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Corroboration of testimony of Child witness is a rule of prudence and nothing more; deposition by child witness after 22 years admitted

HIGH COURT OF TRIPURA
AGARTALA

Crl. A(J) No.21/2014

Sri Tapan Majumder alias Pura Tapan, son of late Satish Majumder, resident of Vill & P.O. Debdaru, P.S. Bikhora,District: South Tripura, Pin- 799141. —-Appellant(s)

Versus

The State of Tripura —-Respondent(s)

BEFORE HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL HON’BLE MR. JUSTICE ARINDAM LODH

For the appellant(s) : Mr. P. K. Biswas, Sr. Adv.
Mr. P. Majumder, Adv.
Mr. D. Biswas, Adv.

For the respondent : Mr. Babul Choudhury, P.P.

Date of hearing : 28.11.2018.

Date of pronouncement : 25.01.2019.

Whether fit for reporting : YES.

Judgment & Order
(Sanjay Karol, C.J.)

Assailing the judgment of conviction, wherein appellant Tapan Majumder alias Pora Tapan stands convicted for having committed an offence punishable under Sections 450 and 302 of the Indian Penal Code (for short, IPC), Mr. P. K. Biswas, learned senior counsel appearing for the appellant, has made two submissions- (a) testimony of PW-7 having witnessed the incident as a child, and thus really being a child witness, cannot be said to be inspiring in confidence; (b) equally, testimonies of Dr. Shyamal Chandra Sarkar (PW-8) and Sri Dayal Guha (PW-9) cannot be said to be believable, for the prosecution introduced and examined them as witnesses for the first time in the Court and that too after a gap of 21 years.

2. At the threshold, it be observed that the alleged incident took place in the night intervening 29-30th August, 1990 in which two persons namely, Rajyeswar Sinha and Sumitra Sinha were murdered. It is the case of prosecution that the present convict along with three other persons, after entering the house of the deceased, killed him and his wife with a sharp edged weapon. The incident was witnessed amongst others by Sujit Sinha alias Rana Sinha and Supriya Sinha, two minor children and Smt. Gyananda Sinha, the mother of the deceased.

3. Report in relation to the alleged incident was lodged at Baikhora Police Station on 30.08.1990 and Case No. 6(8)90 u/Sec. 448/302/34 of IPC was registered against the appellant and three unknown persons.

4. Amongst the police officials, Netai Chandra Das (PW-6) was the first to have reached the spot and furnished information of the incident at Bikhora Police Station. Pursuant thereto, Dipanshu Ranjan Majumder (PW-12) reached the spot and conducted the necessary investigation by cordoning off the area and preparing inquest report (Exhibit-8 & 9); sketch map (Exhibit-10); recovering certain incriminating materials; recording statements of witnesses under Section 161 Cr.P.C.; collecting postmortem examination report of deceased Rajyeswar Sinha and his wife Sumitra Sinha.

5. The Police officials, Netai Chandra Das (PW-6), Swapan Sarkar (PW-11) and Dipanshu Ranjan Majumder (PW-12) investigated the matter, which revealed that deceased Rajyeswar Sinha had died as a result of excessive hemorrhage, shock and cardio respiratory failure following homicidal injury for there were both gun-shot and incised wounds of sharp edged weapon on the body. Also deceased Sumitra Sinha died as a result of excessive hemorrhage, shock and cardio respiratory failure resulting from a stab wound on her right chest.

6. On 01.10.1990, I.O. Dipanshu Ranjan Majumder (PW-12) arrested the present appellant and on completion of investigation, submitted the charge-sheet against the present appellant. Accordingly, on the 31st August, 1992, the appellant was charged for having committed offence punishable u/Sec.452/302 of the IPC. Subsequently on 05.12.2012, the charge was modified and the appellant charged for having committed an offence of house trespass by entering into the house of Rajyeswar Sinha and Sumitra Sinha and thereafter committing the crime of murder.

