1 2025:CGHC:27638-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1187 of 2023 1 - Sukhdev Kerketta S/o Jethu Kerketta Aged About 50 Years Resident Of Village Bada (Khalpara), Police Station Rajpur, District - Balrampur- Ramanujganj, Chhattisgarh. 2 - Pradip Kerketta S/o Sukhdev Kerketta Aged About 25 Years Resident Of Village Bada (Khalpara), Police Station Rajpur, District - Balrampur-Ramanujganj, Chhattisgarh. 3 - Umesh Kerketta S/o Paulush Kerketta Aged About 22 Years Resident Of Village Darkona, Police Station Lundra, District - Surguja, Chhattisgarh. 4 - Mangalsay Kerkewtta S/o - Sukhdev Kerketta Aged About 20 Years Resident Of Village Bada (Khalpara), Police Station Rajpur, District - Balrampur-Ramanujganj, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through- Police Station Rajpur, District - Balrampur-Ramanujganj, Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Shyamta Prasad Sannat, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.06.26 17:13:40 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 25.06.2025 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 06.05.2023 passed by the learned First Additional Sessions Judge, Ramanujganj, District- Balrampur- Ramanujganj (C.G.) in Sessions Trial No. 65/2020, by which the appellant herein has been convicted for offence punishable as under:- Conviction under Section (all the appellants) Sentence (Rigorous imprisonment) (each) Fine (each) In default of payment of fine add. R.I. Section 302/34 of the IPC Life imprisonment Rs. 500/- 30 days Section 201 of the IPC 03 year Rs.500/- 15 days Both the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 06.08.2020, the complainant Ishwar Ram appeared at the police post Bario, Rajpur and submitted a written application (Ex.P-1) to the effect that on 04.08.2020, his father Luhan Lakra was not at home since 12 o'clock at night, and he could not be found on searching. Blood stains were visible on the walls inside the house. Luhan was having a dispute with his neighbor Sukhdev regarding land 3 exchange, and he suspects that his father has been murdered by Sukhdev and his son. On the application of the complainant Ishwar, a missing person report No. 14/2020 was registered at the police post Bario, Rajpur and investigation was carried out. On searching the address, the body of Luhan Lakra was found in the Gagar river, and a rural case No. 0/2020 was registered under Section 174 of the IPC (Ex.P-02) and a recovery panchnama of the body was prepared and the body panchnama proceedings were conducted on the spot. On the basis of inquest information, the First Information Report (FIR) (Ex.P-22) was registered Bhanu Pratap Singh, Head Constable No. 02. 3. During the investigation, Sunil Tiwari, Sub Inspector, (PW-10) gave an application form (Ex.P-04) under Section 175 Cr.P.C. to appear for the death investigation on 06.08.2020 and went to the spot of the incident as per the information given by Ishwar Lakra, the site map of the incident (Ex.P-09 and Ex.P-10) was prepared. On the same date, he prepared the map Panchayatnama (Ex.P- 05) and sent the report (Ex.P-24) to CHC Rajpur for postmortem of the deceased, in compliance with which the doctor gave the report (Ex.P-19). After postmortem of the deceased, the body was handed over to his family (Ex.P-06). Memorandum statement of accused Sukhdev Kerketta and Mangalsai Kerketta was recorded by the Investigating Officer, Sub Inspector Sunil Tiwari in front of witnesses Ex.P-15 and Ex.P-16 respectively. In the case: The seized property included the blood splattered soil taken out from 4 the wall behind the place of incident village Bada, Khalpara of the deceased's house and kept in a plastic box and plain soil taken out from next to the blood splatter on the wall and kept in a plastic box (Ex.P-07), a CD on which the statement of witnesses Abhishek and Babulal was recorded, presented by Satnam Singh Pawale at the police station (Ex.P-08), an iron sabbal (Ex.P-17) with wooden handle attached, the length of the blade of which is 22.2 cm, the length of the handle is 76.2 cm and the roundness between the handles is 07 cm, presented by accused Sukhdev and a Gupti like sword (Ex.P-18), whose total length is 72 cm, presented by accused Mangalsai Kerketta. Length of blade 39 cm, length of handle 23 cm, length of bamboo handle 13 cm, width of middle edge of sword 03 cm, it was seized in front of witnesses. In this case, a written complaint was sent to CHC Rajpur for query of the seized Gupti-like sword and sabbal, in compliance of which query report (Ex.P-20 and Ex.P-21) were given by PW-7 Dr. Chandraprabha Singh. 4. On finding sufficient evidence against the accused, accused Sukhdev Kerketta, Pradeep Kerketta, Umesh Kerketta and accused Mangalsai Kerketta were arrested on 06.08.2020 in front of witnesses as per Ex.P-11, Ex.P-12, Ex.P-13 and Ex.P-14 respectively and information regarding the arrest was given to their relative Rameshwar Bek as Ex.P-26. A written complaint was sent to Judicial Magistrate First Class Balrampur for recording the statement of eyewitnesses Abhishek and Babulal under Section 5 164 Cr.P.C. was sent. In this case, the seized property was sent for chemical testing through Superintendent of Police Balrampur by preparing a draft and sent to Regional Science Laboratory Ambikapur by constable Poonam Pankra No. 502, whose acknowledgement receipt is Ex.P-28. 