Suman Shyam, J.
1. Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. T. Deuri, learned counsel appearing for the appellant. Also heard Mr. M. Phukan, learned Public Prosecutor, Assam representing the State. None has appeared for the informant/respondent No.2.
2. By the judgment dated 19.09.2019 passed by the learned Additional Sessions Judge No.1, Kamrup(M), Guwahati in Sessions Case No.85(K)/2015 the sole appellant was convicted for committing the murder of his brother Sirajul Ali Ahmed by firing a bullet at him. Assailing the impugned judgment, the present appeal has been filed.
3. The prosecution story, in a nutshell, is that the deceased Sirajul Ali Ahmed was in his shop by the name ‘Maazira Hardware’ situated in front of the NRL Petrol Pump at Adabari, Guwahati when a quarrel started between him and his younger brother Md. Saifuddin Ahmed i.e. the accused regarding parking of a motorcycle and a bicycle in front of their shops. When the quarrel was going on, at around 7.45 a.m. on 10.02.2013, Ms. Rubi Begum i.e. wife of the accused had called her father-in-law Md. Soifuddin Ali Ahmed who came to the place and directed the accused to bring the gun and shoot down the deceased. Accordingly, accused Saifuddin brought the gun from his residence and fired at the deceased in front of the shop and in presence of local people including Md. Samsul Ali Ahmed, who is the elder brother of the deceased and his son Md. Jitu Ali.
4. On 11.02.2013, the wife of the deceased viz., Arzeda Khanam had lodged an ejahar before the Officer-in-Charge, Maligaon Police Station, Maligaon reporting the incident. In the F.I.R. it was mentioned that after killing her husband, accused Md. Saifuddin Ahmed had made a phone call to the Maligaon Police Station so as to give a twist to the incident and had informed the police that it was the elder brother Samsul Ali Ahmed who had actually shot the deceased. According to the informant, the incident was a part of a pre-planned conspiracy between Md. Soifuddin Ali Ahmed and his son Md. Saifuddin Ahmed alias Sahil and Ms. Rubi Begum i.e. the wife of Saifuddin Ahmed, to kill the deceased due to some property dispute.
5. On receipt of the ejahar, Jalukbari P.S. Case No.105/2013 was registered under Sections 120(B)/302 of the IPC and the matter was taken up for investigation. The case was registered against two accused persons viz., the appellant Saifuddin Ahmed and his father Soifuddin Ali Ahmed. However, it appears from the record that during the course of investigation, Soifuddin Ali Ahmed had died as a result of which, the Investigating Officer (I.O.) had submitted charge-sheet under Section 302 of the IPC read with Sections 25(1B)(a)/27(1) of the Arms Act against the appellant only.
6. On committal of the case for trial by the Sessions Court, formal charge was framed against the appellant under Section 302 of the IPC read with Section 27(1) of the Arms Act, 1959 and the same was read over and explained to the accused. However, since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial.
7. The prosecution had examined two witnesses viz., PWs-1 and 2 as eyewitnesses. Besides them, 9 other witnesses including the doctor, who had conducted the post-mortem examination, the I.O. who had carried out the investigation and the Scientist in the Forensic Laboratory were examined as official witnesses. After recording the evidence adduced by the prosecution side, the accused was examined under Section 313 Cr.P.C. and his statements recorded whereby, he had not only denied all the incriminating circumstances put to him but had also taken a plea that at the time of the incident he was confined in his home due to paralysis suffered by him in one of the legs and therefore, had nothing to do with the incident. As a matter of fact, according to the accused, a quarrel took place between his deceased father and brother Samsud, who were trying to snatch the gun from each other’s hand and his brother was lying on the ground. Then the police came and seized the gun from the hands of his father. The defence side, however, did not adduce any evidence.
8. The learned Additional Sessions Judge had evaluated the evidence available on record and came to a finding that the testimony of the two eye-witnesses PWs-1 and 2 were reliable. In the opinion of the learned trial court, the prosecution had succeeded in establishing that the deceased had died due to the bullet injury received from a single barrel gun used by the appellant and accordingly, had arrived at the conclusion that the prosecution has succeeded in establishing the charge brought against the accused beyond reasonable doubt. Based on such conclusion, the accused was convicted and he was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5000/- for committing the offence under Section 302 of the IPC. However, no sentence was awarded to the appellant under the amended provision of Section 27 of the Arms Act, 1959 on the ground that there is no penal provision provided by the statute for violation of Section 5/7 of the Arms Act since, the accused was holding a licensed arm.