7. Record reveals that pursuant to the directions issued by the High Court, the matter was further investigated by Swapan Sarkar (PW-11) and statements of the witnesses recorded.

8. The incident happened in the year 1990. The first witness was examined on 16.05.1993; prosecution examined its witnesses till 2014; statement of the accused person u/Sec. 313 of the Cr. P.C. was recorded on 10.02.2014 and the judgment delivered on 28.02.2014. Thus, evidently it took more than 24 years (from 1990 to 2014) for the investigation and trial to be concluded.

9. Here we may also observe that the complainant had attributed involvement of three more persons and only on account of protracted trial, be it for whatever reason, two of the alleged assailants died. What happened to the third one is only left to be guessed, for neither his identity could be ascertained nor investigation completed nor challan presented qua him.

10. At this juncture, we may also take note of the judgment dated 28.04.2011 passed by this Court in W.A. No.20 of 2010, titled as Sri Rana Sinha alias Sujit Sinha vs. The State of Tripura and others. Quite apparently, Sri Sujit alias Rana Sinha (PW-7) had filed a petition seeking further investigation of the matter. The judgment records the fact that the instant appellant avoided the process of law and as such, on 14.11.1994, was declared as an absconder. With his arrest after a gap of 15 years, prosecution sought further investigation which was so allowed by the Court, on the asking of the witness (PW-7). Significantly, in the said proceedings, trial stood stayed till the completion of such subsequent investigation. Only after complete and proper investigation, truth could be unearthed and statements of witnesses recorded by the police.
11. It is in this backdrop, the matter had to be reinvestigated and witnesses examined in the Court after a gap of 21 years.

12. Prosecution has tried to establish the following facts through the respective witnesses:

(a) Factum of death and its cause of death through the testimony of Dr. Shyamal Ch. Sarkar (PW-8);
(b) Occurrence of the incident witnessed by Sri Sujit alias Rana Sinha (PW-7), Sri Dayal Guha (PW-9) & Sri Nemai Banik (PW-10);
(c) Course of investigation carried through the testimonies of police officials, i.e. Netai Chandra Das (PW-6), Swapan Sarkar (PW-11) & Dipanshu Ranjan Majumder (PW-12);
(d) Testimonies of eye witnesses corroborated by the relatives and the neighbour of the deceased being Sri Anil Singha (PW-1), Sri Haradhan Sinha (PW-2), Sri Khokan Majumder (PW-3), Sri Babul Sinha (PW-4) and Sri Narayan Sinha (PW-5).
13. Let us first examine the cause of death.

Dr. Shyamal Chandra Sarkar (PW-8) conducted the postmortem and issued postmortem report (Exhibit-4) of deceased Rajyeswar Sinha and that of deceased Smt. Sumitra Sinha (Exhibit-5). As per the ocular and documentary evidence, Rajyeswar Sinha died as a result of gunshot and incised wound injuries. There was excessive hemorrhage shock and cardio respiratory failure. Deceased Sumitra Sinha also died as a result of injuries sustained by her. Amongst the police officials, Nitai Chandra Das (PW-6) was the first one to have reached the spot and noticed the dead bodies with injuries. In the testimony of Sri Dipanshu Ranjan Majumder (PW-12), it has also come that after reaching the spot, he prepared the inquest report and saw the dead bodies lying in a pool of blood. He is the one who collected the postmortem reports. Thus, insofar as the factum of recovery of dead bodies with the injuries from the spot; the conduct of postmortem and the cause of death is concerned, it stands fully established on record.

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14. We now come to the issue of investigation carried out by the police officials.

