N.K. Sen, J.
1. This Rule is against the order of conviction of the Sessions Judge of Midnapere dismissing the appeal preferred by the two petitioners but allowing a portion of it by setting aside the conviction of petitioner No. 1 Purna Chandra Khandra under one count of Section 323, I. P. C.
2. The petitioners were tried by the Assistant Sessions Judge, Midnapore and a jury on charges under Sections 304 and 323 I. P. C. By a majority verdict the petitioners were found guilty. So far as the charge under Section 304 I. P. C. was concerned the jury found petitioner No. 1 guilty and on the other charge under Section 323 I. P. C., also he was found guilty. Petitioner No. 2 Harihar was on the charge under Section 304 I. P. C. found guilty of an offence under Section 325 I. P. C. and he was found guilty on the charge under Section 323 I. P. C. Petitioner No. 1 was sentenced to rigorous imprisonment for six months on each of the charges on which he was found guilty and the sentences were directed to run concurrently. Petitioner No. 2 on being found guilty under Section 325 1. P. C. was sentenced to rigorous imprisonment for two and a half years. He was also sentenced under Section 323 I. P. C. to rigorous imprisonment for six months. The sentences were directed to run concurrently. There was another person on trial who was found guilty by the jury but was however acquitted on appeal by the Sessions Judge.
3. The prosecution case before the Judge and the jury was that on 5-8-1956 the petitioners who are brothers dug a ditch by a northern side of a fencing which was the boundary to the north of the khamar of one Makhan, who was killed in this ease. The result of digging of the ditch was that a part of the fencing broke down. Over this there was a quarrel between the deceased Makhan and his mother Paro Bewa (P.W.6) on the one hand and the petitioners, co-accused Sarat and their mother Sulochana and their sisters Saro and Piro on the other. In course of the quarrel, the petitioner Harihar hit the deceased Makhan on his head with bamboo hank. After he fell down petitioner No. 1 Purna poked him with a lathi. The co-accused since acquitted, was said to have instigated the petitioners by asking them to beat Makhan to death irrespective of the consequences. Paro Bewa, the mother of the deceased tried to intervene but she was also assaulted by the mother and sisters of the petitioners. On hearing the cries of Paro Bewa, the mother of the deceased, her brother Suren appeared on the scene. It is said that as he tried to intervene he too was assaulted by the petitioners and the co-accused and received injuries on his head and other parts of his body. Many people then arrived on the scene and saw a part of the incident. Makhan was carried to his house but no doctor was called to examine him at night. The following morning Makhan and the other injured persons were taken to the doctor at Beliabera and on medical advice they went to Jhargram hospital but Makhan died on the way to the hospital. P.W.I Guhirno, a relation of the parties came in the afternoon of the date of occurrence and heard something about it. He went to the police station, the following morning and then lodged the first information report in the case.
4. The petitioners pleaded not guilty and their case was that Makhan, his mother and other relations of Makhan went to cut some bamboos from the bamboo grove of the petitioners with an axe during the absence of the petitioner Purna. They also went there with lathis with a view to forcibly occupy the lands of the petitioners, claiming the land as their own. At this the petitioners and their mother and sisters protested whereupon the deceased Makhan and his uncles assaulted the mother and sisters of the petitioners causing injuries to them. The petitioner Harihar and the co-accused tried to intervene when the deceased Makhan struck them with the axe and his maternal uncles struck them with lathis. There was a scuffle in course of which Makhun fell down on the peg to which the cattle were tethered and thereby received that injuries that he did. In substance the petitioners raised the plea of the right of private defence.
5. It appears that several points said to be misdirections in the learned Judge's summing up were unsuccessfully urged before the court of appeal below. Mr. Sudhangsu Sekhar Mukherjee appearing on behalf of the petitioners, however, has not repeated those grounds here except those which he considered to be the real points in the case. Among the points taken by him. he has urged the following :
6. It is said that material witnesses were not examined in the court below and the learned Judge's summing up on the effect of this was not adequate nor was it helpful to the jury. The learned Judge on this point has categorically named the parsons who had not been examined in the case and he has at the same time pointed out to the jury the relevant evidence as to whether these witnesses were material or not. After doing so he said that if material witnesses were not examined by the prosecution, the jury might presume that if they had deposed, they would Have deposed against the prosecution. Then he left it to the jury to consider whether the named persons were material witnesses in the case. Thereafter he said that if they were not material, the jury should not presume anything from their non-examination. In our judgment this direction was a sufficiently clear direction and there can be no legitimate ground for any complaint.
