Criminal Appeal (D.B.) No. 186 of 1998 Against the judgment and order of conviction and sentence dated 18.06.1998 passed by Sri D. P. Singh, learned 1st Additional Judicial Commissioner, Ranchi in S. T. No. 15 of 1995. --- 1. Mahabir Oraon son of late Ramu Oraon 2. Bhim Oraon son of Jeetan Oraon Both of village Hethdahu, PS Hatia, District Ranchi … … Appellants Versus The State of Bihar (now Jharkhand) … … Respondent --- For the Appellants : Mrs. Leena Shakti, Amicus Curiae For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE ARUN KUMAR RAI --- C.A.V. on – 09.01.2025 Pronounced on – 14.01.2025 Per, R. Mukhopadhyay, J. Heard Mrs. Leena Shakti, learned Amicus Curiae for the appellants and Mrs. Abhay Kumar Tiwari, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 18.06.1998 passed by Sri D. P. Singh, learned 1st Additional Judicial Commissioner, Ranchi in S. T. No. 15 of 1995 whereby and whereunder the appellants have been convicted for the offence punishable under Sections 302/34 of I.P.C. and have been sentenced to undergo rigorous imprisonment for life. 3. The prosecution case arises out of the fard beyan of Jaga Oraon recorded on 09.01.1994 in which it has been stated that on 08.01.1994 at around 8:00 P.M., the informant was warming himself in the fire in front of his main door of his house and his grand-mother was searching for a container to keep the paddy. The door was open and Mahabir Oraon (appellant no. 1) entered through the door and by taking 2 out a pointed knife started stabbing the grand-mother of the informant. In the meantime, Bhim Oraon came with a Tangi and started assaulting his grand-mother. Both the accused persons dragged the grand-mother of the informant to the door and while singing starting committing assault upon the grand-mother of the informant. The informant had raised an alarm, but nobody had come for assistance. After issuing threat to the informant, the accused had fled away. Based on the aforesaid allegations, Hatia P. S. Case No. 3 of 1994 was instituted under Sections 302/34 of I.P.C. On completion of investigation, charge-sheet was submitted and after cognizance was taken the case was committed to the court of Sessions where it was registered as S. T. No. 15 of 1995. Charge was framed against the accused persons under Sections 302/34 of I.P.C. which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 11 witnesses in support of its case. 5. P.W. 1 – Aditya Narayan Singh has proved his signature on the inquest report which has been marked as Exhibit 1. 6. P.W. 2 – Jaga Tirkey @ Mantu has stated that around 8:00 P.M., he was warming himself beside the fire and his grand-mother was inside the house. At that point of time, Mahabir came and asked his grand-mother as to what dish she was cooking and thereafter started stabbing her with his knife. Bhim thereafter came and started assaulting his grand-mother with a Tangi. After assaulting her, they dragged her out of the house. Though, he raised an alarm, but the villagers did not arrive. The accused persons after committing the assault fled away. When his mother came, he has disclosed the incident to her and on his statement, the FIR was registered by the police. In cross-examination, he has deposed that there were several houses adjacent to his house. At the time of the incident, it was dark and there was Dhibri and oven burning inside the house. In the night, when the accused persons came, they threatened him at which he fled away 3 from the house. When his mother had come, the Choukidar had also come. He thereafter says that the Chaukidar and Mukhiya were approached in the morning. In the morning, the villagers had come to his house. He has deposed that he has been tutored by his lawyer as to in which way he has to give his evidence. 7. P.W. 3 – Mado @ Madi Oraoin has stated that when she returned from Saturday market, she found the dead body of his mother at the courtyard. Her son Jago had disclosed that Mahabir and Bhim had assaulted his grand-mother with Knife and Tangi and had dragged her to the courtyard. In cross-examination, she has deposed that no one from the neighbourhood had come to her house at night. In the night, she and her family members had fled away from their house, while the dead body was lying in the house. She had gone to the police station with the Choukidar and had explained the incident. She has not witnessed the assault committed by the accused persons. 