JUDGMENT M.C. Jain, J.
1. The appellant is one Zafar alias Budhu who has preferred this appeal against the judgment and order dated 25-11-1981 passed by Sri C. L. Anand, the then IIIrd Additional Sessions Judge, Gorakhpur in Sessions Trial No. 583 of 1980. He has been convicted under Section 302, I.P.C. for the murder of Hidayat Hussain and sentenced to life imprisonment.
2. The broad features of the prosecution case as per the First Information Report and the evidence adduced in the Court may be noted. The incident took place on 28-6-1980 at about 8 a.m. in Mohalla Buxipur P. S. Kotwali, District Gorakhpur. The report was made by the deceased's-father Mohd. Husain P.W. 1 the same day at 9.15 a.m. in which accused-appellant was named. De-ceased-Hidayat Hussain was married to Nasim sister of Nanhe son of Nabidad Khan. Nanhe's daughter Rukhsana was married to accused -appellant. The accused-appellant used to maltreat his wife by harassing and beating her. About 8 months ago, he gave a beating to his wife, who left his house to live with her parents. The accused-appellant wanted his wife to return to his house, but she was not willing to come to his house at any cost. Deceased-Hidayat Hussain used to help his brother-in-law (SALA) Nanhe. The accused-appellant suspected illicit relations between his wife and deceased. He used to ask the deceased to get out of his way. About 7-8 days before the incident, there had taken place a verbal altercation between the two and the accused-appellant had threatened the deceased with death. On the day of occurrence, in the morning, Hidayat Hussain with his son Aizaz had gone to the house of his in-laws and thereafter was proceeding to the butcher's shop with his son to purchase meat. It was the day of Shabebarat. When the deceased with his son reached near the house of Sidhu, the accused-appellant arrived there with a country made pistol and fired on him. Many persons present at the shop including the son of the deceased who was accompanying him saw the occurrence. The accused-appellant was challenged and the persons nearby tried to overpower him. He, however, took out the fired empty cartridges and reloaded his pistol. He warned the persons around not to risk their lives. Thereafter he made his escape good. On receiving information through one Pappu, the informant, Mohd. Hussain P.W. 1 reached the spot which was near Achchan's butchery shop and found his son lying dead. He lodged the First Information Report. A case under Section 302, I.P.C. was registered and investigation followed as usual. It was started by S.I. Basant Lal P.W. 6 and was concluded by S.I. Brij Lal Singh P.W. 7. The dead body of the deceased was subjected to post-mortem which was conducted by Dr. I. P. Singh P.W. 5 on 28-6-1980 at 4 p.m. The deceased was aged about 26 years and following ante-mortem injuries had been found on his person :
1. Gunshot wound 1-1/2"x 1/2" cavity deep on the right middle back 9" below the root of the neck and adjacent to the midline. Margins black, contused and inverted (wound of entry).
2. Gunshot wound 1/2 x 4/10" x cavity deep on the chest 2" inner to right nipple margins black, everted, contused wound of exist 6 pellets recovered underneath this injury.
3. The injuries were caused by fire arm. One cock wadding was also recovered from the dead body.
4. The prosecution examined in all seven witnesses in support of its case besides relying on documentary evidence. Mohd. Hussain P.W. 1 was the father of the deceased and maker of the First Information Report, but not an eye-witness Aizaz alias Guddu P.W. 2 was a child eye-witness who is the son of the deceased and accompanied him at fateful time. Achchan P.W. 3 was the butcher near whose shop the incident occurred. He was examined as an eye-witness, but he supported the prosecution case only in part and was declared hostile. He refused to name the accused-appellant as assailant of the deceased, though he admitted the presence of Aizaz (son of the deceased) at the time of occurrence and also the fact that the victim Hidayat Hussain had died of fire arm injury near his shop. He testified that owing to crowd at his shop he did not see the assailant. He admitted that the accused-appellant-Zafar alias Budhu belonged to his locality and he knew him. The remaining witnesses comprised of the Doctor who conducted the autopsy on the dead body of the deceased and other formal witnesses including the Investigating Officers.