5. After complete investigation, the final report was presented before Judicial Magistrate First Class Rajpur, District- Balrampur- Ramanujganj, Chhattisgarh. Since the case was to be tried by the Sessions Court, the case was surrendered on the surrender order dated 03-09-2020 and in the learned Sessions Court. 6. On 09-12-2020, Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, framed charges against the accused under Section 302 read with Section 34 IPC and Section 201 read with Section 34 IPC and when the charges were read out and explained to them, the accused voluntarily denied their crime and after prosecution evidence, in the trial of the accused under Section 313 CrPC, said that they were innocent and that they were falsely implicated and when their defence was entered, the accused expressed their intention to give evidence in their defence. 7. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 29 documents Exs.P-1 to P- 29. On behalf of the defence, statement of defence witness Manijar Lakda (DW-01) was recorded but no document was presented in her defence. 6 8. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 06.05.2023, convicted the appellant for offence under Section 302/34 and 201 of the IPC and sentenced as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the appellants herein. 9. Mr. Shyamta Prasad Sannat, learned counsel for the appellants submits that the appellants are innocent and has not committed any offence and they have been falsely implicated in crime in question. The learned trial court has failed to appreciate that the prosecution has failed to prove any circumstances against the appellants and has wrongly convicted the appellants. The learned trial Court failed to appreciate the fact that there are major contradictions and omissions in the statement of the prosecution witnesses, hence the warrant of conviction of the appellants is bad in law. Further, even if the entire prosecution case is taken as it is, the act of the appellants falls under the exception of sudden and grave provocation, so the conviction of appellants under Section 302/34 of the IPC is bad in law. The learned trial Court has wrongly convicted the appellants on the basis of seizure of articles, which has not been duly proved. The prosecution has failed to prove that it is the appellants who committed murder of deceased and there is no overt- act proved against the present appellants. Hence, the present appeal deserves to be allowed. 7 10. On the other hand, Mr. Shailendra Sharma, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that the homicidal death of the deceased has been proved by the postmortem report (Ex.P/19) given by the Dr. Chandraprabha Singh (PW-07). According to the postmortem report the deceased was brutally murdered by accused persons. Further, in the present case, the Abhishek Lakda (PW-3) and Babulal (PW-4) are the eye witnesses of the incident and they have fully supported the case of the prosecution in their statement. It is also pertinent to submit here that, as per the version of Sunil Tiwari (I.O.) (PW-10), the memorandum statement of accused persons Sukhdev and Mangal was recorded vide Ex.P/15 & 16 and the weapon of offence, i.e. iron made Tabbal and Talware were seized vide Ex.P/17 & 18 in presence of PW/5 Satnam Pawle. Thereafter, query report was also obtained with regard to weapon of offence, vide Ex.P/21. The prosecution had submitted sufficient material evidences which prima-facie reveals the involvement of the appellants in commission of alleged offence. The learned Trial Court after appreciating the evidences and records, examining and cross-examining the witnesses came to the conclusion that the accused is guilty of commission of offence charged, accordingly, convicted the accused vide judgment dated 06/05/2023, which is just, proper and reasoned and there is no irregularity in the judgment. It is submitted that the prosecution has proved its case beyond all 8 reasonable doubts and the judgment of trial Court is just and proper. Also, in paras 71 & 72 of the judgment the learned trial Judge observed all incriminating circumstances against the appellants which connects them with the crime and chain of circumstances are fully linked and completed with each other. Accordingly, the learned trial Judge concluded its finding and convicted the appellants for the aforesaid offences. Thus, the prosecution has proved its case beyond reasonable doubt and a judgment of trial Court is just and proper. Accused/appellants were involved in commission of brutal murder of the deceased, which is a serious crime under the law. The prosecution has proved its case beyond reasonable doubt and a judgment of Trial Court is just and proper. In view of the above, the appeal filed in above inscribed provision of law by the appellants is strongly opposed and urged before this Court that the accused shall not be allowed the benefit of such provision in the interest of justice. The principle is well settled that in a case involving a serious offence like a murder punishable under section 302 of IPC, the Court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime as alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused after they have been convicted for committing the serious offence of murder. Therefore, looking the seriousness of offences, as also in view of the fact that such offence in the society have become very 9 rampant and need of the hour is to deal with the guilty of such offences firmly, the present is not a case where the appellants be released, therefore, the appeal filed by the appellants deserves to be dismissed. 11. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 12. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 13. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased to be homicidal in nature ? 14. In this regard, Ishwar Yadav (PW-1), who is a reporting witness, said that when he reported his father missing, the police came to investigate in the morning. Then, they went to look for their father with the police and the police were searching in a different direction. Then, he and the villagers found his father's body floating in the Gagar river. When a person from the village informed the police, the police also came there. They saw his father's body floating in the water. An injury was visible on the back of his father's head. On the instructions of the police, he, his elder uncle Mohan and brother Bindeshwar took out the body from the river. The police did some paperwork there. The body of 10 the deceased was found floating in the Gagar river, for which the police made the recovery panchnama (Ex.P-09'A'). 15. After his father's dead body was found, a notice for postmortem was given by the police, which is Ex.P-4. Postmortem was done in his presence and at the time of postmortem, he had seen injuries near the chest and mouth of the deceased. Thereafter 'postmortem panchnama' (Ex.P-5) was prepared by the police. The witness said that the police took the dead body for postmortem. 16. Karamsai (PW-2) said that after the dead body of the deceased was found, the police had given them notice (Ex.P-4) to prepare the body panchanama and had taken their signatures. The body panchanama was again prepared there. The police had prepared the body recovery panchanama (Ex.P-9A). Then the police had sent it for postmortem at 10-11 am, then they had also gone there. 17. Sunil Tiwari (PW-10), Sub Inspector who is the Investigating Officer, told that he recovered the body of the deceased Luhan Lakra from the spot itself and made a recovery panchanama in front of witnesses. In the body panchanama/map panchanama at the spot, he issued notice to the witnesses to appear, which is Exhibit P-4A. Thereafter, he got the proceedings of the body panchanama done in front of the panchanas, which is Exhibit P- 5A. On the same date, constable No. 400 Rajnikant filled the body 11 form for PM and sent the body of the deceased to CHC Rajpur for PM, which is Exhibit P-24. 18. Thus, the death of the deceased Luhan has been stated to have taken place whose body was found floating in the Gagar river and the Panchanama of his body has been prepared in the presence of witnesses and the body has been sent to the doctor for post mortem. 19. Dr. Chandraprabha Singh (PW-7) deposed that on 06.08.2020, the body of deceased Luhan Lakra was brought before her for postmortem by constable No. 400 Rajnikant Mishra and constable No. 1143 Ashok Goyal from police station Rajpur, outpost Bario, District Balrampur, then she conducted the postmortem of the body of deceased Lohan. 20. On conducting the postmortem, she found that both the hands and legs of the deceased had stiffness, eyes were closed, tongue was cut by teeth. The skin of the body was peeling off and the colour of the skin had become yellow and war moment was present in the sole of the feet of the deceased which is found when the deceased stays in water for a long time. The deceased was of normal height and was wearing blue coloured underwear. There was a cut mark on the back of the neck. The length of which was 21 cm and depth was 5 cm. There was a cut mark from the right eye of the deceased passing through the mouth to the left throat, the length of which was 6 cm and depth of 2 cm. There 12 was a cut mark on the left side of the neck of the deceased, the length of which was 10 cm and depth of 5 cm and the chest bone of the deceased was completely broken and the jaw was also broken. External and internal examination- 1. Skull and cranial vertebrae membranes were normal. 2. Brain and spinal cord were found injured. 3. The diaphragm and ribs were completely broken. 4. Lungs were normal. 5. There were injury marks and cuts in the throat and windpipe. 6. Right and left lungs were yellow in colour. 7. Perion, pericyte were normal. 8. Heart was torn. 9. Large vessels were normal. 10. The diaphragm was normal. 11. Intestinal membranes were normal. 12. Mouth and oesophagus, pharynx were normal, tongue was cut by teeth and blood was present. 13. Stomach food was present. 14. Digested food was present in small intestine, feces were present in left intestine, liver, spleen, kidney were yellow in colour. 