JUDGMENT
S.K. Krishnan, J.
1. Challenging the judgment dated 11.3.1996, Vijaya, the appellant herein, who has been convicted under Section 304(ii) I.P.C., and sentenced to undergo R.I. for five years by the Principal Sessions Judge, Erode, in S.C. No. 71 of 1995, has filed this appeal.
2. On a perusal of the charge sheet, what comes to be known is that on 21.2.1995 at 5.00 p.m., at Sembadavar Street, Bavani, at 17.30 hours, in the wake of wordy quarrel between the accused Vijaya and deceased Ammasai, the accused with intention to commit murder of Ammasai assaulted with fire wood on her head and caused her death and thereby committed an offence punishable under Section 302 I.P.C.
3. To prove the above indictment, twelve witnesses have been examined, fourteen exhibits and nineteen material objects have been marked, on the part of the prosecution, which are, in a nutshell, as follows:
(a) A year prior to the date of examination of P.W.4, Valliyammal, who is the daughter of the deceased Ammasai, around 4.00 p.m., while she was sitting with her mother in front of her house, P.W.2, Ponnammal, who was working as a scavanger, was cleaning the drainage and the deceased asked P.W.2 to clean the drainage in front of her house. At that time, accused also asked P.W.2 to clean the drainage in front of her house, but P.W.2 refused to clean the drainage saying that there was no instructions from her office. Following that a wordy quarrel erupted between the deceased and the accused and while the accused tried to attack with a stick, jacket of the accused was torn. Thereafter, the accused went to her house and after changing her dress, she again came to the house of the deceased and attacked the deceased with fire wood, M.O.1, on her head and the deceased succumbed to her injuries on her way to hospital.
(b) On 21.2.1995 at 18.00 hours, While the P.W.9, Sub-Inspector of Police, Bavani Police Station, was in-charge, he recorded the statement , Ex.P.6, of P.W.1, Veluchamy, and obtained the signatures from P.W.1 and P.W.3, Chandran, who is the son of the deceased and thereafter, P.W.9 registered a case. First Information Report is Ex.P.7 and P.W.9 sent a copy of Ex.P.1 to the Judicial Magistrate, Bavani.
(C) P.W.12, Inspector of Police, who took up the case registered by P.W.9, at 6.30 p.m., for investigation, went to the scene of occurrence and prepared observation mahazar Ex.P.3, rough sketch Ex.P.13, and took some photos at the place of occurrence. Photo copies and negatives are Ex.P.10 and Ex.P.11 series respectively. Thereafter, he conducted inquest on the dead body of Ammasai and prepared inquest report Ex.P.14. During inquest, P.W.12, enquired P.W.1, P.W.2, P.W.5, Shanthi, Arumugam and Balan and recorded their statements.
(d) P.W.12, sent a requisition to P.W.11, Dr. Sathiyavathi, through P.W.8, Venkatachalapathy, for conducting post mortem examination. On 22.2.1995 at 6.30 a.m. P.W.11 conducted post mortem examination. Post mortem report Ex.P.12.
(e) On 21.2.1995 at 10.45 p.m. P.W.12, from the place of occurrence seized M.Os.1 to 4 and M.O.12 in the presence of P.W.7, Chandrasekaran, V.A.O., in the mahazar Ex.P.4 and also P.W.12 seized M.O.5 in the mahazar Ex.P.5. P.W.12 sent a party to nab the accused.
(f) On 22.2.1995, P.W.12, after completion of post mortem examination, sent the M.Os.13 to 19 and M.Os.6 to 9, which have been seized by P.W.8, from the dead body of Ammasai, to the Court in Form.95. At 4.30 p.m. P.W.12 arrested the accused and sent to judicial custody. He sent a requisition Ex.P.8, to send the M.Os. for chemical examination. On receipt of Ex.P.8, P.W.10, Selvaraj, Head Clerk, Judicial Magistrate, Court, Bavani, sent the M.Os. for examination and a copy of the official letter Ex.P.9. Chemical analysis report Ex.P.10 was received on 17.4.1995. Blood test report Ex.P.11 also was received on 18.9.1995.