9. By referring to the materials available on record, Mr. Choudhury, learned senior counsel appearing for the appellant, has argued that there are serious procedural lapses in recording the testimony of child witness PW-2 and the evidence adduced by PW-1 suffers from material contradictions rendering their testimonies wholly untrustworthy. Contending that the eye-witnesses examined by the prosecution side, more particularly the PW-1 was not believable and by referring to the conduct of the PW-1 in his failure to inform the police after the incident or to accompany the injured to the hospital, Mr. Choudhury has argued that there is record of previous enmity between the PW-1 and the accused i.e. his younger brother, over property dispute and since the father and the other brother (deceased) were already gone, the PW-1 has designedly implicated the appellant so as to usurp the entire immovable property all by himself.
10. By referring to the decision of the Supreme Court rendered in the case of Anil Phukan vs. State of Assam reported in AIR 1993 SC 1462 Mr. Choudhury has argued that although law is settled that conviction for committing murder can be based on the testimony of a single eye-witness, yet, the Court must be satisfied that the evidence of the eye-witness is trustworthy before arriving at such a conclusion. When it is found that the sole eye-witness is an interested witness having previous enmity, according to Mr. Choudhury, it would not be safe to convict the accused on the testimony of the sole eye-witness.
11. Placing reliance on a decision of the Supreme Court rendered in the case of State of Tamil Nadu vs. Subair alias Mohamed Subair & others reported in AIR 2009 SC 1189 Mr. Choudhury has further argued that the unnatural conduct of the eyewitness would be a relevant factor to be considered by the Court while considering the probative value of the evidence adduced by such a witness. Mr. Choudhury has argued that the post-mortem report mentions of as many as three injuries in the dead body which does not tally with the eye-witness account of PW-1. The above discrepancy also goes to show that the PW-1 was deliberately withholding relevant information so as to shield the actual culprit in this case, who was his deceased father. Contending that the FSL report fails to connect the bullet with the seized gun, Mr. Choudhury has further argued that there is no evidence to show that the shot was fired from the licensed gun of the accused which had resulted in the death of the deceased.
12. Mr. Choudhury, learned senior counsel has also placed reliance on the decision of the Supreme Court rendered in the case of Reena Hazarika vs. State of Assam reported in AIR 2018 SC 5361 to argue that the explanation furnished by the accused in his statement recorded under Section 313 Cr.P.C. ought to have been considered and dealt with by the learned trial court which has not been done in this proceeding. Therefore, the impugned judgment was liable to be set aside on such count as well. Since the conduct of the PW-1 soon after the occurrence was not natural and since the PW-4, who is an independent witness, did not mention about the presence of the appellant at the place of occurrence, the testimony of PW-1, according to Mr. Choudhury, is liable to be discarded as untrustworthy, in which event, the present would be a fit case for setting aside the conviction of the appellant by giving him the benefit of doubt. In support of the above argument, the appellant’s counsel has also relied upon a decision of the Supreme Court rendered in the case of State of Maharashtra vs. Raju Bhaskar Potphode reported in (2007) 11 SCC 261.
13. Responding to the above, Mr. Phukan, learned Public Prosecutor, Assam, has argued that the PW-1 has categorically deposed before the court that he had seen the occurrence and during the cross-examination the evidence of this witness has remained intact. That apart, submits Mr. Phukan, the deposition of PW-1 before the Court is consistent with his statement recorded by the I.O. soon after the incident and there is no contradiction in his testimony. Since the presence of the PW-1 in the place of occurrence finds due corroboration from the evidence of PW-4 who is an independent witness, hence, submits Mr. Phukan, there can be no doubt about the presence of this witness at the place of occurrence. Further, the testimony of PW-1 finds due corroboration from the evidence of PW-2. Therefore, submits Mr. Phukan, since there are two eye-witnesses in this case who had seen the incident, the charges brought against the appellant has been rightly held to have been established by the prosecution by direct evidence.
14. Referring to the description of injuries in the post-mortem report and the apparent inconsistency thereof with the occular evidence adduced by the PW-1, Mr. Phukan submits that law is well settled that medical evidence is to be used for the purpose of corroboration only. According to Mr. Phukan, the injury No.2 in the postmortem report tallies with the version of PW-1 and it is possible that due to the impact of the gun shot, the deceased might have suffered other injuries on falling down on the ground or hitting the wall. Mr. Phukan has argued that the time of death has been clearly mentioned in the post-mortem report and it is established from the evidence of the doctor PW-5 that the deceased had died a homicidal death. As such, the medical evidence supports the prosecution case.