13 15. Urine bladder was empty. The deceased died due to above injuries which occurred within 72 hours. She opined that the cause of death of the deceased was due to the stoppage of his heartbeat and serious injury in the spinal cord which goes from the neck to the back of the head. The main cause of death was due to the reduced blood flow in the head of the deceased. The nature of death was homicidal. The postmortem report given by her is Exhibit P-19. 21. The body of the deceased was found floating in the Gagar river and it is said that there were injuries on his body and the cause of death as stated by the doctor was the stopping of his heartbeat and serious injury in the spinal cord which goes from the neck to the back of the head and the main cause of death was due to reduced blood flow in the deceased's head. Thus, the nature of the death of the deceased has been stated by the doctor to be homicidal. Thus, it is clear that the death of the deceased has occurred under unusual circumstances. 22. The next question is that whether the accused together form a common intention to murder the deceased due to the previous land dispute and caused the intentional death of the deceased by hitting him with tabbal (battle axe), gupti (knife) and sword? 23. In order to answer the question, it would be appropriate to notice the provisions contained in Section 118 of the Evidence Act, which states as under:- 14 “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.” 24. The case is based on eyewitness evidence and for this purpose the evidence of Abhishek Lakra (PW-3) who is a child eyewitness and Babulal (PW-4) who is also an eyewitness and also a chance witness is important. 25. Ishwar Lakra (PW-1), who is the reporting witness, told that the deceased Luhan Lakra was his father who lived alone at a distance of about 2000 feet from him and his 8-year-old son Abhishek used to sleep with him at night. On the incident date 04- 08-2020, his son went to sleep with his grandfather/deceased. At around 8 in the morning, his son Abhishek came home and told that his grandfather was not at home since around 11 pm. Sukhdev and his companions were quarreling with his father. When his son Abhishek informed him about his father's disappearance, he went alone to his father's house. His father was not found at home, when he looked around the house, he saw blood stains on the wall behind the house and a dragging mark was visible in the garden. Then he told his family members about the above incident. Where the dragging mark was found, he went there with his family to look for it further, but could not find anything. Thereafter, he, his brother Karmasai, Ishwar and uncle Duhan, Surajdev of the village went to the police post Bario in the 15 night itself and informed the police about his father's disappearance. He further deposed that, his elder uncle Mohan and brother Bindeshwar had taken out the dead body from the river on the instructions of the policeman. The policeman had done some paperwork there. The dead body was handed over to him after the postmortem. The police did not seize any material in his presence and voluntarily said that the police came to his father's house and seized blood-soaked soil from there. The police interrogated him and recorded his statement. The police came to the place of incident (his house) and prepared a site map Ex.P-09. Thereafter he had prepared a visual map of the place of occurrence which is Ex.P-10 26. In the cross-examination, the witness admitted that he had dictated the written report and had got it written by someone, and had also read it. The witness admitted that the old house in which his father lived was adjacent to the house of Lusan, Suresh, Surajdev and Ishwar, but he had not questioned the persons living in the said house about the quarrel between accused Sukhdev and his father. 27. Before discussing the evidence of the child witness, it would be advantageous to refer to the law relating to child witness. Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this section, all persons are competent 16 to testify, unless they are, in the opinion of the Court, (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (I) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account 17 of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in positive, the Court will not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come 18 out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth. 28. In Ratansinh Dalsukhbai Nayak v. State of Gujarat [(2004) 1 SCC 64], Hon’ble Supreme Court stated the law, thus: "6. Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. Age of the witness during examination was taken to be about 10 years. 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. 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 19 quality thereof and reliability can record conviction, based thereon" 29. In the matter of Panchhi v. State of UP 1 the Supreme Court has held as under:- “.....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” 30. With regard to the testimony of child witness the Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & others 2 had noticed the case law and held as under: “The Indian Evidence Act, 1872 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. 