PW-6 states that on 29.8.1990 while on patrol duty, at about 12.30 a.m. he heard two sounds which appeared to be that of bursting of bombs. This was near Debdaru market. Accordingly, he proceeded towards the said direction. On reaching the spot, he noticed the son of the deceased crying. Two dead bodies were lying on the floor. An old lady sitting in the courtyard informed that 3-4 persons one of whom was Pora Tapan (present convict) had killed her son and daughter-in-law with a dagger and gunshot. Immediately, he took steps for calling other relatives of the deceased. Resultantly, Anil Singha (PW-1), brother of the deceased Rajyeswar Sinha, reached the spot. Though initially the information furnished was that of dacoity, but later on it stood clarified to be that of murder. After posting two other constables for guarding the house, he went to the TAP camp at Debdaru for furnishing information about the incident through wireless at Police Station Baikhora. Since there was no connectivity, he got the information conveyed through another Police Station. He is categorical in his deposition that “accused Tapan Majumder was a man of rowdy in nature” and “persons of the locality were under his fear”.

15. Another police official, i.e. the Investigating Officer (PW-12) states that after reaching the spot, he cordoned off the area and took photographs of the place; recorded statements of the witnesses; got prepared the inquest report; sketch map; took into possession articles belonging to the deceased and two pellets of gun with a seizure list (Exhibit-12) and sent the dead bodies for postmortem. Other incriminating articles, such as blood stained clothes were taken into possession vide memo (Exhibit-13). Within one day, statements of the witnesses were recorded including that of Dayal Guha (PW-9) and Nemai Banik (PW-10). Proclamation against the accused was issued on 24.9.1990, whereafter accused was arrested and with the completion of investigation, challan presented before the Court for trial.

Significantly, in the cross-examination part of his testimony, he does state that out of mistake he did not cite Dayal Guha (PW-9) and Nemai Banik (PW-10) as witnesses. He has also recorded the statement of one Smt. Gyanada Sundari Sinha on 04.9.1990. He does state that at the relevant time, there was extremism and political violence within the State of Tripura and that he did not investigate the matter from that angle, but purely from the light of criminology. Significantly, he denies false implication of the accused Tapan Majumder for political reasons. At this juncture, we may clarify that there is nothing to substantiate political status or engagement, of the accused.

16. Thus far, we do find the prosecution to have established the circumstance of recovery of the dead body and the investigation carried out without any political bias or malice exhibited towards the appellant.

17. The question which arises for consideration is as to whether prosecution is able to establish complicity of the accused in the crime or not. For elucidation of such fact, we only look into the testimonies of the eye witnesses.

Sri Sujit Sinha alias Rana Sinha (PW-7) is the son of the deceased. At the time of crime, he was a minor aged 6 years, but at the time of deposition, 28 years of age. Obviously, he has to depose as to what all he saw at the time of occurrence of the incident. As such, we proceed on the assumption that testimony of the witness is to be taken as that of a minor.

18. Now, the law on the testimony of minor witnesses is well settled.

19. Section 118 of the Evidence Act reads as under:-
“118 Who may testify. –All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
20. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997 (5) SCC 341), held that: (i) A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. (ii) Even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. (iii) The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. (iv) The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. (v) The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. (vi) This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. (vii) Though child witnesses are pliable and liable to be influenced easily, shaped and moulded, but if after careful scrutiny of their evidence, the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

21. In Golla Yelugu Govindu vs. State of Andhra Pradesh, (2008) 16 SCC 769, the Apex Court while reiterating its earlier view held that:-

“11. 6.Indian Evidence Act, 1872 (in short the ‘Evidence Act’) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S. 523). The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka (2001) 1 SCC 1.”
To our mind testimony of this witness, taken as a child is inspiring and is, in fact free from any external influence. The Court would have no hesitation in accepting the version so narrated by him. Corroboration thereof is a rule of prudence and nothing more.