15. In so far as the failure to connect the seized bullet with the wound in the body of the deceased based on FSL report is concerned, Mr. Phukan has argued that there has been substantial delay in sending the specimen to the Forensic Science Laboratory (FSL) as well as in carrying out the Laboratory test which could be the reason why the seized “wad” and the deformed pellets could not be connected with the seized weapon. However, the same alone would not be fatal to the prosecution case. To sum up his argument, Mr. Phukan has argued that this is a case based on direct evidence and the prosecution has succeeded in establishing the charge beyond reasonable doubt. As such, the present is not a fit case for interfering with the conviction of the appellant. In support of his above argument, Mr. Phukan has relied upon the following decisions :-
(1) (1983) 2 SCC 174 [Solanki Chimanbhai Ukabhai vs. State of Gujarat] Para 13.
(2) (2002) 6 SCC 81 [Krishna Mochi and others vs. State of Bihar].
(3) (2011) 7 SCC 295 [ Waman and others vs. State of Maharashtra]
(4) (2017) 11 SCC 195 [Yogesh Singh vs. Mahabeer Singh and others]
16. We have considered the arguments advanced by learned counsel for both the parties and have also carefully gone through the materials available on record. As noted above, the prosecution had examined PWs-1 and 2 as eye-witnesses and the conviction of the appellant is also by and large based on the testimony of these two eye-witnesses. Therefore, we propose to discuss the evidence adduced by these two witnesses first in point of time.
17. PW-1, Samsud Ali is the elder brother of the deceased as well as the accused. This witness has deposed that his shop is located at the Adabari Bus Stand where his two other brothers have also got their shops adjacent to that of his. On the day of the incident i.e. on 10.02.2013 he came to open his shop at 5.30 a.m. At that time he had some altercation with the accused regarding opening of the shutter of his shop. His brother Saifuddin Sahid i.e. the accused herein had extended his shop towards his shop as a result of which, whenever he used to open the shutter of his shop, the same used to touch the shop of his brother. As such, his brother (accused) did not allow him to open the shutter of his shop. On the day of the incident, hearing the altercation, his brother Sirajul Ali i.e. the deceased came to enquire about the matter. On being explained Sirajul asked him to open the door. Getting strength from the above stand of his brother Sirajul, he had opened the shutter of his shop. At that stage, the accused started an argument with his deceased brother. He had also threatened his deceased brother of killing him by using gun and after sometime the accused had fired at his brother Sirajul Ali with a gun (single barrel gun) which belonged to his deceased father. The bullet had hit the left kidney of the deceased as a result of which, the kidney came out from the belly. So he had to send his injured brother to the nearest Sanjeevani Hospital along with other eye-witnesses to the incident. This witness has deposed that he had also tried to stop the bleeding.
18. During his cross-examination, PW-1 has deposed that the fruit market of the Adabari area starts from 3.30 a.m. in the morning but he used to always open his shop (Pan Shop) at 5.30 a.m. This witness has further stated that he resides at Pandu Sadilapur and the deceased, along with his family, also used to reside there. The said land belong to his grandfather. PW-1 has further deposed that he himself and his brother i.e. the deceased were debarred from the property of his father in the year 2008. PW-1 has, however, denied that he and his deceased brother used to torture their parents as well as other brothers and sisters physically as a result of which they were excommunicated (debarred) from the properties by making them “Tejya Putra”. PW-1 has also denied the suggestion that he had fired at his father and the bullet accidentally hit his brother i.e. the deceased or that the accused was assaulted by him in the year 2005 as a result of which, he had been leading the life of a handicap. This witness has also denied the suggestion that he had not made all these statements before the police or that the accused did not fire, with the one barrel gun at the deceased.