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 1 (1998) 7 SCC 177 2 (2009) 12 SCC 731 20 thereof and reliability can record conviction, based thereon. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129}. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p.343, para 5) :- “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words 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 questions and able to given rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. 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.” 31. The position of law relating to the evidence of a child witness has been dealt with also by the Supreme Court in Nivrutti Pandurang Kokate and others V. State of Maharashtra 3 and Golla Yelugu Govindu v. State of Andhra Pradesh 4 . In the case of State of U.P. Vs. Krishna Master & Others 5 the Supreme Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and 3 2008 (12) SCC 565 4 2008(4) SCALE 569 5 (2010) 47 OCR (SC) 263 21 would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. 32. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court noticed hereinabove, in the present case, at the time of recording of the evidence of Abhishek Lakra (PW-3), he was aged about 08 years. 33. Abhishek Lakra (PW-3), who is a child eye witness, deposed that the deceased Luhan was his grandfather, who was killed by Sukhdev and his younger son Mangal and another man with them, whom he saw killing. This witness identified the three accused that one person is Sukhdev, the second person is his son and the third person is their companion, who killed his grandfather with a tabbal and a sword and killed him on the spot. At that time, little rain was falling from the sky and blood was scattered there. The witness says that the accused could not see him and he, being afraid of them, went inside the house and hid in the bed. The said incident happened at night and on the said date, there was no one else in the house except him and his grandfather. The witness says that at a little distance, his mother-father lived in a separate house, but one could not reach there in one breath. The witness further says that his mother had beaten him, so he had come to sleep with his grandfather. The witness says that he was sleeping on the cot with his grandfather and he 22 felt like urinating at night and it was raining, so he woke up. He had come out of the room to urinate in the courtyard. Then he saw his grandfather being beaten up near the corner of the house. There were three men at the time of the incident. He told his father about the incident on the morning. 34. Thus, the evidence of the child witness must be corroborated by other evidence, and it should not be taught by anyone, so that the evidence of the child witness can be fully trusted. According to the above judgments, the Voir Dire test of the child witness has been taken in the trial Court and his general knowledge has been tested and the evidence of the child witness has been taken only after being fully satisfied and the child witness has not been given under any kind of pressure or by any other person. It has not been shown that the evidence was given under influence or after being taught by someone, hence the evidence of consecration is not shown to be rejectable. 35. Babulal (PW-4) who is a chance witness and another eyewitness says that he knows the accused and Luhan. The accused had beaten Luhan and made him fall. Accused Sukhdev hit him with a tangia and Mangal with a sword and the third accused was standing there. The incident took place last night during Rakshabandhan. He had seen the incident taking place. On the day of the incident, he had eaten and slept at his home and his daughter was having fever, so he had gone to Luhan's house at around 12:00 in the night to ask for medicine for the fever. Then 23 he saw the incident taking place near Luhan's house. He went to his house after the incident and seeing the above act of the accused, he did not tell anyone out of fear, rather he quietly slept in the house. He told about the incident to Luhan's son Ishwar in the evening. His daughter had fever, so he stayed in the house the whole day and did not come out of the house. Luhan's son came to his house looking for his father, then he told him that your father has been killed by the accused. He came to know later that the dead body of the deceased was found lying in the pot. The witness says that he gave a statement to the police and himself said that he told what he has seen. 36. With regard to Chance Witness, the Hon'ble Supreme Court of India in its judgment Rajesh Yadav v. State of U.P.6 has explained in detail that:- 26. A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. We do not wish to reiterate the aforesaid position of law which has been clearly laid down by 6 2022 SCC OnLine SC 150 24 this Court in State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660: "12. Criticism was levelled against the evidence of PWs 4 and 9 who are independent witnesses by labelling them as chance witnesses. The criticism about PWs 4 and 9 being chance witnesses is also without any foundation. They have clearly explained as to how they happened to be at the spot of occurrence and the trial