(g) on 1.3.1995, after completing the examination of all witnesses including P.W.11, Doctor, P.W.12 laid the charge sheet against the accused for the offence under Section 302 I.P.C., before the Court of Judicial Magistrate, Bavani, who in turn, committed the same to the Principal Sessions Court, Erode, which, after completing the trial, examined the accused under Section 281 Cr.P.C., wherein the accused denied the offence.
(h) The trial Court, after taking into consideration of the ocular and medical evidence and also other documents, convicted and sentenced the accused as stated supra. Aggrieved by the same, the present appeal has been filed.
4. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent.
5. The point for consideration is whether the conviction and sentence passed against the appellant/accused is sustainable in law and on facts.
6. The learned counsel appearing for the appellant would contend that even though charge has been framed against the appellant/accused under Section 302 I.P.C., he was convicted only under Section 304(ii) as the leaned Sessions Judge has come to the conclusion on the basis of evidence and the materials available on record that the offence committed by the accused would fall only under Section 304(ii) I.P.C. and not 302 I.P.C., and even for such conclusion, the learned counsel would further contend that, there was no evidence and sufficient materials as to that effect and therefore, the trial court is not justified in arriving at such a conclusion.
7. Further, the learned counsel would contend that the learned Sessions Judge has come to the conclusion only on the basis of the uncorroborated testimony of the daughter of the deceased P.W.4, who was examined by P.W.12 only on the next day of the occurrence, that too to fill-up the lacunae in the prosecution case and therefore, P.W.12 has deliberately created the statement of P.W.4 and sent the same to the court with inordinate delay. If P.W.12, had examined P.W.2 on 22.2.1995, he would have sent the statement of P.W.4 to the court on the same day or the next day but it was sent only on 10.3.1995 and therefore, the learned counsel would further contend that, the statement of P.W.4 had been wantonly created by P.W.12 and forwarded the same with inordinate delay.
8. Further, the learned counsel appearing for the appellant would contend that the evidence of P.W.4 has not been corroborated by any other independent witnesses or even by the interested witnesses, under these circumstances, the conviction and sentence imposed on the appellant/accused are neither sustainable in law nor on facts.
9. Per contra, the learned Additional Public Prosecutor would contend that the learned Sessions Judge arrived at the conclusion only on the basis of corroboration of the evidence of P.W.4 by P.W.11 and therefore, it is not correct to state that the evidence of P.W.4 has not been corroborated and the learned Sessions Judge has rightly concluded that the case made out by the prosecution would fall only under Section 304(ii) I.P.C. and not 302 I.P.C. and therefore, even on this score, no interference is warranted.
10. In this case, out of twelve witnesses examined on the side of the prosecution, P.Ws.1 to 3, and P.Ws. 5 and 6 were turned hostile. On a perusal of the evidence of the witnesses, it is divulged that with regard to the occurrence, there is only one ocular evidence, that is P.W.4, who is the daughter of the deceased and other witnesses are official witnesses excluding P.W.11, Doctor, who conducted the autopsy of the deceased. Under these circumstances, when the entire prosecution case is mainly relied on the evidence of P.Ws.4 and 11, the same should be analysed with utmost care and caution.
11. P.W.4, in her evidence, has stated that she came to her house around 4 p.m., on the day of occurrence, after attending the school. Both herself and her mother deceased were sitting in front of their house. While the P.W.2 was cleaning the drainage work in that area, the deceased asked P.W.2, to clean the drainage in front of her house and at that time the accused also asked P.W.2 to clean the drainage in front of her house, but P.W.2, informed the accused that she would attend the work only as per the instructions given by the officials and therefore, she refused to attend the work in front of the house of the accused. Followed her refusal, a wordy quarrel erupted between the deceased and the accused. In furtherance of the said wordy quarrel between the two, the accused attempted to assault the deceased with a stick. In a brawl, jacket of the accused was torn and thereafter the accused went to her house and changed her dress. The accused again rushed to the house of the deceased Ammasai and took a wooden stick which was kept in front of the house of the deceased and assaulted the deceased on her head and caused injuries. As a result of the attack the deceased fell down and become unconscious. Thereafter the persons assembled there took the injured (deceased) to the hospital by the horse cart and the deceased succumbed to her injuries on her way to hospital and they brought back the body of the deceased and placed the body in front of the house of P.W.4. This is the evidence adduced by P.W.4 with regard to the incident.
