1. Appellants 1 and 2 are father and son respectively. Both of them have been convicted under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life.
2. The prosecution case may be briefly stated. The deceased, his son P.W. 9 and the two appellants belong to village Vejidihi. On 27-2-81 the deceased and his son P.W. 9 had gone to the weekly market at Kadakala and on their return journey they were accompanied by the two appellants. On the way some quarrel took place between the appellants and the deceased and in course of the quarrel appellant 1 gave a lathi blow and appellant 2 gave a bahungi blow to the deceased. As a result of this assault the deceased died at the spot. P.W. 9 returned home and informed his mother, P.W. 6. P.W. 6 informed the village Gramrakhi P.W. 2, the next morning. P.W. 2 came to the village and before him and the other villagers appellant 2 confessed his crime. Appellant 2 also produced a bloodstained Bahungi before P.W. 2. On 1-3-81 at about 12 noon P.W. 2 lodged first information regarding the occurrence with P.W. 10 the then Officer-in-charge of Kanjipani Police Station. P.W. 10 recorded the F.I.R. Ext. 8, registered the present case and took up investigation. In course of investigation the Bahungi produced by appellant 2 before P.W. 2 was sent for chemical examination and according to the report of the Chemical Examiner, Ext. 12, the said bahungi was stained with human blood. After completion of investigation, charge-sheet was submitted against the appellants and they were duly committed to the court of session for trial.
3. At the trial 10 witnesses were examined on behalf of the prosecution and none for the defence. The defence plea is one of complete denial. In their statements recorded under Section 313 Cr. P.C. both the appellants have stated that they have been falsely implicated in this case. Appellant 2 has further denied that he had made any extra-judicial confession. The learned Sessions Judge who tried the case found the appellants guilty and convicted and sentenced them as noted above.
4. P.W. 1 is the doctor who had conducted post-mortem examination on the deadbody of the deceased on 3-3-81 on police requisition. He found the followingexternal injuries:
1. The lower central incisor and the left lower lateral incisor teeth had broken from their original position though present inside the mouth:
2. Skin over the chin to an extent of 2' X V2' was found torn and the mandible was fractured along the line of the left lower lateral incisor socket:
3. One swelling was present over the posterior aspect of the right chest well along the 3rd and 4th ribs, 3' away from the vertebral column measuring 3' X 2' in size with fracture of the 3rd and 4th ribs and blood clots inside the muscles; and
4. One swelling of the size of 3' X 2' on the right side of the mandible with blood clots inside the muscles.
On dissection P.W. 1 found that the pleura of the right side chest wall cavity was torn corresponding to fracture of the rib and there was laceration of the right lung in the mid-zone on the back corresponding to fracture of the ribs.
5. P.W. 1 has stated that the aforesaid injuries were ante-mortem in nature and sufficient in the ordinary course of nature to cause death. Death was caused by shock and haemorrhage as a result of the injuries described above to the vital organs of the body and fracture and dislocation of the 'mandible and teeth. The injuries were likely to have been caused by lathis. Ext. 1 is the post-mortem report. P.W. 1 had also examined the bahungi. M.O.I. sent to him by the police and his opinion contained in Ext. 2 is that the injuries found on the deceased could have been caused by M.O.I. In cross-examination P.W. 1 has explained that the injuries on the mouth of the deceased were caused with one blow and the injuries on the back of the deceased with another blow. He has further stated that the dead body had decomposed at the time of post-mortem examination and that death might have taken place 4 to 5 days prior to the post-mortem examination.
6. As already noted the occurrence took place on 27-2-81 and the post-mortem examination was held at 10.30 A.M. on 3-3-81. There was thus a gap of 2 to 3 days between death and post-mortem examination. Mr. S. P. Misra, learned Counsel appearing for the appellants submitted that reliance should not be placed on the evidence of P.W. 1 as his reasonings and opinion were likely to have been misleading because of the delay in postmortem examination and as admittedly the dead body had decomposed. Scrutinising the evidence of P.W. 1 we find that there has been no cross-examination at all on the question whether the decomposition was of such a high degree that his readings, measurements and opinion were incorrect. Further, the main injuries which resulted in the death of the deceased were caused by fracture of the mandible and also fracture of the 3rd and 4th ribs. Decomposition could not have affected the fractures noticed by P.W. 1. Thus, on consideration of the evidence of P.W. 1 we find that the death of the deceased was homicidal in nature and that the injuries found on the deceased could have been caused by M.O.I.