court and the High Court have accepted the same. 13. Coming to the plea of the accused that PWS 4 and 9 were "chance witnesses" who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an 25 expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence." 27. The principle was reiterated by this court in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719: "21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410: 2004 Supp SCC (Cri) 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under: If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there. The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence. 22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [(1997) 4 SCC 192: 1997 SCC (Cri) 538], Harjinder Singh v. State of Punjab [(2004) 11 SCC 253 2004 Supp SCC (Cri) 28], 26 Acharaparambath Pradeepan v. State of Kerala [(2006) 13 SCC 643: (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188]). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC (Cri) 579]). 23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [(2005) 9 SCC 650: 2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned." 37. Evidence of Babulalb (PW-04) who is a chance witness, to accept his evidence, it is necessary to see his conduct. He has stated that he went to the house of the deceased at night to ask for medicine for his daughter who was having fever. This witness has stated that due to fear he did not tell anybody about the incident and slept at home, then in the evening he told Luhan's son 27 Ishwar. Luhan's son came to his house in search of his father, then he told him. 38. On observing the evidence of Ishwar (PW-01), he has nowhere stated that he had received information about the incident from Babulal, after which he went to the police station to report. Thus, Babulal has said that he is an eyewitness and that Ishwar came to know about the incident on his telling and after that Ishwar reported. This is not supported by the evidence of Ishwar himself, also if Ishwar was informed about the incident as per the statement of the said witness Babulal before reporting, then the names of the accused would have been clearly written in the report written by him and there would have been a mention of Babulal seeing the incident. Thus, the evidence of this witness is not supported even by the evidence of PW-1 Ishwar himself. Due to which, doubts are being raised on the presence of this witness as a chance witness at the scene of the incident and as an eyewitness witness who saw the incident because the conduct of this witness is not shown to be reliable. 39. Among other witnesses, Karamsaya (PW-2), who is the nephew of the deceased, told that the incident took place on 04.08.2020. His uncle Luhan was having a land dispute with the accused Sukhdev. He had come home in the month of August for 50 days earned leave. On 05.08.2020, between 9 and 10 in the morning, Ishwar told him that his father had gone missing at around 01:00 in the night. After that, they started looking for his father in the 28 village itself, but he could not be found anywhere till evening. In the night, he, Surajdev, Ishwar went to the police post Bario to register a missing report regarding Ishwar's father. After that, the police came to investigate in the night itself. But till night, there was no trace of the complainant’s father. Then in the morning, they went to the police post Bario to tell that there was no trace of the complainant Ishwar's father anywhere, they started searching for the father of the complainant Ishwar with the police. They had gone to the house of the complainant Ishwar's father, then they saw blood stains on the wall of his house and marks of dragging in the garden. Then moving forward with the police, they proceeded to search near the river bank and the police also started searching further. The villagers were also with them, when they saw the dead body in the Gagar river. Then the police got the dead body retrieved. The Ugaon resident and he identified the deceased. On seeing the dead body, it was found that he had been injured by hitting with a sharp weapon. The police seized the blood stain on the wall, the blood stained soil and plain soil in front of him. 40. Bindeshwarn (PW-9) says that he knows the accused and also knows the deceased Luhan who was his father. The incident took place on the night of 04.08.2020. His house is on the lower side and his father's house is above it. He went to his father's house at 11:00 in the morning, but his father was not at home and he saw his neighbor Pradeep who was dropping straw on the road. After a 29 while, he lifted the straw and saw blood stains and blood stains were seen on the wall of father's house and he also saw dragging marks on the back side. He searched for his father all around and could not find him, then he informed his elder brother Ishwar about this, then he and his elder brother went to the river looking at the dragging marks, then my father's body was floating in the river water. His elder brothers Ishwar and Karam Sai went to Bariyon Chowki and informed about this. After getting the information, the police of Bariyon police post came to the spot and the river and took out the body of his dead father from the river and took it to Rajpur hospital for postmortem. 