It is further urged that these two witnesses are child witnesses and hence we should not place much reliance on their testimony. There is no bar legally to accept even the uncorroborated testimony of a child witness and only prudence requires that the court should not act on the uncorroborated evidence of a child.
In the present case these witnesses, as will be clear hereafter, are fully corroborated by other eyewitnesses. The other objection that is urged before us is that the learned Sessions Judge has not recorded, for the benefit of the appellate court, the questions and answers in the preliminary examination he held. It is true that the learned Sessions Judge has not recorded the questions and answers as they are, though he has recorded the fact of his questioning the witnesses and his satisfaction regarding the competency of the witnesses.
We would at this stage observe that it is very desirable that a trial judge should preserve on record, apart from the evidence of the child witness in the case, the questions he put to the witness in the preliminary examination and the answers which would help the appellate court to come to the conclusion whether or not the trial judge's decision in regard to the competency of the child witness was right or wrong.
In this case there is a statement of the learned Sessions Judge that he had questioned the witnesses-and was satisfied that they were able to realise that they should speak the truth and were also in a position to give pertinent answers. In view of that we do not think that there is any infirmity attached to the evidence of these two witnesses.
Kerala High Court
Varkey Joseph vs State Of Kerala on 7 March, 1960
Equivalent citations: AIR 1960 Ker 301
1. The appellant in this case, one Varkey Joseph, a school boy of 16 years of age, has been convicted by the learned Sessions Judge of, Alleppey for an offence under Section 302 I. P, C. and has been sentenced to rigorous imprisonment for life. The prosecution case may be briefly summarised as follows :
2. The accused and deceased Kuttappan were students in the VI standard of the Government Higher Secondary School at Shertallai. Before the Chrismas holidays in 1958 there was a quarrel between them in the course of their games and they had ill-feeling on account of that incident. On 3-1-1959 at about 7 p.m. the accused and the deceased met on the road near the Shertallai Bhagavathi temple and they came to blows, when the on-lookers including Pws. 9 and 10 separated them.
The accused was taken south along the road and sent west and the deceased was sent north along the road. Sometime after, at about 8 p.m., the deceased came to the open space in front of the Althara in front of the Bhagavathi temple and sat down there a few feet from the Althara. Then the accused approached him from behind and with a granite stone, M.O. 1, hit him on. his right temple near the ear.
The deceased fell forward on his face. When Pws. 3, 11 and some others crime near him, the deceased wanted water and. somebody gave him some soda, on drinking which he vomitted. Thereafter Pws. 3, 11 and the others removed him to a nearby shop. His parents were informed and later he was removed to the Police Station about 1 1/2 furlongs from the place of occurrence. There he gave Ext. P9, the first information report, at 9-45 p.m. the same night.
He was then sent to the Government Hospital at Shertallai. The nurse on night duty felt that the injury was minor and informed the doctor accordingly. Consequently the doctor examined him only on the next day at 8 a.m. and after observation for some time he suspected intra-cranial haemorrhage and hence the deceased was sent to the District Hospital, Alleppey, for better treatment. While undergoing treatment there Kuttappan died at 5-30 a.m. on 5-1-1959.
The fact of his death was intimated to the police. In pursuance of that information, the Circle Inspector, Pw. 19, took up investigation. Pw. 20 conducted the autopsy and prepared the postmortem certificate, a duplicate of which is Ext. P-13. The accused was arrested at 6-30 p.m. on 5-1-1959 at his residence. Subsequently the charge sheet was filed and after committal by the Sub-Divisional Magistrate's Court. Alleppey the case came up before the learned Sessions Judge, Alleppey.
3. The accused gave a statement, Ext. P-14, before the committal court, substantially admitting the prosecution case. However, his case in the statement was that he did not hit the deceased directly with a stone but only threw a stone at him. According to him the deceased and three other children beat him, when Pw. 9 intervened and parted them. He was followed by the deceased and the other boys and was beaten again.
Then he threw a stone at the deceased and he definitely denied that he hit the deceased on his forehead. In his statement under Section 342 Criminal Procedure Code before the Sessions Court he had a different version of the occurrence. He would say that he and Kuttappan grappled each other and in the scuffle Kuttappan fell on the stone of the Althara and thereby might have sustained the injury. Towards the close of this statement he said that Ext. P-14 statement was given in the committal court by him as directed by the police.
4. The prosecution examined 4 eye-witnesses to the occurrence, Pws. 1, 2, 3 and 11. Pws. 1 and 2 are brothers. They were going beside the place of occurrence to purchase straw at 7 p.m. on the date of occurrence, when they saw the deceased and the accused being questioned by some persons on the road for having quarrelled. They went on their way and in a short time came back with the straw they purchased..
When they came near the southern gate of the temple, they stopped there to see the cocoanut throwing and the fire works. At that time, when they were remaining there, Kuttappan was seated about 15 ft. to the east of the Althara, facing east. The accused approached him from behind and hit him on the right temple with a granite stone which was recognised by them as M. O. 1.
