JUDGMENT V.D. Chaturvedi, J.
1. This appeal has been filed by the appellant Jhiage against the judgment and order dated 05.04.1982 passed in Sessions Trial No. 25 of 1982 whereby the learned Sessions Judge, Jalaun at Orai has convicted him for the offence punishable under Section 302 I.P.C. and sentenced him to undergo imprisonment for life.
2. The relevant material facts may be summarized as under:
On 15.10.1981 at 5.00 P.M. the complainant Bhoja (P.W.1) S/o Lachhi Chamar, resident of village Usargaon, P.S. Atta, District Jalaun, orally reported at P.S. Atta that on the date of report when he was at his house, his son Prem dashed to him and told him that Jhinge (accused-appellant) had committed the murder of Kasturi (daughter of the complainant's brother Hira Lal); that hearing it, he reached the house of Hira Lal and saw that Kasturi was lying dead and her neck was chopped off by Amkata (a sharp edged weapon meant for cutting mangoes); that his enquiry revealed that his brother Hira Lal was out of the house to excavate the earth; that Smt. Khargi (P.W.4) w/o Hira Lal was also out of the house to pick up woods; that one Ram Charan (P.W.2) also went to pick up woods; that when Ram Charan was returning to his house, Smt. Khargi asked him to send her daughter Kasturi to help her in carrying woods to the house; that Ram Charan at about 3 P.M. raised calls for Kasturi from outside her house but none responded to his calls whereupon he (Ram Charan) asked Km. Vinto, (P.W.3) (daughter of the complainant's another brother Radhey Shyam) to bring Kasturi out; that Km. Vinto went inside the house but immediately came out in perplexed state and told that 'Jhinga Kakka Kasturi ko katar raha hai' (Jhinge is chopping off Kasturi). At that time Prabhawati, wife of Prakash Chamar was also standing there outside the house; that hearing the reply of Km. Vinto, Ram Charan P.W. 2 and Prabhawati entered inside the house and saw that Jhinga S/o Tulsi Chamar, having something in a cloth, was checking out from the house; that pushing aside Ram Charan (P.W.2), the accused Jhinga ran away; that Jhinga's hands and feet were stained with blood; that after reaching inside the house Ram Charan saw that Kasturi's neck was chopped off by Amkata; that she was struggling with death and she succumbed to her injury within no time; that her "bichhua" of the waist was missing; that Ram Charan and Prabhawati raised hue and cry shouting that Jhinga had chopped off Kasturi's neck; that Chhoti (wife of Radhey Lal), Ahmad Noor S/o Abdul Aziz and many others saw the accused Jhinga fleeing from the said house; that Jhinga was chased but in vain; that Hira Lal and Khargi reached at the scene of occurrence after the information was sent to them by the complainant. It was averred in the F.I.R. that Jhinga had committed the murder of the complainant's niece and that he had taken with him the deceased's Bichhua, Payal of silver and Sutia of gold.
3. Upon the said oral information, a case under Section 302/394 I.P.C. was registered at P.S. Atta. The I.O. Sada Bahar Dwivedi P.W. 5 started the investigation. He prepared inquest report and other relevant papers and sent the dead body for postmortem. He also recovered blood stained Amkata and prepared its memo Ext. Ka. 10.
4. The autopsy on the dead body of Smt. Kasturi was conducted on 16.10.1982 at 1.00 P.M. by P.W.6 Dr. G.C. Misra. He assessed her age as about 16 years. The duration of death was found about one day. The Doctor found the following one ante-mortem injury on her person:
Incised wound 9 cm. x 3 cm. x on right side anterior part of neck. Vaginal orifice swollen (labia majora), whitish discharge.
5. The internal examination disclosed that brain was pale, cervical 2nd was cut. The spinal cord was cut at cervical region. The larynx and trachea were cut. The postmortem report Ext. Ka. 17 further showed that the vagina contained white fluid. In Doctor's opinion, the cause of death was shock and hemorrhage.
6. The report of the chemical examination (Ext.Ka 18) showed that blood stains were found in large area of Dhoti, Petticoat, blouse etc. worn by the deceased, and also on Amkata.
7. After recording the statements of the witnesses and after the usual investigation, the 1.0. submitted charge sheet against the accused-appellant for the offence under Section 302 I.P.C.
8. The prosecution produced six witnesses in support of its case. They were P.W. 1 Bhoja, the complainant, P.W. 2 Ram Charan, P.W.3 Km. Vinto, P.W. 4 Smt. Khargi, P.W. 5 S.I. Sri Sada Bahar Dwivedi and P.W. 6 Dr. G.C. Mishra P.W. 1 to P.W. 4 were the witnesses of fact, whereas P.W. 5 was the 1.0. and P.W. 6 was the Doctor who conducted the autopsy.
