KARU SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by six appellants who have been convicted under Section 395, Indian Penal Code, by the learned Sessions Judge of Patna accepting the unanimous verdict of the jury. The case of the prosecution was that on 5 July 1940 at 11 P. M. a dacoity was committed in the house of Dukhi Singh which stands alone in Mathiani about half a mile from the main village Sabalpur. On that night Dukhi Singh was away but his sons Harnandan and Sita Saran together with their cousin Mahendra Singh and brother-in-law Kamelshwari Prasad were at the house besides some women.

(2.) That there was a dacoity on the night of the 5 is amply established by the evidence and has not been challenged before us. But it was argued that the learned Sessions Judge has misdirected the jury regarding the identification of the accused. Upon a perusal of the heads of charge to the jury I am satisfied that this contention is without any substance. The learned Sessions Judge was careful to point out that the evidence to show that any of the present accused took part in the dacoity consisted only of three witnesses, namely Harnandan Singh, Sita Saran Singh and Mahendra Singh and that when the number of witnesses was small the jury must consider their evidence all the more carefully before they could rely on that evidence to convict any person of a criminal offence. The learned Sessions Judge then proceeded to assist the jury with regard to the material portion of the evidence of the eye witnesses one by one. With regard to the witness Mahendra Singh he pointed out that although it was for the jury to consider his evidence but in view of the circumstances which he narrated he thought that it would be unwise to rely on the evidence of such a witness who gave out the names of the dacoits after such a long period. After this the learned Sessions Judge fairly placed before the jury such comments which arose upon the evidence given in Court by Harnandan Singh. He was careful to point out that Harnandan's story was that when he was awakened up by a lathi blow he flashed a torch and saw the four accused, whose names he knew, close to his bed, though he stated that he only flashed the torch on the face of one man. The attention of the jury was drawn to the fact that Harnandan was the only witness on this part of the occurrence because the evidence of Sita Saran was that by the time he woke up there were many persons near him on the verandah. Lastly the learned Sessions Judge gave the jury such assistance as was necessary with regard to the evidence of Sita Saran. The attention of the jury was also drawn to the first information report. I have read the heads of the charge more than once and I am satisfied that there is no trace of any misdirection such as is sought to be made out which can justify this Court in interfering. It was then strongly argued that the learned Sessions Judge erred in law in admitting the evidence of Sita Saran without a preliminary enquiry (the result of which he should have placed, upon the record) as to whether this boy was capable of understanding the sanctity of the oath. Regarding the evidence of Sita Saran it is stated in the heads of charge to the jury as follows: You have seen this witness who is a boy of about 11 or 12, and you will remember that when boys have taken part or been present at some important occurrence such as a dacoity they are apt to tell wonderful stories to make themselves out very brave. You have heard this boy's story how one dacoit left a box behind which the boy claims to have hidden. You will remember that in this Court he says that he hid it on the bed and covered it with the bed cloths and then sat on top of it. You will consider whether this is probable, I am no lined to think that this would be likely to raise suspicions of the dacoits on seeing him sitting perched up in this way; but it is for you to consider. You will also remember that previously this boy had stated that he hid the box underneath the bed. He has therefore changed his story.

(3.) It is true that the record does not disclose that learned Sessions Judge had satisfied himself, before he allowed the evidence of this witness to be placed before the jury, that the witness was capable of understanding the sanctity or obligation of the oath which was administered to him. But this is a mere irregularity. It may be that the learned Judge thought that gentlemen of the jury would be able to form their own estimate (as the trial proceeded) as to whether this child witness is not intelligent or does not understand the nature and obligation of the oath, or is tutored, and, therefore, his evidence should not be accepted. Reliance was placed by the learned Counsel for the appellants upon the following observations of Sir John Bucknill to be found at p. 651 in Panchu Choudhry V/s. Emperor A.I.R. 1923 Pat. 91 : I should like, however, to point out that it is undoubtedly of very great importance that when the evidence of a child of tender years is adduced, the Judicial Officer should, for the sake of precaution, ascertain, as a preliminary measure, by means of a few simple questions, whether the intelligence of the child is such that (whether sworn or not) it is capable of giving testimony which is patent of credit; and it is certainly desirable that something should, at the commencement of the record of the evidence of the witness of this character, be entered to show that such a test has been in fact made.