12. P.W.11, in her evidence, has stated that in view of the requisition given by the P.W.12, when she conducted the post mortem examination on the dead body of Ammasai on 22.2.1995 at about 6.30 a.m., she found the following injuries.
External injuries : 2 lacerated injuries 5 cm x 2 cm x 2cm over the left parietal region.
Skull: 1. Fracture over both the parietal and temporal bones with subdural hematomas over the corresponding fracture regions.
2. Fracture base of skull present.
Nose : Frothy discharge present.
Abdomen : Visceral organs of Normal weight and congested.
Thorax: Heart – Full of liquid blood. No fracture of ribs or tear of lungs present.
Spines : Normal
Hyoid bone : Intact
Sample of blood preserved with Sodium Citrate and handed over to Police Constable. P.W.11, opined that the deceased would appear to have died of shock and hemorrhage due to head injury, 14 to 16 hours prior to autopsy.
13. On an analysis of the evidence of P.W.4 and P.W.11, it could be seen that though the evidence of P.W.4 regarding injury and weapon has been corroborated by P.W.11, yet what remains most essentially to be corroborated to decide the fate of the case is that whether the deceased was assaulted by the accused or not.
14. In this context, when the important and interested witnesses were turned hostile and taking into consideration of the contention raised by the learned counsel for the appellant that the very presence of P.W.4 at the time of occurrence is doubtful, the reliability of the evidence of P.W.4 is to be decided in the light of the evidence of other witnesses and the circumstantial evidence.
15. Though P.W.4 has stated that the accused assaulted the deceased with fire wood on her head, there is no ocular evidence to corroborate the same either by independent or interested witness and the evidence of P.W.4 is self-explanatory with regard to the eye witness of the occurrence, which is as follows:
vd; mk;khit vjphp moj;jg; gpwF jhd; kw;wth;fs; te;J jLj;jhh;fs;/ mLj;j ehs; jhd; bgz; nghyprhiu ehd; ghh;j;njd;/ mg;nghJ vd;id tprhhpj;J vGjpf; bfhz;lhh;fs;/ vjphp vd; mk;khit mof;Fk;nghJ rk;gtaplj;jpy; ahUk; ,y;iy/
16. P.W.12, the investigating officer, in his cross examination, has categorically stated that he did not see P.W.4 on the day of inquest and has not stated any reasons as to why he examined P.W.4, which is the sole evidence, only on 22.2.1995, and sent the statement of P.W.4 to the court only on 10.3.1995 even after filing of the charge sheet. Since these aspects were not explained by P.W.12 at the time of his examination, which leaves a room for doubt, as contended by the learned counsel appearing for the appellant, whether P.W.4 really was present on the day of occurrence and witnessed the occurrence. Had the P.W.4 present on the day of occurrence, P.W.12 would have enquired P.W.4 along with other witnesses on the day of occurrence itself and her presence would have been referred in the statements of P.W.1 and 6, who were, according to the prosecution, witnessed the occurrence. In these circumstances, the contention of the learned counsel for the appellant, P.W.12, after tutoring P.W.4, wantonly created the statement of P.W.4 only on or before 10.3.1995, has some considerable force.
17. Further, relying upon the decision in MUNNA VS. STATE (1985(2) CRIMES 107), the learned counsel would contend that, unless the evidence of P.W.4, (child witness), who was twelve years old at the time of examination, is corroborated either by direct or circumstantial evidence, it should not be relied on for convicting the accused. In the above said decision, it is observed as follows:
“9. On behalf of the revisionist, it was pointed out that Pappu was a minor child aged about 11 years and his testimony was uncorroborated. Without such corroboration, the testimony of child witness was not reliable. It is well established that Courts must be careful to examine the evidence of a child witness to exclude the possibility of any tutoring vide . It is also true that the evidence of child witness is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. In Raj Ram Vs. State, it was held that the evidence of child witness was to be accepted with great caution. It is correct that legally there is no bar accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn as was held by their Lordships of the Supreme Court in RAMESHWAR KALYAN SINGH VS. STATE OF RAJASTHAN. Their Lordships based their decision on MOHAMMED SUGAL ESA MAMASAN RER AALAH VS. KING.