5. The accused-appellant admitted the relationship narrated by Mohd. Hussain P.W.1 but denied the remaining allegations including the one that his relations with his wife were strained. He pleaded false implication on the ground that the complainant owed an amount of Rs. 4000/- to his father for which the demands were made and thus, arose enmity between the two sides. According to him his relations with wife Rukhsana were cordial and that one and half months before the occurrence his wife had delivered a baby. He even examined Smt. P. Mathews as D.W. 1. She was midwife in Nagar Palika, Gorakhpur and deposed with the aid of a register maintained by her in the course of her duties that on 15-5-1980. Smt. Rukhsana had delivered a child.
6. The learned trial Judge believed the prosecution case and evidence. He accordingly convicted and sentenced the accused-appellant as mentioned in the earlier part of the judgment. Aggrieved thereby, he has preferred this appeal.
We have heard Sri V. P. Srivastava, learned counsel for the accused-appellant in support of the appeal and learned A.G.A. from the side of State who has vehemently opposed the appeal and has supported the judgment passed by the learned Addl. Sessions Judge. It has been argued by the learned counsel for the accused-appellant that the case rested on the testimony of child witness Aizaz alias Guddu P.W. 2 which had not been corroborated by any independent source. It has been submitted that the learned trial Court erred in believing his uncorroborated testimony. He has criticized the prosecution case and evidence of Aizaz alias Guddu P.W. 2 as according to him, there are contradictions. It shall be dealt with in the discussion that follows. Another limb of arguments of the learned counsel for the accused-appellant is that there is conflict between the ocular version delivered by the child witness Aizaz alias Guddu P.W.2 and medical evidence. We propose to deal with these submissions of the learned counsel for the accused-appellant in the light of evidence and material on record, attending circumstances and the relevant law.
7. To begin with, the learned counsel for the accused-appellant has made reference to the case of Caetano Piedade Fernandes v. Union Territory of Goa AIR 1977 SC 135 in which it has been laid down that the evidence of a child witness is to be approached with great caution. Indeed, it is the salutary principle of law that the evidence of a child witness is to be scrutinized with great caution and we are in respectful agreement with it. He has also made reference to the case of Sone Lal v. State 1984 All Cri C 378 : 1985 Cri LJ 37 (NOQ) in which the conviction was not based on the uncorroborated testimony of a child. This ruling does not lay down that corroboration of the testimony of a child witness is always necessary. Having regard to the facts and circumstances of that case the uncorroborated testimony of the child witness was held to be insufficient to sustain the conviction, but it was observed that requirement of corroboration of the statement of a child witness is not essential. In case of unlikelihood of tutoring, no corroboration would be required of his statement. So the rule actually is that each case resting on the sole testimony of a child witness has to be examined on its own facts and the attending circumstances. Shortly laid, the rule is that before acting upon the uncorroborated testimony of a child witness, the Court must be sure that his evidence is not the result of coaching. It can be ensured by a very careful and conscious scrutiny of his entire statement and the attending circumstances. Often children are the only eye-witnesses to most serious crimes and they relate the true story without any hitch. Aged witnesses can fabricate story at the moment and can answer the question after giving a thought as to the effect of the answer on the case of their party but there is no such danger in the case of a child witness. The credit to be given to the testimony of the child witness can be judged from a very cautious scrutiny of his entire statement and no precise rule is prescribed in this behalf.
8. Judging the testimony of the child witness Aizaz alias Guddu P.W. 2 in the light of the above legal position we find him to be a trustworthy eye-witness who has narrated the incident in truthful terms. He was aged about 10 years at the time of tendering evidence in the Court and must have been about seven years of age at the time of the incident. He gave rational answers to the questions made to him at his preliminary examination by the learned trial Judge. His name found place in the promptly lodged First Information Report made by Mohd. Hussain P.W. 1. His presence at the spot could not at all be doubted. Even Achchan P.W. 3 (who turned hostile) near whose shop the incident took place had to admit his presence in his statement before the Court. Aizaz alias Guddu P.W. 2 deposed that he and his father were proceeding to the shop of Achchan P.W. 3 to purchase meat and when they reached near his shop and before his father could buy meat, the accused fired a shot as a result of which his father fell near the shop of Achchan. He further stated in clear terms that some persons tried to overpower the accused but he reloaded his pistol and threatened to fire the same. His testimony is also to the effect that his shirt was smeared with blood of his father because after falling down his father had folded him in his embrace. His grandfather Mohd. Hussain P.W. 1 had found him there when he had reached on having been informed of the incident by one Pappu. His blood stained Kurta marked Ext. 10 was produced to corroborate his testimony and to show that he was actually present at the time of occurrence.