9. P.W. 1 Bhoja deposed that Hira Lal and Radhey Lal were his real brothers; that Kasturi, the daughter of Hira Lal, was aged about 15-16 years and she was married; that Km. Vinto was the daughter of Radhey Lal; that accused Jhinga is the cousin of the witness; that at the time of murder of Kasturi, Smt. Khargi was in jungle to pick up woods and Hira Lal was also out of the house to excavate earth; that the information regarding the murder of Kasturi was given to him by his son Prem; that he (witness) at once reached the house of Kasturi and saw that Kasturi was lying dead in her room and blood was oozing (from her neck); that her neck was chopped off by Amkata; that the clothes were lying scattered around her; that Ramcharan, Prabhawati and Km. Vinto told the witness that the accused Jhinga, after committing the murder of Kasturi, fled away; that the witness lodged the report. He proved the report Ext. Ka. 1.
10. P.W.2 Ram Charan deposed that on the date of occurrence, he went to the jungle to pick up wood; that when he was returning to his house, Kasturi's mother asked him to send Kasturi to help her, that Kasturi's house was in front of the witness's house; that the witness called Kasturi but there was no response, hence the witness asked Km. Vinto, who was playing there, to tell Kasturi that her mother was in her need; that Km. Vinto went inside the house and came back saying that "Jhinga Kakka Kasturi Ko Kattar raha hai" (Uncle Jhinga is chopping off Kasturi); that hearing it, the witness Ram Charan and Prabhawati (neighbour) entered Kasturi's house; that at the same time the accused Jhinga, having a Potli (bundle of small size) in his hand pushing aside the witness and Prabhawati ran away from there; that Jhinga's hands and feet were stained with blood; that Jhinga's clothes were also stained with blood; that after reaching inside the house, the witness and Prabhawati found that Kasturi was lying dead; that a box was lying open; that Kasturi's neck was chopped off by Amkata and her neck was in between the Amkata.
11. P.W. 3 Km, Vinto was aged about five years. The learned trial Judge, formed the opinion that P.W.3 did not understand the sanctity of oath, hence oath was not administered to her. She stated that about five months back, she, on being asked by Ram Charan, went inside the house of Kasturi and saw that Jhinga was chopping off her sister Kasturi by Amkata; that Jhinga, at the said time, had threatened the witness and showed his anger through his eyes; that the witness thereafter came out and told the occurrence to Ram Charan and Prabhawati.
12. P.W. 4 is Smt. Khargi, the mother of the deceased Kasturi. She deposed that on the date of occurrence she went to the jungle to pick up woods; that the witness's husband was also out of the house at that time; that Kasturi was alone in the house; that when Ram Charan was returning to his house from the jungle, the witness asked him to send Kasturi to help; that thereafter Ram Babu reached her in the jungle and told her that Jhinga had murdered Kasturi; that she (the witness) rushed to her house and saw that her daughter Kasturi was lying dead inside the room; that a pool of blood was there around her and her neck was in between the Amkata that the articles of the box were lying scattered; that Bichhua, Payal etc. were found missing from the dead body; that Kasturi was already married; that accused Jhinga is the Dewar of the witness.
13. P.W. 5, S.I. Sada Bahar Dwivedi was the I.O. He proved the chick report, copy of the G.D. prepared by the Head Moharrir and also proved other papers Ext. Ka 3 to Ka. 16.
14. P.W. 6 Dr. G.C. Mishra proved the postmortem report Ext. Ka. 17, the outcome of which has been reproduced above.
15. The accused appellant, in his statement Under Section 313 Cr. P.C., denied the circumstances appearing against him through evidence and pleaded that Ram Charan had falsely implicated him due to enmity. The appellant's age, as stated by him, was 23 years at that time. He declined to give defence evidence.
16. On the basis of the above evidence, the learned Sessions Judge found the accused-appellant Jhinga guilty of the offence of murder of Smt. Kasturi, aged 16 years and sentenced him to Life Imprisonment.
17. We have heard Sri R. N. Mulla, learned Counsel for the appellant as well as Sri R.K. Singh, learned A.G.A. for the respondent and have perused the record of the case.
