JUDGMENT
Gorachand De, J.
1. Hopna Hansda filed this appeal against the judgment and order of conviction dated 3.12.93 and sentence dated 7.12.93 passed by the learned Sessions Judge, Malda in Sessions Trial No. 15 of 1993 arising out of Session Case No. 34 of 1992 in connection with Habibpur P. S. Case No. 31/89 dated 20.5.1989. By the said judgment, the present appellant was found guilty under Section 302 of the IPC, convicted thereunder and sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2,000/- in default, to undergo RI for six months more.
2. The prosecution case is that on 20.5.1989 at about 18.30 hours, (SIC) Gopinath Barman, Prodhan of Habibpur Gram Panchayet submitted a written complaint to the O. C. of the Habibpur P. S. alleging that one Lakshmi Ram Baskey informed him that while he along with his mother Dhangi Hansda, aged about 35 years, was proceeding towards Kenpukur hat for selling pork, she was attacked by the present appellant Hopna Hansda by means of one Hansua and she was assaulted to death near Jodangi field within Misterpara village. Hearing this, the Prodhan went to the place of occurrence and found Dhangi Hansda lying dead in a pool of blood. So, keeping Baneswar Mondal, a member of the Gram Panchayet to guard the said deadbody, he went to the police station and submitted a written complaint. The said written complaint was treated as FIR and Habibpur P. S. Case No. 31 of 1989 dated 20.5.1989 was started.
3. In course of investigation, inquest was held on the deadbody and the deadbody was sent to the Superintendent of the District Hospital, Malda for post-mortem examination. Different articles were seized from the place of occurrence and the accused was arrested and on the basis of his statement one blood-stained Hansua was seized from the residenee of the present appellant in presence of the witnesses on the basis of seizure list. Hansua was sent for chemical examination along with other articles. Meanwhile, minor son of the victim was placed before the Magistrate for recording his statement under Section 164 of Cr. PC and after recording such statement and after collecting copies of the statement and other materials including the post-mortem report and on completion of the examination of the witnesses, a chagesheet under Section 302/34 of the IPC was filed against Hopna Hansda and Marang Hansda. The case was committed to the Court of Sessions and on perusal of the materials on record, the learned Sessions Judge on 8.1.93 framed a charge under Section 302/34 of the IPC against both the committed accused persons viz. Hopna Hansda and Marang Hansda. Both the accused persons pleaded not guilty to the charge for which the prosecution produced 14 witnesses including the I. O. However, no defence witness was produced, but the defence case as can be ascertained from the trend of cross-examination and answers given by the accused persons under Section 313 of Cr. PC is that they are falsely implicated in this case due to political rivalry.
4. So, the learned Sessions Judge after scanning the evidence on record came to the conclusion that the charge under Section 302 of the IPC was proved against the present appellant Hopna Hansda and accordingly, he was convicted and sentenced in the manner indicated hereinabove.
5. However, Marang Hansda was not found guilty to the charge for which he was acquitted.
6. In the present appeal, the finding of the Trial Court has been challenged.
7. The main contention of the learned Counsel for the appellant is that the finding of the Trial Court was based on uncorroborated oral testimony of a child witness. It is also pointed out after scanning the evidence of the child witness (P.W. 1) that he was tutored by P.W. 2 and Baneswar Mondal (P.W. 4). Mr. Bhattacharyya, learned Counsel appearing for the appellant placing reliance on a decision of the Apex Court , Arbind Singh v. State of Bihar, contended that as there are traces of tutoring the child witness, the appellant should get benefit of doubt for which he should be acquitted.
8. Mr. Bhattacharyya also relied on another decision of the Apex Court, reported in 2003 C Cr LR (SC) 1064, Ratansinh Dalsukhbhai Nayak v. State of Gujarat, to show that the evidence of a child witness is not only to be considered cautiously but it is also to be ascertained after careful scrutiny of the other evidence as to whether there is an impress of truth in the evidence.
9. Mr. Bhattacharyya also analysed the evidence on record and pointed out that the appellant was falsely implicated due to political rivalry and that the charge against the accused has not been proved.
10. Mr. Ghosh, learned Counsel for the State, however, referring to the said decision of Ratansinh Dalsukhbhai Nayak (supra) contended that the evidence of a child witness can be accepted and there is no obstacle in accepting that evidence, if it is found that there is nothing in the evidence to disbelieve. Mr. Ghosh analysed the evidence of the child witness (P.W. 1)) along with the statement made by him before the learned Magistrate under Section 164 of Cr. PC to show that from the very beginning the child witness started to divulge that his mother was killed by Hopna Hansda (the appellant). Mr. Ghosh relying on the post-mortem examination report (Ext. 7) and the evidence of the Autopsy Surgeon, Dr. Ajay Kr. Das (P.W. 11) contended that the brutal murder committed by the appellant gets corroboration from the recovery of Hansua from his residence on the basis of the seizure list (Ext. 5). So, Mr. Ghosh contended that the charge against the appellant has been proved beyond any reasonable doubt and as such the conviction as given by the Trial Court is to be confirmed and the sentence inflicted is to be upheld.