7. The next point taken is that the learned Judge failed in his duty in not asking the jury to find where the occurrence had taken place. This criticism, in our judgment, the learned Judge did not deserve. The learned Judge dealt with the place of occurrence and also the defence suggestion that the incident did not take place on the sadar road as was the prosecution case but it took place somewhere on the land of the petitioners where their cattle had been tethered. The learned Judge then went on to place all the relevant evidence and pointed out the defence suggestion that if the defence story on this point was believed, the prosecution story as set up should bo disbelieved and finaly he directed the jury that they were to make a decision as to whether they should accept the prosecution story on the point.
8. On the general summing up, Mr. Mukherjee's criticism was that it was a special pleading on behalf of the prosecution. We have been taken through certain passages from the summing up, torn from their context, in support of this argument. In our opinion this is hardly doing justice to the learned Judge. On a point like this the entire summing up is to be taken into account. If on reading the whole of it an impression is left on the mind that although at times there was a leaning in favour of the prosecution or although strong language was used on occasions coupled with the reminders that the jurors were the sole judges of fact and it was their duty to arrive at their own conclusions, any expression of opinion by the learned Judge cannot be taken any exception to. On the other hand, it is the duty of the learned Judge to give his own views on the facts leaving, of course, the final decision to the jury. The summing up as a whole does not appear to us to be a special pleading on behalf of the prosecution as has been suggested by Mr. Mukherjee and that (sic) it suffers at all, it suffers from its unusual length.
9. The next objection taken is about the learned Judge's directions as to the assessment and the value of the evidence of child witnesses. Mr. Mukherjee's criticism mainly is that although the learned Judge had put questions to the two child witnesses viz. P.W. 3 aged 10 years and P.W. 9 aged 8 years to find whether they were competent to testify yet it was his duty to ask the jury to consider the question again as to the competency of these witnesses. No authority on this proposition as enunciated by Mr. Mukerjee was shown to us but he argued that the principles that are followed in admitting a confession should also be followed in the present case. In other words, it is argued that as a Judge has to decide for himself whether a confession is true and voluntary before letting in evidence and then pointing out the facts to the jury for their decision on tho same point, namely, the truth and voluntariness of the confession, similarly in case of child witnesses the Judge was first of all to decide for himseif the competency of the witness and then again ask the jury to decide tho same question themselves. Mr. Mukherjee has referred to the decision of the Judicial Committee of the Privy Council in the case of Md. Sugal Esa Mamasan Rer Alalah v. The King, 50 Cal W.N. 98 : (AIR 1946 PC 3). That case is hardly of any help to him. It only decides that it was a sound rule of practice not to act on the uncorroborated evidence of a child whether sworn or unsworn but this was a rule of prudence and not of law. It nowhere lavs down that the question of competency of a child witness to depose should be left to the mercy of the jury. The next case cited, is the case of Sailendra Nath v. Emperor : AIR1948Cal104 decided by Roxburgh and Ellis JJ. In this case their Lordships nowhere considered and we think the point was not raised before them about the competency of a child witness to be decided by the jury.
10. Section 118 of the Evidence Act is in the following terms:
'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.'
The competency of a person to testify as a witness b a condition precedent to the administration to him of an oath or affirmation and is a question distinct from his credibility when he had been sworn or affirmed. The Court is at liberty to test the capacity of a witness to depose by putting proper questions. It has to ascertain in the best way it can whether from the extent of his intellectual capacity & understanding, he is able to give a rational account of what he has seen or heard on a particular occasion. If a person of tender years can satisfy those requirements his competency as a witness is established. The question whether a witness has intelligence enough to understand the import and significance of questions or to give rational answers is not the same as the competency to testify. The Court has a discretion to form its own opinion whether a child witness has sufficient understanding to be qualified to be a witness. Sir Ashutosh Mookerjee and Beachcroft JJ., in the case of Nafar Sheikh v. Emperor, 18 Cal WN 147: (AIR 1914 Cal 276), went so far as to say that in view of Section 118 of the Evidence Act it was not obligatory on a Judge to test the capacity of a witness of tender years by appropriate questions & to form his opinion its to the competency of such a witness before the actual examination commences & the mere circumstance that the Sessions Judge did not interrogate the witnesses before their examination began with a view to test their capacity did not invalidate the trial. Following the case of Fakir v. Emperor, 11 Cal WN 51, it was further held that the question of the capacity of the witness to testify is a question for the Judge himself to decide and not for the jury although after he has decided in favour of the competency of the witness, it is for the jury to determine the amount of credit to be given to the statements made by such a witness. In our view this is a complete answer to the argument advanced by Mr. Mukherjee. Another case may be cited to show the futility of the argument advanced. The Supreme Court in the case of Rameswar v. State of Rajasthan, : 1952CriLJ547 , held while considering Sections 5 & 13 of the Indian Oaths Act 1873 along with Section 118 of the Evidence Act that an omission to administer an oath even to an adult went only to the credibility of the witness and not to his competency. The question of competency is dealt with under Section 118 of the Evidence Act. Here the point raised was as to the competency of the witness, a question which in our judgment was within the jurisdiction of the Judge alone to decide.