18. The learned Counsel for the appellant argued that P.W. 3 Km. Vinto, aged about 5 years, was not capable of keeping in memory about an incident taking place five months back. He argued that a child witness who could not tell the number of months in a year and the number of days in a month, could not be deemed capable of stating that the occurrence took place five months back unless she was tutored on the point. He added that she could not watch the time from the court clock, hence her statement that the occurrence took place at 3 p.m. was also the result of tutoring. He drew our attention to those parts of Km. Vinto's statement wherein she stated that "MAIN POORA NAHIN DEKH PAI THI THODA HI DEKHA THA"and that "MAINE KASTURI KO GHATNASTHAL PAR NAHI DEKH PAYA THA". Taking the base of these statements, he argued that Km. Vinto could not see the whole view of the occurrence, hence her statement should not be relied upon.
19. He argued that reality was that P.W.2 Ram Charan committed rape upon Smt. Kasturi and thereafter committed her murder and falsely implicated the appellant Jhinga. In this light, he argued that it was P.W.2 Ram Charan who, in order to escape from the legal punishment, had tutored P.W.3 Km. Vinto, a child witness.
20. We are conscious that P.W.3 Km. Vinto is a child witness and the oath was not administered to her just because she did not understand the sanctity of the oath. Therefore, we feel it expedient to closely scrutinize her evidence with great caution and care.
21. Km. Vinto stated in her examination in chief that occurrence took place five months back. In cross-examination she could not tell the number of days in a month and the number of months in a year. Therefore, the possibility could not be ruled out that the period of occurrence told by her as five months was either the result of the leading question put on the point by the State counsel or was the result of tutoring. We, therefore, adopting the safest course, exclude this period of five months from her statement.
22. Even after excluding this period of "five months" from the statement of Km. Vinto, it would not adversely effect the prosecution case. The reason is that P.W.I Bhoja, P.W.2 Ram Charan and P.W.4 Smt. Khargi all have stated that the occurrence of murder of Smt. Kasturi took place about five months back. The statements of all these witnesses and that of Km. Vinto were recorded on 22nd and 23rd of March 1982. Besides, the post mortem report also showed that the murder of Smt. Kasturi took place on 15.10.1981, i.e. five months back from the date of the statements of P.W.1 to P.W.4. In these circumstances, the exclusion of the period of incident from the statement of P.W.3 Km. Vinto, would make no difference regarding the truthfulness of her statement.
23. It is also true that Km. Vinto could not watch the time in the clock of the Court. In such circumstances, Km. Vinto's reply to the defence counsel that the occurrence took place at 3.00 p.m. suggests that the said time emerging in her statement was either the result of the tutoring or was the result of the leading question put by the defence counsel, or she borrowed this time of 3 p.m. from the usual discussion made by her family members at different times. The safe mode is to exclude this time also from her statement. This exclusion is also not fatal to the prosecution, because she, in reply to the immediately preceding question put by the defence counsel, had already stated that the occurrence took place in the afternoon. Thereafter, there was no need to ask again about the time of occurrence. Therefore, the time of occurrence stated by her as 3 p.m. does not make any dent in prosecution case.
24. Now, we examine her statement which in its completeness is thus "MAINE PURA NAHT DEKH PAI THI THODA HI DEKHA THA KI MUJHE DHAMKA DIYA THA" and "MAINE KASTURI KO GHATNA STHAL PAR NAHI DEKH PAYA THA, JHINGA NE PAHLE HI DHAMKA DIYA THA" . It appears from it that the frightening scene of the brutal and gruesome murder of Smt. Kasturi, and in its addition, the threat of Jhinga had frightened her away, hence she could not see the face of the victim with cool mind, but could see only this much that Jhinga was cutting off a young girl by Amkata in Kasturi's house. Km. Vinto rightly concluded and told P.W. 2 Ram Charan that Jhinga was cutting off Kasturi by Amkata. Km. Vinto's such conclusion that it was Smt. Kasturi who was being cut by Amkata, finds corroboration from the postmortem report, and other evidence including the evidence of other witnesses and also from the report of Chemical Examiner Ext. Ka-18. Immediately after witnessing the said scene, Km. Vinto told P.W.2 Ram Charan and Prabhawati that "JHINGA kAKKA KASTURI KO KATAR RAHA HAI". P.W.2 Ram Charan and Prabhawati both entered the house of Heera Lal and saw that Jhinga having blood stained feet, hands and clothes went out of the house pushing aside them (Ram Charan and Prabhwati). Ram Charan and Prabhawati saw inside the room that Kasturi was lying dead and her neck was cut by Amkata. Thus, even if we presume for a moment that Km. Vinto could not see the face of Kasturi, still her statement that "Jhinga Kakka was cutting off Kasturi" and none else, finds full corroboration from other evidence on material points. We therefore, have no doubt regarding the truthfulness of Km. Vinto's statement that she saw the appellant Jhinga cutting off Smt. Kasturi by Amkata. She in perplexed state, told the same incident immediately to the witnesses Ram Charan and Prabhawati, who were standing outside the house.
