Orissa High Court: In an appeal under Section 374 of the Code of Criminal Procedure, 1973 against Trial Court’s decision for founding the convict guilty of killing his mother and sentenced to imprisonment for life, the Division Bench of S.K. Sahoo and Chittaranjan Dash, JJ., upheld the Trial Court’s decision relying upon the minor child’s witness which clear, cogent, reliable and trustworthy, and moreover corroborated by the medical evidence.
An FIR was lodged in 2008 alleging that the convict committed the murder of his mother (‘deceased’) by severing her head and threw the body in the backyard of his house. The convict faced trial for commission of offence punishable under Section 302 of the Penal Code, 1860 (‘IPC’) for killing his mother (‘deceased’). The Trial Court on finding the convict guilty sentenced him to undergo imprisonment for life.
Whether the solitary testimony of the minor child witness (grandson of deceased) regarding culpability of the convict is reliable?
The Court noted that the minor child, aged 12 years at the time of commission of offence was the sole eye-witness. The Court reiterated that when the solitary witness happens to be a child, the Court has to be even more cautious so as to ensure that immature answers, influenced by the tender age, given by the child do not affect his otherwise impeccable evidence. The Court referred to Pramila v. State of U.P. (2021) 12 SCC 550, while appreciating the sole testimony of an eleven-year-old child, observed that “criminal jurisprudence does not hold that the evidence of a child witness is unreliable and can be discarded. A child who is aged about 11 to 12 years certainly has reasonably developed mental faculty to see, absorb and appreciate. In a given case the evidence of a child witness alone can also form the basis for conviction. The mere absence of any corroborative evidence in addition to that of the child witness by itself cannot alone discredit a child witness. The Court has, to satisfy itself that all possibilities of tutoring or otherwise are ruled out and what was deposed was nothing but the truth.”
The Court noted that the Trial Court posed questions to test his competency, known as the ‘voir dire’ test and said that the minor child witness understood the questions and is a competent witness to answer and accordingly, the statement was recorded. The minor child stated that his father-convict had strangulated the neck of the deceased for which the deceased struggled for life and then she became calm. He further stated that when he cried, the convict threatened him not to shout and then asked him to accompany and took the dead body of the deceased to a place at a distance of 100 meters and there he separated the head of the deceased from the body by means of a sickle and brought the beheaded head in a bag and returned to the house. Further, the Court noted that the Trial Court had recorded that the minor child remained confident during his statement and the contradictions in his statement did not affect its credibility. It was also noted that the minor child had stated that the convict mostly expressed disgust towards his mother-deceased. The Court said that Section 280 of the CrPC empowers the Presiding Judge while recording the evidence of witnesses, to also record such remarks as he thinks material, respecting the demeanour of such witness whilst under examination. The Court stated that the demeanour of the witness is the appearance of credibility that the witness has during testimony and examination at trial or hearing. The look or manners of a witness while in the witness box, his hesitation and doubts or confidence and calmness etc. are the facts which only the trial Judge is in a position to, and is expected to observe. Though the Court is quite free to make a note of demeanour of the witness, it is desirable to avoid remarks of an apparently exclusive character.
Therefore, considering all the above narrations, the Court upheld the Trial Court’s reliance on minor child’s witness.
Further, on perusal of the medical evidence, the Court held that version of the child witness was not only reliable and trustworthy but the same got sufficient corroboration from the medical evidence, fortifying the prosecution case.
Whether the recovery evidence adduced by the convict corroborates the prosecution case?
The Court noted that the convict led police to the spot in his house where he had put the severed head of the deceased. The I.O. also stated about the seizure of the weapon of offence and the beheaded body of the deceased. The Court noted that the convict in his statement recorded under Section 313 of the CrPC, stated that he was under intoxication and the deceased asked him to commit her murder accordingly, he took ‘ganja’ and killed his mother by way of strangulation and then asked his son to accompany him and went to the land where he beheaded the deceased and came with the head to his house.
The Court reiterated that a person cannot seek exemption from liability for commission of murder on the ground of ‘voluntary intoxication’ and IPC does not provide for any provision which can potentially protect an accused from liability for commission of any crime, much less a heinous crime like murder, merely because he chose to intoxicate himself before executing his culpable intention. Referring to Paul v. State of Kerala (2020) 3 SCC 115, wherein, while adjudicating criminal liability of a self-intoxicated persons, the Court said that Section 86 begins by referring to an act which is not an offence unless done with a particular knowledge or intent. Thereafter, the lawgiver refers to a person committing the act in a state of intoxication. What about an act which becomes an offence if it is done with a specific intention by a person who is under the state of intoxication? Section 86 does not attribute intention as such to an intoxicated man committing an act which amounts to an offence when the act is done by a person harbouring a particular intention, the Court the son did not think twice before killing his creator, i.e. the mother. The knowledge of the convict for commission of the crime can be well inferred, notwithstanding the fact that he was intoxicated.
Therefore, for lack of merits and finding the child’s witness to be clear, cogent, reliable and trustworthy, the Court upheld the Trial Court’s decision.
[Rankanidhi Behera v. State of Odisha, 2024 SCC OnLine Ori 1934, decided on: 24-07-2024]
Advocates who appeared in this case :
For the appellant: Amicus Curiae Sobhan Panigrahi
For the respondent: Additional Standing Counsel Priyabrata Tripathy
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