The accused then ran away towards west drop-ping the stone nearby, Kuttappan fell down on his face and then asked for water. Someone gave him soda and he was then removed to the verandah of a nearby shop. These two witnesses substantially corroborate each other in material particulars and no serious discrepancy has been brought to our notice to make their testimony unbelievable. Some attempts have been made by the appellant's learned counsel to convince us that these two witnesses did not actually see the hitting, but they turned in the direction of the deceased only on hearing the sound of the hitting.
But both the witnesses are definite that they saw the hitting. Even if they did not actually see the hitting, immediately on hearing the sound of the hitting they looked in that direction and saw the accused with the stone in hand so close to the deceased. That is as good as seeing the hitting itself. So there is no force in this contention. Further, it is urged before us that these two witnesses are neighbours of the deceased and hence interested in the deceased.
Excepting the fact that the deceased and these two witnesses belonged to the same place nothing further has been brought out in the evidence to discredit them. It is further urged that these two witnesses are child witnesses and hence we should not place much reliance on their testimony. There is no bar legally to accept even the uncorroborated testimony of a child witness and only prudence requires that the court should not act on the uncorroborated evidence of a child.
In the present case these witnesses, as will be clear hereafter, are fully corroborated by other eyewitnesses. The other objection that is urged before us is that the learned Sessions Judge has not recorded, for the benefit of the appellate court, the questions and answers in the preliminary examination he held. It is true that the learned Sessions Judge has not recorded the questions and answers as they are, though he has recorded the fact of his questioning the witnesses and his satisfaction regarding the competency of the witnesses.
We would at this stage observe that it is very desirable that a trial judge should preserve on record, apart from the evidence of the child witness in the case, the questions he put to the witness in the preliminary examination and the answers which would help the appellate court to come to the conclusion whether or not the trial judge's decision in regard to the competency of the child witness was right or wrong.
In this case there is a statement of the learned Sessions Judge that he had questioned the witnesses-and was satisfied that they were able to realise that they should speak the truth and were also in a position to give pertinent answers. In view of that we do not think that there is any infirmity attached to the evidence of these two witnesses.
5. The other two eye-witnesses are Pws. 3 and 11. Pw. 3 is an attestor to the scene mahazar Ext. P-1. It was this witness who identified M.O. 1, when the police recovered it. Pw. 3 was waiting in front of the gate witnessing the coconut throwing and fire works to the north-west of the place where Kuttappan was sitting. It was then, according to him, that the accused came from behind and hit Kuttappan on the right temple.
The witness deposes further that Kuttappan fell forward when he and some others approached him and removed him to the nearby shop. He also Says that someone in the group gave Kuttappan a bottle of soda on drinking which Kuttappan vomttted. This. witness had also been cross-examined at length and some slight discrepancies have been brought out in the cross-examination. But we do not think that these discrepancies are material and sufficient to affect the trustworthiness of the witness.
6. The next eye-witness is Pw. 11. He was also present at the spot at the time of the occurrence and he helped to remove the deceased to the nearby shop. He also identified M.O. 1. After two boys were sent to the house of the deceased to fetch his relations, Pw. 11 left the place, The only criticism that is levelled against this witness is that this witness used to work with the parents of the deceased. That, we feel, is not sufficient to discredit his evidence.
A discrepancy that has been pointed out in his evidence is that in his statement under Section 164 Criminal Procedure Code he had stated that Kuttappan was standing on the eastern side of the Althara, whereas, in his evidence before the Sessions Court he stated that Kuttappan was sitting. But even this discrepancy, we feel, is not sufficient to disbelieve him. We would also state that the evidence of Pws. 3 and 11 fully corroborate the testimony of Pws. 1 and 2.
7. It is next urged before us that copies of the statements given by Pws. 3 and 11 and recorded by Pw. 17 the Head Constable, on 4-1-1959 were not furnished to the accused. The answer to this by the prosecution is that Pw. 19 the Circle Inspector, took up the investigation of the case and on the 5th of January he recorded statements from Pws. 3 and 11. Admittedly copies of these statements have been furnished to the accused.
There is no suggestion that the statements given by Pws. 3 and 11 to Pw. 17 are different from the statements given by them to Pw. 19. We are not also satisfied that this has caused any prejudice to the accused in any manner. Hence we would reject this contention.
8. The motive that is alleged by the prosecution for the offence is the quarrel between the accused and the deceased Kuttappan while they were in the school. There is no direct evidence regarding this. Pw. 4, the Head Mistress of the school, deposes that the fact of the quarrel was brought to her notice and she warned them not to quarrel again. Nevertheless tin's part of the motive was accepted by the accused in his statement under Section 342 Criminal Procedure Code.
The other quarrel on the date of occurrence sometime prior to it is spoken to by Pws, 5, 9 and 10. The eye-witness to this quarrel is Pw. 5, a school-mate of the accused and the deceased. Pws. 3 and 10 came to the scene only after the quarrel and they swear that they advised the accused and the deceased not to quarrel again and, sent them in different directions. This portion of the case is believable. But the first information statement, Ext. P-9, given by the deceased, does not make any mention of this quarrel.