8. P.W. 4 – Gola Oraon had gone to the house of Madi on hearing a commotion and he had seen the dead body of mother of Madi lying beside a pool of blood. In cross-examination, he has deposed that his house is at a distance of 100 yards from the house of Madi. He had come out of his house at night, but had not seen the assault. 9. P.W. 5 – Birsa Oraon has stated that on Saturday, he had gone outside and when he came on Sunday, he had seen the dead body of his mother-in-law lying in the courtyard. He has been told by his wife and son that Mahabir and Bhim had committed assault with a Tangi and Knife and also dragged the dead body outside the house. In cross-examination, he has deposed that when he returned home 20 -25 persons were present including some persons from the nearby vicinity. 10. P.W. 6 – Anuwa Ekka has stated that she had given her thumb impression on the statement of Mantu. She had also given her thumb impression on the inquest report. 4 In cross-examination, she has deposed that on the date of incident, she was in the market. She had not witnessed the occurrence. 11. P.W. 7 – Mango Pahan has identified his signature on the seizure list of blood-stained earth which has been marked as Exhibit 1. 12. P.W. 8 – Sukra Oraon has stated that he had gone to Upardahu for watching television and when he returned home at 11:00 P.M., he had seen the dead body of Pabi in the courtyard. In his cross-examination, he has deposed that his house has a common courtyard with two other houses. It was a dark night. In the night of the incident, he and his family members did not sleep in the house, but slept in the house of Bindeshwar Oraon. 13. P.W. 9 – Birang Oraoin has stated that he had come to know from Birsa and Mantu that Bhim and Mahabir had committed the murder of Pabi. In cross-examination, he has deposed that only Mantu had disclosed the name of the assailants. 14. P.W. 10 – Kalpal Oraon was posted at Hatia Police Station as Junior Sub-inspector of Police and on 09.01.1994, he received an information of a murder at which a station diary entry was made. Thereafter in order to verify the information he and the other police personnel had gone to village Hethdahu where the fard beyan of Jago Oraon @ Mantu was recorded. He has proved the fard beyan which has been marked as Exhibit 2. He has identified the signature of the Officer Incharge, Hatia Police Station over the fard beyan which has been marked as Exhibit 2/1. He had been entrusted with the investigation of the case. He has proved the FIR which has been marked as Exhibit 3. He had inspected the place of occurrence which is the house of the informant and deceased situated at village Hethdahu. He had proved the inquest report which has been marked as Exhibit 4. The seizure list has been proved and marked as Exhibit 5. He had recorded the re-statement of the informant, obtained the post mortem report, recorded the statement of other witnesses and on his transfer had handed over the investigation to the Officer Incharge. 5 The accused had refused to cross-examine this witness. 15. P.W. 11 – Dr. Ram Sewak Sahu was posted as a Medical Officer in the Department of Forensic Medicine, RMCH, Ranchi and on 10.01.1994 he had conducted autopsy on the dead body of Pabi Devi and had found the following: “1. Abrasions:- i. 1 x ½ cm on right arm upper part. ii. 1 x ½ cm on right lateral elbow. iii. 1 x ½ cm on left elbow back. iv. 1 x ½ cm, 1 / ½ cm on right chest back. v. 4 x 2 cm on right scapula. 2. Incised wounds:- i. 3 x ½ cm x bone deep on right scapular area cuts the right scapula bone. ii. 3 x 1 cm x soft tissue deep on right chest front lower. iii. 1 x ½ cm x soft tissue on right chest front. iv. 6 x 2 cm x soft tissues on right thigh lower part. 3. Lacerated wound:- i. 5 x 1 cm x scalp deep, 4 x 1 cm x scalp deep, 2 x 1 cm x scalp deep over right side of frontal region. ii. 6 x 2 cm x bone deep on left parieto occipital region of head, it breaks the underlying bone into pieces and a portion of brain matter is protruding out of brain. iii. 8 x 2 cm x bone deep or right parieto occipital area of head. There is depressed fracture of underlying bone into pieces. A portion of the brain matter out of this wound. 4. Internal:- There is fracture of sternum at 4th rib level, fracture of right 2nd is 8th rib and left 2nd to 9th rib interiorly with laceration of both lungs. There is contusion of scalp and front of chest.” The cause of death was opined to be due to above injuries. He has proved the post mortem report which has been marked as Exhibit 6. 16. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Pabi Devi. 17. It has been submitted by Mrs. Leena Shakti, learned Amicus Curiae that the edifice of the prosecution case has been based upon the evidence of P.W. 2 but on proper analysis of such evidence, it would transpire that there is a fundamental flaw while recording the evidence 6 as no certification has been given by the learned trial court regarding his competency to depose as P.W. 2 is a child and such certificate is mandatory. It has been submitted that even otherwise it is apparent that the evidence of P.W. 2 is a tutored version. 18. Mr. Abhay Kumar Tiwari, learned A.P.P. for the State has submitted that a perusal of the evidence of P.W. 2 would reveal that the witness was fully competent to depose as sensible answers have been given to the query put forward by the prosecution as well as by the defence. P.W. 2 has clearly stated about the specific role of the appellants in inflicting the multiple injuries on the person of the deceased. 19. We have heard the learned counsel for the respective sides and have also perused the trial court records. 20. The entire case of the prosecution hinges upon the evidence of a 12 years old child in the form of P.W. 2, though the court has assessed his age to be about 10-11 years. Considering the age of the P.W. 2, the trial court should have made an assessment by putting some relevant questions to P.W. 2 to ensure his competency to depose. The learned trial court for whatever reasons seems to have overlooked such requirement. The duty of the trial court while recording the evidence of a child witness has been emphasized by the Hon’ble Supreme Court in the case of “Pradeep versus The State of Haryana” reported in 2023 LiveLaw (SC) 501, wherein it has been held as follows: “8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the 7 truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. 10. In the facts of the case, the preliminary examination of the minor is very sketchy. Only three questions were put to the minor on the basis of which the learned Sessions Judge came to the conclusion that the witness was capable of giving answers to each and every question. Therefore, the oath was administered to him. Following are the questions put to him:- “Q. In which school you are studying? Ans. I am studying in Govt. Primary School, Barwashni. Q. What is occupation of your father? Ans. My father is a Pujari in a Mandir named Hanuman, at Gohanba. Q. Should one speak truth or false? Ans. Truth.” 21. Though, no preliminary question was put by the learned trial court to assess the competency of P.W. 2 to depose, but that by itself would not render such evidence inconsequential as the overall assessment of the evidence of P.W. 2 leads us to conclude that he had understood the questions put to him and had given rational answers. These observations made by us would not act as a stamp of approval to his evidence, but is only restricted to his competency. On dissection of the evidence of P.W. 2, we find that there are several houses in the vicinity of the place of occurrence, but none seems to have seen the appellants committing the assault or had assembled at the place of occurrence when the cry of alarm was raised. The other notable feature of P.W. 2 is his admission that he has stated whatever has been told to him by the lawyer. This giveaway in his cross-examination categorises the status of P.W. 2 as a tutored witness. This would also gain strength from the fact that though P.W. 2 has described every minute details about the manner of assault despite being a dark night with only presence of Dhibri and Oven, but same has been contradicted in his cross-examination in which he has deposed that as soon as the assailants entered into the house, they had warned him to go away and out of fear, he had fled away. No occasion would therefore arise for P.W. 2 to give a 8 vivid description of the assault. Discarding the evidence of P.W. 2 would set at naught the case of prosecution as there is no other evidence which would conveniently point to the guilt of appellant. 22. We therefore on the basis of the discussions made hereinabove set aside the judgment and order of conviction and sentence dated 18.06.1998 passed by Sri D. P. Singh, 1st Additional Judicial Commissioner, Ranchi in S. T. No. 15 of 1995 23. This appeal is allowed. 24. Since both the appellants are on bail, they are discharged from the liabilities of their bail bonds. (Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Jharkhand High Court at Ranchi The 14th day of January, 2025 R.Shekhar/NAFR/Cp.3