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In Court, he states that on 29.8.1990 he was in his house at village Debdaru. His sister, grandmother and parents were also there. In the middle of night, the family stepped out to answer the call of nature. On return, while his mother was closing the door, accused pora Tapan along with other 2/3 miscreants forcefully entered the house armed with a knife („dao?) and a gun. The said accused, gave a blow with a dagger to his mother and fired a gunshot at his father resulting into death on account of stab injuries. He watched the incident in the light of the electric bulb. In Court, he identifies the assailant to be the appellant for he knew him from before. Being the resident of the village, he was familiar with him. Further he states that one beggar sleeping in the verandah was also attacked. Also relatives Dayal Guha and Nemai Banik were sleeping in the adjoining room which was partitioned by a bamboo fence. Since police did not carry out a detailed interrogation/investigation, he preferred a petition before the High Court for further investigation.

In the cross-examination part of his testimony, we do notice that there is slight improvement, but then it is with regard to non-disclosure of presence of Dayal Guha and Nemai Banik to the Investigating Officer. But then, this, in our considered view, would not, render the testimony of the witness to be, in any manner shaky or unbelievable. It does not impeach the credit of the witnesses for he clarifies, rather unrebuttally, that the “Darogababu” had only inquired the details of the murder and not the relatives who were sleeping in another room. We cannot forget that at that point in time he was a child, living in a remote area, not knowing the niceties of law and was in a terrified state of mind. An attempt is made to impeach the credit of this witness on the ground of his past conduct. There is a suggestion that he was debarred from attending the school on account of “delinquency”, but then, it does not, in any manner, help the accused for there is nothing on record to establish such fact. Also previous conduct or character of the witness is not in issue. We are convinced about the truthfulness of the testimony of this witness. He pursued the matter relentlessly. The High Court in its judgment referred to (supra) already observed that the accused appeared to be absconding. Also the Court found merit in issuing directions for further investigation. Cumulatively viewed, we find the witness to have categorically established the factum of brutal murder of his parents, through the hands of the appellant.

22. In Khurshid Ahmed vs. State of Jammu and Kashmir, (2018) 7 SCC 429, the Apex Court held that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. [Also: Seeman alias Veeranam vs. State by Inspector of Police, (2005) 11 SCC 142; State of Uttar Pradesh vs. Kishanpal and others, (2008) 16 SCC 73; Guiram Mondal vs. State of West Bengal, (2013) 15 SCC 284]

23. Sri Dayal Guha (PW-9) and Sri Nemai Banik (PW-10), indeed, are closely related/known to the deceased. As such, with caution and circumspection, we proceed to examine their testimonies.

PW-9 is the cousin of deceased Smt. Sumitra Sinha. He does state that on 29.8.1990 both he and Nemai Banik had visited the house of the deceased for inquiring the health of her daughter who had to undertake treatment at Vellore. With the falling of night, considering the prevalent law and order problem, on the asking of the host, they decided to spend the night in the village itself. After taking meals, everyone went to sleep. Both he and Nemai Banik were sleeping in a separate room partitioned by a bamboo fence. In the middle of the night, they woke up hearing sound and cries “save, save”. Peeping through the bamboo partition, they could see four miscreants namely, Anil Singha, Gopal Tripura, Tapan Majumder alias Pora Tapan, the present appellant, assault the deceased. One other assailant could not be identified. He is categorical that Tapan Majumder gave a blow with a sharp edged weapon on the head of deceased Sumitra and also shot deceased Rajyeswar Sinha. All the assailants were armed with the weapons. For the reason that the assailants who were heavily armed were indiscriminately giving blows, they became nervous and fled away to spend the night in the jungle. The incident, as the witness categorically states, was witnessed by him in the light of the bulb. He gave his statement to the “Darogababu” in the chamber of S.P., South, Udaipur.

In the cross-examination part of his testimony, he clarifies that he had narrated the incident to one Manik Majumder who is no longer alive. Though he does not remember the particulars of the “Darogababu” who recorded his statement, but then on a careful examination of his entire testimony it cannot be said that his version, so narrated in the Court, in any manner, is rendered to be doubtful.

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24. We find his testimony to have been fully corroborated by PW-10.