41. In this case, Ishwar Lakra (PW-1) and Bindeshwar (PW-9) are both sons of the deceased and Karamasai (PW-2) is the nephew of the deceased and Abhishek Lakra (PW-3) is the grandson of the deceased. Thus, the above witnesses belong to the same family. 42. If a witness in the case is a relative, his evidence should not be disbelieved merely because he is a relative of the deceased, rather the evidence should be closely observed. On this point, the Hon'ble Supreme Court of India in its judgment in M. Nageswara Reddy v. State of A.P.7 has stated that - 16. Having gone through the deposition of the relevant witnesses eyewitnesses/injured eyewitnesses, we are of the opinion that there are no major/material contradictions in the deposition of the eyewitnesses 7 (2022) 5 SCC 791 30 and injured eyewitnesses. All are consistent insofar as Accused 1 to 3 are concerned. As observed hereinabove, PW 6 has identified Accused 1 to 3. The High Court has observed that PW 1, PW 3 & PW 5 were planted witnesses merely on the ground that they were all interested witnesses being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, in the facts and circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW 1, PW 3, PW 5 & PW 6 and even PW 7. 43. Thus, the evidence of a prosecution witness should not be disbelieved only on the ground that they are related to each other and if there is a minor contradiction between the witnesses, then the entire evidence cannot be disbelieved on that basis, rather if a witness is an eyewitness, then it is necessary to see whether the presence of the said witness at that place is natural or his presence at that place is unexpected. Similarly, minor contradictions between witnesses such as not being able to tell something at the time of police statement and telling some things in some other way etc. should not be considered fatal to the prosecution's case. 44. In this case, Abhishek (PW-3) is the grandson of the deceased and on the date of the incident, he was sleeping with the deceased, this fact has also been confirmed by Ishwar Lakra (PW-1) and this fact has also been mentioned in the written 31 application (Ex.P-01) and rural complaint (Ex.P-02) submitted by Ishwar. From which, it is clear that on the date of the incident, Abhishek Lakra (PW-3) slept with the deceased. Abhishek Lakra (PW-3) has stated that he saw his grandfather being beaten up when he came out in the courtyard and denied that there are houses around his grandfather's house and a courtyard in the middle. He himself stated that there is a courtyard outside his grandfather's house. Thus, the said place is not an unexpected place where the presence of the said witness can be disbelieved. Apart from this, it is natural to get up at night and go out to urinate because there are no attached bathrooms in the village. Thus, the presence of Abhishek (PW-3) at the place of incident is not unexpected or disbelievable and his evidence has also not been rebutted, due to which his evidence cannot be disbelieved. 45. Sunil Tiwari (PW-10), who is the investigating officer, has stated that he had recorded memorandum statement (Ex.P. 15 and 16) as per the statement of accused Sukhdev and Mangalsai and when accused Sukhdev took out and presented an iron tabbal (battle axe) with a wooden bent as mentioned in the memorandum, he seized it in front of witnesses. He prepared seizure memo (Ex.P-17). He seized a dagger-like sword on the basis of memorandum presented by accused Mangalsai and prepared seizure memo (Ex.P-18). 46. Satnam Pawale (PW-5) who is a witness to the memorandum and seizure has stated that in his presence, the police officers had 32 interrogated accused Sukhdev and Mangal in which accused Sukhdev had stated that on the night of the incident they had eaten and drank separately and due to land dispute with the deceased, they had a fight and then in anger, he had hit him on the head with a dagger. The witness stated that memorandum statement of accused Sukhdev was recorded and stated that his signature is on A to A parts of Ex.P-15. The witness stated that dagger and tabbal were seized from accused Sukhdev in his presence and the dagger was seized from the house of Reena Devi. The witness says that memorandum statement was recorded after interrogating accused Mangal in his presence and when accused Mangal presented them, the policemen seized a Gupti and a Tabbal in his presence. 47. Jokhu Ram (PW-6) stated that in his presence, Mangal was interrogated by the police but accused Sukhdev was not interrogated. Accused Mangal had told the police that he had hit the deceased Luhan on the head with a dagger and thereafter a dagger and a tabbal were seized from the house of Reena Devi. Memorandum statement (Ex.P-15 and 16) were written. 48. The witnesses have supported the seizure of the Gupti and Tabbal (battle axe) by questioning the accused and have also stated that the Gupti was seized from the house of Reena Devi. Thus, the said witnesses are aware of the fact that the seizure was made from the house of Reena Devi, which clearly shows that they have knowledge about the seizure memo and it would certainly be 33 possible to have this knowledge only on the basis of their reading the seizure memo and being present at the scene of the incident at the time of seizure. circumstances, the evidence of the aforesaid witnesses supports the memorandum and the seizure proceedings. 