9. The non-examination of other independent eye-witnesses is very well explained. Achchan P.W. 3 himself belongs to the locality of the accused-appellant and it seems to be the reason for his having turned hostile under the influence of the accused-appellant. It may be stated at the risk of repetition that he partly supported the prosecution case as to the time and place of occurrence as also the cause of the death of the deceased viz. fire arm injury and the presence of Aizaz alias Guddu P.W. 2 at that time. The incident took place in the locality of the accused-appellant and for the same reason the other independent witnesses might have chosen to keep away instead of coming up to support the prosecution case.
10. We are in agreement with the learned Sessions Judge that Aizaz alias Guddu P.W. 2, though a child witness, is perfectly believable. He was present at the spot who witnessed the incident and truthfully narrated the same before the Court. The prosecution version has been put forth before the Court in unadulterated terms through the mouth of Aizaz alias Guddu P.W. 2. We may point out that if the prosecution had to introduce a fictitious witness, then Aizaz alias Guddu P.W. 2 would have been most ineligible for the job. Instead, someone else more grown up could have been the natural choice. Indeed, Mohd. Hussain P.W. 1 (father of the deceased) who had reached the spot after the incident on being informed by one Pappu could have himself posed as the eye-witness. He being the father of the deceased there could be no possibility of the prosecution case suffering a jerk by his crossing over to the side of the accused at some later stage. We are in judgment that the criticism levelled by the learned counsel for the appellant against Aizaz alias Guddu P.W. 2 is wholly unwarranted and unsustainable.
11. Learned counsel for the appellant has urged of a contradiction that as per the prosecution case the deceased was going to purchase meat at Achchan's shop but no money was found on his person. Suffice it to say in this regard that the meat could be purchased by him on credit or the money could be with Aizaz alias Guddu P.W. 2. We find that he was not cross-examined as to who had the money. Therefore, the argument is not acceptable.
12. Another contradiction pointed out by the learned counsel for the appellant is as to whether Aizaz alias Guddu P.W. 2 was wearing a shirt or a kurta at the time of occurrence. It has been urged that as per Aizaz alias Guddu P.W. 2 he was wearing a shirt which had smeared with blood. On the other hand, Ext. Ka-10 is the blood stained Kurta, and not a shirt. The statement of Brij Raj Singh, S.I. P.W. 7 has been referred to that he had taken in possession bloodstained Kurta from the body of Aizaz alias Guddu. We do not think that it is of much consequence whether it was Kurta. The point of the matter is that the upper garment of Aizaz alias Guddu P.W. 2 (which he has called shirt), was actually smeared with blood when his father, on falling down after receiving gunshot injury, had folded him in his embrace. His description of a Kurta as a shirt does not go to the root of the matter and it cannot at all be a ground to disbelieve his presence at the spot and to have witnessed the occurrence he having withstood the test of cross-examination firmly. We are therefore, of the view that the two contradictions pointed out by the learned counsel for the appellant discussed above are rather meaningless.
13. We now address ourselves to the last argument of the learned counsel for the appellant that there is contradiction between ocular testimony and medical evidence. He has urged that the prosecution case and the evidence of Aizaz alias Guddu P.W. 2 is of one shot having been fired on the deceased. According to the learned counsel the ante-mortem injury No. 2 found on the person of the deceased and designated by the Doctor as exit wound was actually an entry wound, meaning thereby the deceased had suffered two gunshot wounds of entry. He has tried to support the argument by the fact that the ante-mortem injury No. 2 was smaller in dimension than that of injury No. 1. It has been urged that the exit wound can never be smaller than the entry wound. It has further been submitted that the Doctor reported margins of injury No. 2 to be black. The argument is that there could never be blackening in exit wound. On this premise, it is urged that the ocular testimony is in conflict with medical evidence. Learned counsel for the appellant has made reference to the following books to stress his argument as regards the so-called conflict between the ocular testimony and medical evidence :