25. We do not agree with the appellant's counsel's argument that a child witness of five years can not remember an incident of the brutal murder of her uncle's daughter taking place five months back. It is true that every incident cannot be kept in memory for a long time but few incidents happen to be so important in the life which cannot be forgotten even by a child witness. The instant incident, for Km. Vinto, was also an incident which she could hardly forget in her life, although it was seen by her at the age of about five years. Besides it, few incidents which are not much material but still they remain in memory only because such incidents are discussed frequently at different intervals. The incident of Kasturi's murder was further an incident which she could have revised at different times whenever it was discussed or asked by her family members and others at different intervals. We, therefore, find nothing unusual if Km. Vinto narrated the said incident in court five months later.
26. One of the contentions of the appellant's counsel is that the statement of Km. Vinto is the outcome of her tutoring by P.W.2 Ram Charan who, according to defence plea, committed rape upon Smt. Kasturi and thereafter committed her murder. That Ram Charan in order to escape from the punishment, has falsely implicated the appellant by tutoring Km. Vinto.
27. The suggestion of the defence counsel to P.W.2 Ram Charan that he and his companions committed rape and thereafter the murder of Smt. Kasturi is baseless and wild. Yet, we examine the probability of tutoring of Km. Vinto by P.W.2 Ram Charan.
28. Hira Lal (father of Smt. Kasturi), Radhe Lal, (father of Km. Vinto) and P.W.I Bhoja are real brothers. P.W.2 Ram Charan is not connected with the family of Hira Lal, whereas appellant Jhinga is the cousin of Hira Lal, Radhe Lal and Bhoja.
29. We are of the view that no person of the victim's family would permit the real culprit to escape for falsely implicating an innocent third person.
30. We are further of the view that the tutoring of Km. Vinto by P.W.2 Ram Charan was not possible without the connivance of Hira Lal, Radhe Lal and Bhoja. In view of the aforesaid relationship, it was highly improbable that Hira Lal and Radhe Lal would permit Ram Charan to tutor Km. Vinto and thereby screen the real culprit to go unpunished and unprosecuted. The said tutoring was further improbable because Heera Lal, Radhey Lal and Bhoja would never permit the real culprit to escape from the legal punishment at the cost of false implication of their own cousin with whom they had no enmity at all. Ram Charan is not related to the victim's family, hence victim's family would not have any sympathy for Ram Charan, had he committed the offence.
31. The reason for the enmity, if any, between the appellant and Ram Charan is not pointed out in any suggestion or in the statement of the accused. Hence, we do not accept that there was any enmity between Ram Charan and the appellant. We, therefore, do not agree with the appellant's counsel's contention that Ram Charan had any interest in falsely implicating the appellant.
32. In view of the above discussion, we disagree with the appellant's counsel's contention that Km, Vinto's statement was the result of any tutoring by Ram Charan or by any one else.
33. We find no infirmity in the statement of Km. Vinto hence, we have no hesitation in relying upon her statement given in Court.
34. The last contention of the learned Counsel for the appellant is that the statement of Km. Vinto does not find corroboration from other evidence.
35. The statement of Km. Vinto finds support from the statement of P.W.2 Ram Charan who saw the accused appellant going out of the house, pushing him aside and Prabhawati. Ram Charan also saw that the clothes, feet and hands of Jhinga were stained with blood. He also saw that Smt. Kasturi was struggling for her life and her neck was cut by Amkata which was also blood stained. The I.O. collected the blood stained Amkata and prepared its memo and sent it for Chemical examination. The Chemical Examiner in his report Ex.Ka 18, found blood stains on Amkata in the area of 20 cm. P.W.I Bhoja and P.W.4 Smt. Khargi, also saw that the neck of Smt. Kasturi was cut off, Amkata was blood stained and that Kasturi was lying in the pool of blood. The postmortem report also corroborates Km. Vintos statement that the neck of Smt. Kasturi was cut off by sharp edged weapon. We therefore, find ourselves unable to agree with the appellant's counsel's contention that Km. Vinto statement finds no corroboration from any other evidence.
36. We find no infirmity in the conclusion arrived at by the learned trial Judge in convicting and sentencing the appellant for the offence of murder of Smt. Kasturi.
37. We, therefore, dismiss the appeal. The conviction of the accused appellant under Section 302 I.P.C. with sentence of life imprisonment is upheld.
38. The appellant Jhinga is on bail. The C.J.M. Jalaun shall cause him to be arrested and lodged in jail to serve out the sentence of Life Imprisonment.
39. The judgment be certified to lower Court immediately for reporting compliance within two months from the date of receipt of a copy of this judgment and order.