11. Several other points were also raised by Mr. Mukherjee which made no impression on us and it is not necessary to deal with them at all in view of the fact that the next point with which we shall be dealing presently is in our opinion, a clear misdirection which has enabled us to scrutinise the evidence for ourselves. It is urged by Mr. Mukherjee that the first information report in the case was lodged by one Guhino, prosecution witness No. 1, a relation of the parties, who came after the occurrence was over. Whatever he stated in the first information report was his knowledge derived from what he heard from others. It is argued that so long the others were not examined to substantiate the statement made by the informant in the first information report, the narrative in the first information, was a pure hearsay. The narrative itself might have given jurisdiction to the police to start the investigation but the learned Judge's direction to compare this statement with the statement of other witnesses with a view to finding out whether it supported the prosecution case or net was a misdirection inasmuch as the statement itself would not have been admissible at all. The learned Judge said that it is found that the story as stated in the first information report does not tally with the prosecution case and there are some discrepancies. He then asked the jury to consider the discrepanies between the statement made in the first information report and the story of the prosecution as set up in Court. These are of counsel misdirections of which the prosecution can legitimately complain but then at another place while dealing with the names of the petitioners as mentioned in the first information report the learned Judge said that the jury might consider it along with other evidence. He said 'if you think that false information was not lodged, then you should consider the) statements, made in it regarding the names of the assailants of Surendra along with other evidence adduced in Court.' The learned Judge having thus seriously misdirected the jury on this point, we were taken through the important evidence in the case to see whether or not the verdict returned by the jury was in consequence unreasonable or perverse.
12. The eye witnesses 2, 3, 6 and 9 gave evidence regarding how the deceased Makhan received his injuries on the head. Their evidence is also corroborated by the evidence of several other witnesses, viz. P.Ws. 5, 7, 10 and 11 who came immediately after the occurrence at a time when the deceased Makhan was still lying unconscious on the ground. AS to the nature of injury there is evidence of P.W. 18 Dr. K. K. Basu and Dr. S. C. Das, P.W. 13 who held the post mortem examination. Or the eye witnesses, P. Ws. 3 and 9 are the two child witnesses. The criticism of the defence with regard to these witnesses is that the witnesses are relations of the deceased and as such they had given false evidence. On an examination of the evidence it does not appear that they had really perjured themselves. It must be mentioned that these witnesses are common relations of the parties. Some criticism has been raised on the suggestion that petitioner Puma's wife had been taken away by some of the prosecution witnesses who got her remarried to a third person for which there was ill feeling between the parties. This suggestion has been denied and we are of opinion that there is no reasonable ground for assuming that the same was either a fact or that there was any ill feeling on that score. The defence suggestion that the deceased Makhan received injuries by falling against a peg is completely negatived by the evidence of the medical officer P.W. 13 according to whom the four fractures that were found on Makhan's head could not be caused by striking against one peg and the four fractures could be caused if a man's head strikes against a peg thrice. In our opinion from the evidence of the eye witnesses and other prosecution witnesses, it is quite clear, that the petitioner No. 2 Harihar struck the deceased Makhan with the bank on the head and that the deceased died of the head injury. As regards the petitioner No. 1 Purna, the evidence is that after the deceased had fallen down Purna poked him with a lathi.
13. Having considered the entire evidence as a whole and in the light of the criticism levelled by Mr. Mukherjee, we are of the view, that in spite of the misdirections mentioned above, the verdict of the jury was not influenced in any manner thereby; on the other hand in our judgment on the facts, the charge on the petitioners was abundantly proved by the evidence on record and the sentences passed on them cannot by any means be considered severe and therefore the conviction of the petitioners and the sentences passed on them must be affirmed.
14. The Rule is, accordingly, discharged.
15. The petitioners who are on bail will now surrender to their bail and serve out the sentences' passed on them.
B.K. Bhattacharya, J.
16. I agree.