1. Medical Jurisprudence (Modi), 19th Edition (1995) pages 226 to 227.
2. Medical Jurisprudence by Dr. R. M. Jhala, Fourth Edition page 316 to 327.
3. Fire arm and fire arm injuries by P.W. 4 Dr. I. Bhooshana Rao M.D., Sri N. Jauhari M.Sc. Sri N. M. Supanekar B.A. (Hons.) published by Intelligence Bureau (Ministry of Home Affairs, Government of India).
4. Law and Principles of Forensic Ballistics by R. L. Gupta revised by K. K. Gandhi and R.N. Saxena pages 108 and 109.
5. Forensic Science in Criminal Investigation and Trial by B. R. Sharma, Third Edition.
6. Medical Jurisprudence and Toxicology by H. M. V. Cox, revised by Prof. Barnard Knight, 6th Edition, pages 334, 336.
7. Field's Medico-Legal Guide and Medical Jurisprudence by Ewell, pages 133, 134.
14. Learned counsel for the appellant has also relied on the case of Balak Ram v. State of U.P. 1998 JIC 1105 (All) and Salim Zia v. State of Uttar Pradesh AIR 1979 SC 391.
15. We have carefully considered the matter and we are of the opinion that the argument of the learned counsel for the appellant is not acceptable that there is any conflict between the ocular testimony and medical evidence. The argument does not carry conviction that as per medical evidence, it was a case of two shots. The brief reasons in this behalf may be stated. It is first to be pointed out that no cross-examination was directed of Dr. I. P. Singh P.W. 5 who had conducted autopsy on the dead body of the deceased and had prepared postmortem report Ext. Ka 2. In other words, his report and opinion had not been challenged that ante-mortem injury No. 2 was the exit wound. Nor was he questioned as to how could the exit wound be smaller in dimension than the entry wound. Secondly, it has been pointed out in Modi's Medical Jurisprudence Twenty-first Edition (Fourth print of 1993) at page 267 that firing experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used. The scattering of shot depends upon the choke of the gun the charge of the powder and the distance of the gun from the body. The dispersion of pellets should however be studied with the gun and similar ammunition in question. It is common knowledge that unburnt grains of powder cause blackening of the skin surrounding the wound. In the case at hand, the weapon with which the accused had opened fire at the deceased had not been recovered and no experiment was made therewith. It is not known as to whether it was a standard factory made weapon or a countrymade one. It is not possible to hazard a guess as to what type of weapon and cartridge was which had been used by the accused-appellant. The opinion of the authorities is based on experiments made from standard weapons and standard ammunition. Under the circumstances it cannot theoretically be held that it was a case of two shots simply because of reported marginal blackening in the exit wound (ante-mortem injury No. 2). So far as the dimension of the exit wound is concerned, it is worthy to mention that six pellets had been recovered from the body of the deceased and four pellets had been found by the Investigating Officer at the spot. It is suggestive of the fact that six pellets remained embedded in the body between entry and the exit wound and the four came out and they must be those which had been found by the Investigating Officer at the spot. It is obvious that the cartridge fragmented inside the body and only some of the pellets came out of the exit wound. It explains away the size of exit wound to be smaller than that of entry wound.
16. Balak Ram's case referred to supra and relied upon by the learned counsel for the appellant does not advance his point. He has referred to paragraph 14 of the said ruling which reads as under :
14. Learned counsel for the appellant has also argued that the eye-witness account is contradicted by the medical evidence on the record. It was a chilly evening of February when the incident took place. According to the prosecution case, the deceased was wearing a bush-shirt and a sweater as would appear from the fact that these clothes were taken into possession by the Doctor at the time of post-mortem examination. It is unexplained by the prosecution how blackening and tattooing was found present around the gun shot wound in an area of 3 cm. x 1 cm. when that portion of the body was covered by the above-mentioned clothes. The learned Sessions Judge had tried to overcome the difficulty by observing that some of the pellets may have entered into the body and thereafter the other pellets that followed may have caused blackening and tattooing around the injury sustained by the deceased. If the deceased was wearing a bush-shirt and a sweater at the time of the incident, blackening and tattooing was not possible and the gun powder which causes blackening and tattooing would have deposited on the clothes of the deceased. The reasoning of the learned Sessions Judge does not appear to be sound as it was a case of one gun shot and the pellets would be travelling enmasse without any perceptible time lag.