7. In order to bring home the charge against the appellants prosecution relies on the evidence of the solitary eye-witness, P.W. 9 and the extra-judicial confession of appellant 2. We would take up for consideration the extra-judicial confession first. Admittedly P.W. 2 is the Gramrakhi. He has stated that on the next day following the occurrence to his query before the Villagers appellant 2 stated that he had assaulted and killed the deceased with a bahungi. Thereafter appellant 2 took P.W. 2 to his house and produced the Bahungi, M.O.I. His confession before P.W. 2 is clearly inadmissible as the latter is the Gramrakhi. In court P.Ws. 3 and 4 have stated that after P.W. 2 had left for the village to call other persons, appellant 2 stated before them that he had assaulted and killed the deceased and that P.W. 2 returned only after appellant No. 2 had confessed. The statements of P.Ws. 3 and 4 that appellant 2 had made the extra-judicial confession during the temporary absence of P.W. 2 appears to be a subsequent development of the prosecution case. In his statement recorded under Section 164 Cr. P.C. P.W. 3 had not stated that while P.W. 2 was absent appellant 2 had confessed. In their statements recorded under Section 161 Cr. P.C., P.Ws. 3 and 4 had not stated that after P.W. 2 had gone to the village, appellant 2 had made the extra-judicial confession. In view of these serious contradictions no reliance can be placed on the evidence of P.Ws. 3 and 4 that during the absence of P.W. 2, appellant 2 had made the extra-judicial confession. As already noted appellant 2 has denied in court that he had made any extra-judicial confession and as the extra-judicial confession was made in the presence of P.W. 2, the Gramrakhi, it is inadmissible in law and must be ruled out of consideration. This view of ours finds support in the judgment of this Court reported in (1985) 60 Cut LT 61 Boisakhu Kotlar v. State wherein it was held that an extra-judicial confession made in the presence of a Gramrakhi, who was a Police Officer, was not admissible in evidence.
8. P.W. 5 has stated in court that on the next day following the occurrence, while he and appellant No. 2 were ploughing their respective lands, appellant 1 came and advised appellant 2 that the latter should own. up the responsibility for the crime without involving him. Such advice from a father to his son is most unnatural. Besides, this statement of P.W. 5 in court is not supported by his previous statement recorded under Section 164 Cr. P.C. to which his attention had been drawn in court. P.W. 5 has further stated that to his query appellant 2 admitted to have killed the deceased. This statement in court is again contradicted by his previous statement recorded under Section 164 Cr. P.C. In view of such serious contradictions no reliance can be placed on the evidence of P.W. 5.
9. Once the extra-judicial confession is ruled out, the only evidence against the appellants is the direct testimony of P.W. 9 who is the solitary eye-witness. Law is well settled that a conviction can be sustained on the basis of evidence of a solitary eye-witness provided such evidence is entirely trustworthy ; and above-board. P.W. 9 is a young boy of in about nine years of age. Being the solitary eye-witness and also being a child witness, the evidence of P.W. 9 must be scrutinised with great care and attention. In : 1969CriLJ279 State of Bihar v. Kapil Singh it was held that while a child witness of about 12 years could often be expected to give out a true version because of its innocence, there was always the danger in accepting the evidence of such a witness, because, under influence, he might have been coaxed to give out a version by persons who might have influence on him. In : AIR1950Ori261 Ulla Mahapatra v. King it was held that children of tender age generally speaking, were not to be regarded as trustworthy witnesses as they could easily repeat glibly a story put into their mind and did not possess the discretion to distinguish between what they had seen and what they had heard. Bearing in mind the principles laid down in the aforesaid decisions we proceed to examine the evidence of P.W. 9. At the outset we may point out that the learned Sessions Judge, no doubt, put some questions to P.W. 9 to test his power of understanding. Unfortunately the questions put to and the answers given by the witness have not been recorded, though they should have been. It is always desirable that a trial Judge should leave on record not only the evidence of a child but also the questions he had put to the child witness in the preliminary examination and the answers given by the witness so that, if necessary, the appellate court can come to its own conclusion as to whether the child witness was competent to depose in the case. According to P.W. 9, he was returning with his father and the two appellants from the weekly market. On the way his father and the appellants quarrelled. Appellant 1 assaulted the deceased with a bahungi and appellant 2 assaulted the deceased with a lathi and then they went away. This is all that has been recorded in the examination-in-chief. In cross-examination the suggestion that the appellants had not accompanied him and the deceased from the weekly market has been denied. The learned Sessions Judge has observed more than once in the deposition sheet of P.W. 9 that he kept mum for long spells and gave answers with great difficulty after a lot of hesitation. That may be the reason why there has not been further cross-examination of P.W. 9. The statement of P.W. 9 in examination-in-chief is a bald and cryptic narration which does not inspire confidence. The evidence of P.W. 9 is no doubt supported to some extent by the evidence of his mother, P.W. 6. She has stated that on returning home on the night of occurrence P.W. 9 had stated before her that the two appellants had assaulted his father and killed him. But the evidence of P.W. 9 is not at all trustworthy or reliable. Being the solitary eye-witness and again a child witness who was not able to give clear answers in court, it would not be reasonable or proper to sustain the conviction on the basis of his evidence. The recovery of the blood-stained bahungi on production by appellant 2 before, P.W. 2 cannot by itself form the basis for conviction. On consideration we hold that the prosecution has failed to bring home the charge under Section 302 I.P.C. against the two appellants.
10. In the result, this appeal is allowed. The conviction and sentence of both the appellants are set aside and they are acquitted of the charge. They be set at liberty forthwith.
G. B. Patnaik, J
11. I agree.