11. At the very outset, we like to point out that there was no eye-witness to the alleged murder, but the prosecution tried to project the son of the victim viz. Lakshmi Ram Baskcy (P.W. 1) as the eye-witness to the incident of murder. P.W. 2, Gopinath Barman who is the Prodhan of the local Gram Panchayat lodged a written complaint alleging that P.W. 1 disclosed before him immediately after the incident that the appellant by means of one Hansua killed his mother. But surprisingly enough, in the substantive evidence of P.W. 2, he remained completely silent about the said disclosure of the name of the assailant by the P.W. 1. It is also interesting to note from the cross-examination of P.W. 2 that he lodged one FIR after finding out the deedbody of the victim and in that FIR he did not name anybody as culprit, but subsequently he filed the present written complaint (Ext. 1) alleging that he got the name of the assailant from the P.W. 1.
12. P.W. 1 in his cross-examination, however, contended that he was tutored by P.W. 2 and Baneswar Mondal (P.W. 4) to disclose the name of Hopna Hansda as the culprit. It appears that the statement recorded under Section 164 of Cr. PC (Ext. 8) does not disclose the date and time of the alleged murder. The Magistrate has not been examined as a witness in this case and there is no indication that the Magistrate had taken any step to ascertain that the statement was voluntarily made and that the child witness was competent to give rational answer. It is also to be noted that at the time of substantive evidence also oath was administered to the P.W. 1 without ascertaining as to whether the witness understood the implication of the administration of oath or whether the witness was competent enough to give rational answer to the question put to him.
13. Most of the witnesses to whom P.W. 1 claimed to have disclosed the name of the present appellant as an assailant, were declared hostile by the prosecution and from their evidences also it is not revealed that the P.W. 1 disclosed the name of the assailant immediately after the alleged occurrence. In this connection, it is also to be noted that this case was not properly conducted by the prosecution and most of the witnesses produced by the prosecution were declared hostile without assigning any reason.
14. Be that as it may, it is sufficiently clear that excepting the P.W. 1, nobody had any occasion to see the alleged incident of murder but the initial disclosure of the P.W. 1 is not proved by any of the witnesses produced in this case by the prosecution. It is also to be pointed out that the investigating agency also did not take any effective step to know the truth. It is claimed by few of the witnesses including the I. O. that one blood-stained Hansua was recovered from the house of the present appellant on the basis of the seizure list (Ext. 5). The I. O. however, claimed that as it was a blood-stained weapon, it was sent for serological test. But surprisingly enough neither the serological report was produced before the Trial Court nor the Hansua was produced for identification. True it is that the Autopsy Surgeon opined that the weapon like Hansua may be called a medium-heavy weight with sharp cutting edge weapon and might have been used in causing the injuries on the person of the victim. It appears from the post-mortem report as well as from the evidence of the Autopsy Surgeon (P.W. 11) that there were 10 incised wounds on the different parts of the body of the victim and there were two specified penetrating wounds. If the seized Hansua would have been produced before the Autopsy Surgeon, it could have been ascertained whether such injuries including the penetrating injuries could be caused by the said Hansua. The reason for non-production of the said Hansua in course of trial has not been explained by the prosecution. So, it is not at all possible to come to the conclusion that all the injuries were caused by a single hand by means of one Hansua.
15. It is to be mentioned that there was indication that the victim was considered to be a witch (Puskin). There is also an indication that for that reason she was filled. Nature of the injuries inflicted on the victim indicates that the injuries can only be caused by several hands by means of several different weapons. So, without judging all these aspects also, it cannot be said easily that the son of the victim (P.W. 1) had any occasion to see the culprit.
16. After careful scrutiny of the materials on record, it can safely be concluded that there is no corroboration to the evidence adduced by the child witness (P.W. 1). On the other hand, it is admitted by the same witnesses that he was tutored to take the name of the present appellant as the assailant of his mother by the P.W. 2 and P.W. 4.
17. Mr. Ghosh was correct when he argued that a conviction on the basis of sole testimony of a child witness is not unwarranted in law, but it is to be pointed out that the evidence of such sole child witness must be free from any extraneous force, influence or tutoring.
18. Along with the aforesaid two cited decisions, we may also refer to the decision of the Apex Court in the case of State of Assam v. Mafizuddin Ahmed, reported in 1983 SCC (Cr) 325, in which it was viewed that the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there was any possibility of coaching or tutoring.
19. From the evidence on record of this case, it is already pointed out that the child witness (P.W. 1) himself admitted that he was tutored. Moreover, there is no reliable evidence to the disclosure, if any, made by the child witness immediately after the occurrence. So, considering all these aspects and also keeping in view the evidence that the complainant and the present appellant belonged to two rivalries political groups, starting a case of this nature against a rival for political gain cannot be ruled out as was rightly argued by Mr. Bhattacharyya, learned Counsel appearing on behalf of the present appellant.
20. After scrutiny of the materials on records, we also take the view that the Trial Court did not take into consideration all these aspects and came to a erroneous finding as to the guilt of the appellant. The judgment of the Trial Court is accordingly liable to be set aside.
21. So, we come to the conclusion that the judgment of conviction and sentence passed by the Trial Court are set aside and the appellant Hopna Hansda is found not guilty to the charge under Section 302 of the IPC and accordingly he is acquitted and he be released from the custody forthwith.
22. Let a copy of this order be sent to the Superintendent, Central Correctional Home, Berhampore, forthwith.
Sankar Prasad Mitra, J.
23. I agree.