17. A bare reading of the above paragraph makes it clear that that case was with entirely different facts.
18. Salim Zia's case made mention of above also does not lay down as an invariable rule that the exit wound would be larger than entry wound, irrespective of weapon and ammunition used. The relevant portion of paragraph 7 of the said ruling may be extracted below :
...The High Court has also correctly pointed out that the aforesaid injuries on the person of the appellant were not gun shot wounds as usually the entrance wound in fire arm injuries is smaller and the exit wound is bigger but curiously enough this was not the case here. The High Court has also rightly found that the aforesaid injuries on the person of the appellant could not be gun shot wounds as the exit wound was not only smaller in dimension than the entry wound but was also smaller in dimension than the size of the cartridge (Exh. 7) taken out of the revolver (Exh. 4) which according to the appellant was used by the deceased for causing injuries on his person. The observations of the High Court receive ample confirmation from the statement of Dr. B.C. Joshi which appeals to have been based on his personal experience and notable works of Medical Jurisprudence and Toxicology by celebrated authors like Syndey Smith, John Gallister, Taylor and others that in cases of a bullet injury except where the bullet, gets fragmented after entering the body and only a portion thereof passes out of the exit, wound on the bullet remains embedded in the body and does not pass out in the normal course and is subsequently taken out. or except in case of a point blank wound (which is not the case of the defence) it is practically and usually not possible that the size of the wound of exit may be smaller than the diameter of the bullet. On being shown the aforesaid bullet (Exh. 7) Dr. Joshi stated that if the diameter of the bullet is 8 cm. it could not usually cause the exit wound described as injury No. 2 in Exhibit Kha. II unless the bullet got fragmented inside the body or only a small length thereof pierced and made the exit wound. Dr. Joshi has also expressly stated that considering the data as given in Exhibit. Kha. II it is doubtful that the aforesaid two injuries claimed by Dr. Verma to have been observed by him on the person of the appellant were bullet injuries. Thus the forensic medicine expert evidence in respect of the characteristics of the wounds said to have been observed on the person of the appellant rule out the case of the infliction of the injuries on the person of the appellant by the revolver (Exh. 4).
19. It is clear from the reading of the above that there may be cases where the exit wound may be smaller than the entry wound. Some of such contingencies have been narrated in the portion of the ruling extracted above.
20. To cap it all, the Apex Court has held in a recent case of Leela Ram (D) through Duli Chand v. State of Haryana (1999) 8 JT (SC) 274 : AIR 1999 SC 3717 that in a murder case of shooting, it is immaterial whether one or two shots were fired. Such a contradiction between ocular and medical evidence does not travel to the root of nature of offence.
21. To come to the point, we cannot agree with the learned counsel for the appellant that it was a case of two shots and there is conflict between the ocular testimony and medical evidence. We accordingly reject the last argument advanced from the side of the appellant.
22. Before terminating the discussion, it is also worthwhile to state that it is a case of single accused. There could be no reason for the prosecution to spare the real culprit and to substitute the accused-appellant for him.
23. It follows from the above discussion that it stood amply proved by the trustworthy evidence of Aizaz P.W. 2, finding support from the attending circumstances and medical evidence, that it was the accused-appellant who shot dead Hidayat Hussain on the given time, date and place. He has rightly been convicted for the offence under Section 302, I.P.C. and sentenced to life imprisonment.
24. For the reasons detailed hereinabove touching difference aspects of the case, we find no merit in this appeal and we hereby dismiss it, affirming the judgment of conviction and sentence against the accused-appellant-Zafar alias Budhu passed by the learned IIIrd Addl. District Sessions Judge. The appellant is on bail. He shall surrender forthwith to serve out the sentence.s