Here we may only observe that the Investigating Officer admits his mistake of not having cited the names of these witnesses in the list of witness. We notice that the names of these witnesses were subsequently included in such list and as such, their testimonies recorded. Hence, the explanation for examining the witnesses after prolonged delay stands explained.

25. Faulty investigation, in any manner, cannot be allowed to suppress the truth. It cannot be said that these witnesses are planted, on a later date, only for strengthening the prosecution case. We only remind ourselves of the directions issued by this Court, directing further investigation.

26. Coming to the other set of witnesses, we notice that Anil Singha (PW-1), brother of deceased Rajyeswar Sinha, states that he was informed of the incident by the police whereafter he reached the spot. He was informed of the incident as also identity of at least one of the assailants, i.e. the present appellant, by the children of the deceased and his mother. This statement, on the principle of res gestae is corroborative in nature.

27. Sri Haradhan Sinha (PW-2) is another brother who was also informed of the said incident.

Sri Khokan Majumder (PW-3) is the immediate neighbour who does state that he was informed of the incident by the son of the deceased. He states that he had heard the gunshot, but out of fear did not come out and also out of fear, he did not inform the police of having subsequently learnt about the involvement of the present appellant.

Sri Babul Sinha (PW-4) is the nephew of the deceased. He only corroborates the testimony of PW-1 and 2. Testimony of Sri Narayan Sinha (PW-5) is also to similar effect.

Having carefully perused the testimonies of these witnesses, we do find them to be admissible in evidence and inspiring in confidence.

28. In State of Madhya Pradesh vs. Ramesh and another, (2011) 4 SCC 786, the Apex Court held as under:

“17. In Sukhar v. State of U.P., (1999) 9 SCC 507, this Court has explained the provisions of Section 6of the Evidence Act, 1872 observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” that it becomes relevant by itself.”
29. Thus, cumulatively viewed, we find the testimonies of the prosecution witnesses to have fully established the prosecution case, beyond reasonable doubt. The testimonies of the eye witnesses are fully inspiring in confidence. They stand corroborated by other witnesses to whom the matter was immediately reported. There are no major discrepancies, material contradictions/embellishments, rendering the evidence to be doubtful, unbelievable or the witnesses unreliable. The deceased died as a result of shooting and stabbing.

In each case contradictions which are minor, inconsistent, embellishment and improvement of trivial matters would have no bearing unless and until the foundation of the prosecution case stands rejected or is rendered doubtful.

30. In Mukesh and another vs. State (NCT of Delhi) and others, (2017) 6 SCC 1, the Apex Court held that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

31. It has come on record that accused Anil Sarkar and Gopal Tripura died during trial.

We notice that there is no motive behind the murder, but then as per the law laid down in Yunis v. State of M.P., (2003) 1 SCC 425 and State of Uttar Pradesh vs. Kishanpal and others, (2008) 16 SCC 73, failure to prove the same in the case of the instant nature bears no consequence, for it has come on record that the present appellant was known to have terrorized the villagers.

32. One finds the trial Court to have elaborately discussed the issue of non-examination of the seized materials by the Forensic or Ballistic experts rendering the prosecution case to be fatal. Well, we are in agreement with the same.

33. Appellant was declared absconder on 14.11.1994 and was arrested on 27.10.2009, which is an additional factor unexplained by the accused in favour of the prosecution. The ingredients of the charged offences under Sections 452 and 302 IPC stand fully established in the instant case.

34. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or complete appreciation of the material so placed on record by the parties.

35. The prosecution has been able to establish its case beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. Findings of conviction and sentence cannot be said to be erroneous or perverse.

36. The appeal against the impugned judgment of conviction and sentence dated 28.02.2014 in S.T. 02 (ST/B) of 1992 titled as The State of Tripura vs. Sri Tapan Majumder alias Pora Tapan passed by the learned Additional Sessions Judge, Belonia, South Tripura stands dismissed.

37. Transmit the L.C. record forthwith.

(ARINDAM LODH), J (SANJAY KAROL), CJ

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