The omission of this incident in Ext. P-9 certainly goes against the prosecution case. But in view of the evidence of Pws. 5, 9 and 10, we are inclined to hold that the prosecution has proved this part of the motive also. Hence we come to the conclusion that the prosecution has proved beyond all reasonable doubt that it was the accused who caused the injury to deceased Kuttappan, which resulted in his death on 5-1-1959.
9. The next question we have to consider is as to what is the offence committed by the accused. 5 Pw. 13 is the Medical Officer who examined the deceased on the morning of 4th January, 1959 and issued Ext. P-5, the wound certificate. The wound certificate mentions only a contusion 2" in diameter on the right temple. But the postmortem certificate issued by Pw. 20 viz., Ext. P-13, discloses the following :
"Contusion on right temple 3" by 3" extending to the front of the ear of the same side. On dissection there is haematoma under the skin. Muscles contused. Depressed fracture of the lower part of the squamous portion of the right temporal bone roughly quadrilateral in shape is 1 1/2" by 1". Extra dural haemorrhage with clot 6" by 3" pressing on the right side of the brain and depressing it".
Ext. P-13 clearly shows that the internal injury was serious and according to Pw. 20 death was due to coma due to the above injury and he was of opinion that the injury was sufficient, in the ordinary course of nature, to cause death. The learned Sessions Judge held that the offence was culpable homicide amounting to murder, regard being had to the nature of the injury, the vital portion of the body attacked and the weapon used. The learned counsel for the accused urges before us that the offence is only one under Section 323 I. P. C.
We are not inclined to accept this contention. At the same time we are neither inclined to agree with the learned Sessions Judge that the offence would fall under Section 302, I. P. C. It is going too far to hold, that, under the circumstances of the present case, the accused knew that the blow was so imminently dangerous that it must in all probability cause death or that the injury which he intended to cause was sufficient in the ordinary course of nature to cause death.
According to us the only intention that the accused could have had would have been to give a good blow to the deceased as he entertained a grudge against him because of his former two quarrels with him. Hence we are satisfied that the offence could not be murder. The learned counsel for the accused invited our attention to two decisions of the Lahore High Court. The first is Ghulam Muha-ud-Din v. Emperor, AIR 1922 Lah 26 (2).
In that case the accused and the deceased were boys and merely as a result of a boyish quarrel a short time before the occurrence the accused stabbed the deceased with a pen knife 4" in length and death was caused. Their Lordships held that the offence fell under Section 326 I. C. P. The learned Judges observe on page 28 :
"It has been sufficiently proved that the weapon used in inflicting the injury was merely a pen knife of not more than four inches in length and could not under ordinary circumstances be deemed to be a dangerous weapon".
With all respect to the learned Judges we are unable to subscribe to the view that a pen knife of not more than four inches in length cannot be deemed to be a dangerous weapon under ordinary circumstances. The other case is Ghulam Jilani v. Emperor, AIR 1925 Lah 559. In this case the accused and the deceased were young men of about 18 years. The deceased and a friend of his gave a beating to the accused. The next day the accused unexpectedly met the deceased and the accuseds struck a voilent blow on the back of the head of the deceased with the hockey stick he was carrying.
The deceased walked a few paces and sat down. In half an hour he became unconscious and finally died. The learned Judges held that the offence fell under Section 325 I. P. C. In this case also, with all respect, we are not inclined to agree with the view of their Lordships that the offence would fall under Section 325 I. P. C. According to us a hockey stick is an "instrument which used as weapon of offence, is likely to cause death" and hence the offence would fall under Section 326 I. P. C. To the extent indicated above we are not in agreement with the two decisions cited before us.
In the present case it is clear that the offence committed is grievous hurt falling under the 7th category of Section 320 I. P. C. The only further question is whether the section applicable is 325 or 326" I. P. C. M. O. 1 is a granite stone 3'' x 3" x 1 1/2" with rough edges and we have seen the material object. We are satisfied that it will come under "instrument which, used as a weapon of offence, is likely to cause death". Hence it is clear that the offence falls under Section 326 I. P. C.
10. The other question that remains to be considered in this case is, whether the accused is entitled to the benefit of S, 399, Criminal Procedure Code. The learned Sessions Judge has taken evidence regarding the age of the accused and has recorded a finding that he was then 16 years of age. Of course the accused gave his age as 14 at the time of the trial. Ext. P-16 is an application for admission of the accused into the school and Ext. P-17 is the admission register.
These documents have been properly proved. Ext. P-16 seems to have been signed and presented by the father of the accused. The date of birth of the accused shown in Ext. P-16 is 4-2-1943. On the basis of this it is clear that the accused is 16 years of age and hence he is not entitled to the benefit under Section 399, Criminal Procedure Code.
11. Corning to the question of sentence, we are of the opinion that a sentence of rigorous imprisonment for five years will meet the ends of justice in the present case. It is clear that the accused could not have had the intention to cause grievous hurt and the incident could have been only the result of a boyish quarrel, Hence in the circumstances of the present case a sentence as indicated above alone is called for.
12. In the result we alter the conviction of the accused from one under Section 302 I. P. C. to one under Section 326 I. P, C. and sentence him to rigorous imprisonment for five years. With the above modifications in the conviction and sentence the appeal is dismissed.
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