10. In the aforesaid authorities, reliance was placed upon the observations of Lord Reading in the well known case of King Vs. Baskarville wherein it was impressed that independent evidence from which corroboration was to be sought should be there. Corroboration should not be only about the factum of crime but must also reasonably connect the accused with the same. A similar view was reiterated in RAM HAZOOR PANDEY V. STATE Following principles have to be kept in mind while seeking for such corroboration :-
1. It is not necessary that there should be independent confirmation of every material circumstances in the sense that the independent evidence in the case, apart from the testimony of the child witness, should in itself be sufficient to sustain conviction, all that is required is that there must be some additional evidence rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it.
2. The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the child witness that the accused committed the crime.
3. The corroboration must come from independent sources and thus ordinarily the testimony of one child witness would not be sufficient to corroborate that of another, but of course, the circumstances may be such as to make itself to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
4. The corroboration need not be by direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime, SANATAN BHINDANI V. THE STATE.”
18. Further, relying upon the decision in BHAGWAN SINGH AND OTHERS VS. STATE OF M.P. ( (2003) 1 ACE 514), the learned counsel for the appellant would contend that reliance should not be placed on the testimony of child witness if it is not available immediately after the incident. In para 19 and 20, of the above decision, the Supreme Court expressed as follows:
“19. In our considered opinion, the evidence of the child witness suffers from serious infirmity due to omission of the prosecution in not holding test identification parade and not examining Agyaram to whom as alleged, the child first met after the incident. There are other circumstances discussed by the trial Judge, which also make the evidence of the child witness highly unreliable for basing a conviction.
20. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See: Panchi V. State of U.P., .”
19. With regard to sending of documents by the investigating officers to the Magistrates, certain guidelines were given in K. VADIVELU AND OTHERS, (1976 L.W.(Crl.) 115), following the decision in KARUNAKARAN JABAMANI NADAR IN RE (1974 L.W.(Crl.) 190), which are as follows.
“The following are documents of special importance which, should be dispatched by the investigating officers without any delay to the Magistrates and they should bear the initials of the Magistrate with reference to both the time and date of their receipt:
1. The original report or complaint under Section 154 Crl.P.C.
2. The printed form of the F.I.R. (First Information Report) prepared on the basis of the said report or complaint.
3. Inquest reports and statements of witnesses recorded during the inquests.
4. Memo sent by the Station House Officers to doctors for treating the injured victims who die in the hospital subsequently and the history of the case treatments.
5. Memo sent by the doctor to the police when a person with injuries is brought to the hospital, or the death-memo sent by the doctor to the police on the death of the person admitted into the hospital with injuries.
6. Observation mahazars and mahazars for the recovery of material objects, search lists and the statements given by the accused admissible under Section 27 of the Evidence Act, etc. prepared in the course of the investigation.
7. The statements of witnesses recorded under Section 161(3) of the Crl.P.C.
8. Form No. 91, accompanied by material objects.
20. Relying upon the above said decisions, the learned counsel for the appellant would contend that the statement of P.W.4, though it was recorded on 22.2.1995, yet the same was sent to the Court only on 10..3.1995 and therefore, such document is not admissible under the Evidence Act and therefore, when the statement is not admissible, the sole evidence given by P.W.4, in the absence of any corroborating evidence and in the light of the above cited decisions, should not be relied upon.
21. In consideration of the materials and evidence available on record and upon hearing the learned counsel for the appellant and the learned Additional Public Prosecutor and in the light of the above cited decisions, this Court is of the view that, though the evidence of P.W.4, with regard to injury has been corroborated by P.W.11, yet with regard to overt act, the evidence of P.W.4, has not been corroborated either by the independent witness or even by the interested witness or by the circumstantial evidence, it is unsafe to come to the conclusion that the accused assaulted the deceased with fire wood and thereby caused the death of the deceased, on the basis of uncorroborated testimony of child witness P.W.4, which requires either direct or circumstantial evidence connecting the accused with the crime and in addition to that, when the very presence of P.W.4, is under the mist for the reasons stated above, the appellant is well entitled to the benefit of reasonable doubt and the same is extended to her.
22. In result, the appeal is allowed, setting aside the conviction and judgment of the trial Court and consequently, the appellant/accused is acquitted and her bail bonds are discharged.