also been found by the Investigating Officer, P.W. 3 that the occurrence has taken place where they are several houses, but no witness other than P. W. 2 has been examined on behalf of the prosecution. The whole judgment moves around the evidence of P. W. 2 who is a child witness and on the evidence of a child witness, the conviction should not be made. P. W. 2 has not been able to say the circumstance of the occurrence. P. W. 2 has denied the suggestion of the defence that his mother Phulwariiya Devi has lodged a case against his father Dukhan Ram for causing her burn injury. His version stands falsified by Ext. A the FIR lodged by Shila @ Phulwari Devi, wife of Dukhan Dome vide Phulwari P. S. Case No. 173 of 1986 for the offence punishable under Sections 326 and 307. IPC against Dukhan Dome, her husband. He has further submitted that judgment of conviction should not have been passed on the basis of the evidence of a child witness, P.W. 2. The judgment of conviction of an accused should not be made on the basis of a single witness. In support of his contention, he has referred following decisions: - AIR 1938 Patna 153. Darpan Potdarin vs. Emperor in which it has been held that the evidence of children unless immediately available and unless received before any possibility of coaching is eliminated is notoriously dangerous and it is unsafe to convict on the evidence of a child. AIR 1982 SC 1157 Gambhir vs. State of Maharashtra: it appears that this case was based on circumstantial evidence and it has been held that when a case rests upon circumstantial evidence such evidence must satisfy three tests: - (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. AIR 1980 SC 1621 State of Delhi vs. Vijay Pal - In that case it was found that the prosecution story was based on the testimony of child witness and oral extra judicial confession. The circumstances were raising serious doubts of child 's claims to being an eye witness and also destroying the veracity of evidence regarding the alleged confession and it was held that acquittal was proper. AIR 1983 SC 274 State of Assam vs. Mafizuddin Ahmed - In that case it was held that the conviction can be based on dying declaration provided it was held that there can be conviction on the basis of dying declaration and it is not at all necessary to a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner. (1973) 3 SCC 219, Shivaji vs. State of Maharashtra - In that judgment it has been held that the High Court has full power to review at large the evidence upon which an order of acquittal has been passed by the sessions court. It has also been held that the informant is neither an eye witness himself nor his report is based on the information given by the eye witness. Non -mention of the weapon in the first information report is of no consequence. Where the only witness who claimed to be eye witness was a teenager. Only question for consideration would be whether her evidence was acceptable or not. Her evidence in that connection has to be scrutinized with care and caution. If she stood the test of cross -examination and there is no infirmity in her evidence it cannot be discarded merely on the ground the weapon with which the deceased was done to death was not mentioned in the first information report. This decision is helpful to the prosecution and not the accused. (1976) 2 SCC 217 Bajrang Lal & Anr. vs. State of Rajasthan is with regard to the conviction under Section 5(1) D read with section 5(2) of the Prevention of Corruption Act, 1947 and 120(B), 465 IPC. This decision has not at all bearing in this case. (1986) 4 SCC 439 State of Assam vs. Mohim Barkataki and another. This decision relates to dying declaration where the judgment of trial court was upheld and the judgment of acquittal passed by the High Court was set aside on the ground of dying declaration made before the witness while suffering severe pain from grievous burn injuries was found and held truthful and reliable.