49. As per the above, the investigating officer has stated that seizure proceedings were carried out by taking memorandum statements from the accused Sukhdev and Mangal, which is supported by the evidence of the witnesses of the said memorandum and seizure. This proves that seizure was carried out on the basis of the memorandum taken from the accused, when presented by the accused. 50. Sunil Tiwari (PW-10) Sub Inspector, had sent the seized sword and tabbal to C.H.C. Rajpur and sent a memorandum of Ex.P-20 and 21 for providing the examination report. Regarding which Dr. Chandraprabha Singh (PW-7) has stated that on 08.08.2020 at 05:50 pm, the seized Gupti (knife) was brought before her by Police Constable No. 392 M.P. Pandey along with the written complaint for providing the report of the query of the Gupti, then on examining the said weapon, she found that:- The length of the covered Gupti is 33.5 inches, the roundness of the end of the handle is 5.5 inches, the length of the Gupti without cover is 29 inches. The 34 length of the iron of the sharp Gupti is 19.5 inches and its width is 1.5 inches. It is possible that the death was caused by the injury caused by the said knife to the body of the deceased such as by hitting him on the head, face and chest. There was no blood present in the seized knife. The query report of the said knife given by him is Exhibit P-20. 51. On the same date, the same constable brought the seized Tabbal (battle axe) before him along with the written complaint for presenting the report of the query of the seized Tabbal. On examining the said Tabbal, he found as follows:- That the wooden part of the Tabbal is 20 inches in length and the roundness of the handle end is 03 inches. The roundness of the metal end is 3.5 inches. The length of the metal end of the Tabbal is 5.5 inches. The measurement of the sharp part is 08 inches. It is possible that the deceased died due to the injury caused by hitting the head and every part of the face with the said seized Tabbal. There was no blood present in the seized Tabbal. The query report of the said Tabbal given by him is Exhibit P-21. 35 52. In this case, chemical test of the said seized property has not been conducted and Sunil Tiwari (PW-10), Sub-Inspector, has prepared a draft for chemical test through the Superintendent of Police, Balrampur and sent it to the regional It has been sent to Science Laboratory, Ambikapur, whose exhibit receipt is Ex.P-28, that is the soil testing report of the incident site. 53. In this case, the memorandum and seizure proceedings are certified and on that basis, the seizure of the weapon used in the incident is also certified. Hence, there is no basis to disbelieve the entire case merely because of the absence of chemical test. 54. In the case, it is stated that the deceased was murdered by the accused due to land dispute and in his written application (Ex.P- 1), Ishwar (PW-1) has also raised doubts on the accused regarding the land dispute. In this way, it is shown that the accused had a motive to murder the deceased. 55. Among the eyewitnesses in the case, the evidence of Abhishek Lakra (PW-3) is reliable and sufficient to convict. This proves that the accused had formed a common intention to kill the deceased Luhan due to land dispute and in furtherance of their common intention, it is clearly proved that the murder was committed by hitting with an iron rod and a dagger-like sword on the night of the incident and the dead body was found floating in the river. This clearly shows that after killing the deceased, the dead body was thrown into the river to destroy the evidence. 36 56. On the basis of testimony of eyewitness Abhishek Lakra (PW-3) and further on the basis of memorandum statement (Ex.P-15 and Ex.P-16), iron rod and a dagger-like sword has been recovered vide Ex.P-17 and Ex.P-18, as such, the trial Court has rightly convicted the appellants on the basis of the aforesaid incriminating evidence based on testimony of eyewitness Abhishek Lakra (PW-3), memorandum statement and recovery of iron rod and a dagger-like sword, as such, the trial Court is absolutely justified in convicting appellants Sukhdev Kerketta, Pradip Kerketta, Umesh Kerketta and Mangalsay Kerkewtta for offence under Sections 302/34 and 201 of the IPC. We do not find any merit in this appeal. 57. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellants. The conviction and sentence as awarded by the trial court to the appellants is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed. 58. It is stated at the Bar that the appellants are in jail. They shall serve out the sentence as ordered by the trial Court. 59. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellants are undergoing the jail term, to serve the same on the Appellants informing them that they are at liberty to assail the present 37 judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 60. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Manpreet