19. PW-2, Md. Jitu Ali is a minor. He is also the son of the PW-1 and claims to have witnessed the incident. PW-2 has deposed that on the day of the incident he had accompanied his father (PW-1) to the place of occurrence for bringing books. When the shuttering of the shop was being opened it touched the shop of the accused in the dock as a result of which, there was argument and his deceased uncle came to the place of occurrence. The accused started to argue with his uncle and threatened to kill the deceased with a one barrel gun. After some time, he fired at the deceased which hit the left side of the stomach of the deceased. His father tried to stop the bleeding and sent the injured to Sanjeevani Hospital. During his crossexamination, this witness has deposed that he was a student of 10th Standard aged about 15 years when the incident took place. Accompanied by his father, he had gone to the place of occurrence to purchase some books of higher class. He has stated that the book shops actually open a little late at around 9.00 a.m. The witness has denied the suggestions made to the effect that his father (PW-1) did not have any altercation with his accused uncle on the day of the incident; that there was no gun in the hands of the accused; that he had not accompanied his father to the place of occurrence; that he went to the place of occurrence only after the firing incident took place. This witness has also deposed that it is not a fact that his father had brought the gun and tried to fire at his grandfather and it accidentally hit his deceased uncle. He has also denied of having deposed before the court that being tutored by his parents.
20. PW-3, Arzeda Khanam is the wife of the deceased and the informant in this case. It appears that this witness was neither present in the place of occurrence nor did she witness the incident but later on, came to know about the occurrence from her sister-in-law, nephew and brother-in-law. This witness has deposed that the incident took place on 10.02.2013. On that day, her husband went to the shop located at Adabari near the NRL Petrol Pump at about 7.30 a.m. The shop of her elder brother-in-law was located nearby. The accused started an argument with her elder brother-in-law regarding opening of the shutter of his shop. Hearing the argument, her husband went to the place of occurrence and the accused started arguing with her husband. Seeing the above, her sister-in-law i.e. the wife of the accused had called her father-in-law and he also joined the argument and asked the accused to bring the gun. The accused had brought the gun and fired at her husband who died on the same day. PW-3 has also deposed that she was informed about the matter over phone by her sister-in-law at around 7.55 to 8.00 a.m. and the details of the incident was narrated to her by her nephew and brother-in-law. PW-3 has proved the F.I.R. Ext-1 by identifying her signature therein as Ext-1(1) and has further deposed that she was aware as to what was written in the F.I.R.
21. PW-4, Sri Dilip Kumar Singh was running a shop on tenant in the nearby area which was let out by the brother of the accused. PW-4 has deposed that he knew deceased Sirajul who had died about two years back as a result of quarrel between the brothers. On the day of the incident, while he was busy in his shop he had heard some hullah outside. So he washed his hands and came outside and saw that deceased Siraj was lying on the ground. He was shocked and left the place. Thereafter, the police came and recorded his statement. PW-4 has further stated that the incident had occurred between the elder brother Sirajul, Samsul and their father. Cross-examination of this witness was declined.
22. PW-5, Dr. Amarjyoti Patowary was the Associate Professor in the department of Forensic Medicine, Guwahati Medical College & Hospital (GMCH), who was on duty on 10.02.2013 and had performed post-mortem examination on the dead body of deceased Sirajul Ali. The doctor has proved the post-mortem report Ext-2. According to the post-mortem report, the following injuries were found in the dead body :
1. Fracture dislocation of the left waist joint (Colles fracture).
2. Penetrating injury with the lacerated irregular margin of size 4 cm X 2.5cm, abdomen cavity deep over left anterior oxillary line, 1 cm above iliac crest in left side of abdomen, coils of intestine coming out. No burning, blackening on fattoony present.
3. Laceration with contusion in surrounding tissue of size 2.5 c, X 2 cm X 0.3cm above (0.6 cm) injury No.2.”
23. PW-5 has opined that the death was due to haemorrhage and shock as a result of injury No.2 as described. All the injuries were ante-mortem. According to the PW-5, the injury Nos.1 and 3 were due to blunt impact and the injury No.2 was homicidal in nature and was caused by fire arms from the left side. Time since death was 2 to 6 hours. PW-5 has further opined that injury No.2 was sufficient to cause death in natural course.
24. Md. Motleb Ali was examined as PW-6. This witness had merely deposed that on the day of the incident he went to purchase fruits at the Adabari market and saw a person lying on the ground with injury on his body who was a shop keeper at Adabari market. Beyond that he did not know anything. Cross-examination of this witness was declined.
25. PW-7, Faizur Rahman has deposed that on the date of the incident, when he went to fill up petrol in his vehicle, he had heard sound of firing but did not know anything. Many people gathered there. He also went forward but did not know as to who all were involved in the incident. Police arrived at the place of occurrence after disappearance of the people who had gathered there. Later on, he was called by the police and asked to put his signature in a blank sheet. Ext-7(1) was his signature.
26. The evidence of PW-8, Rekibur Zaman is of no significance and therefore, does not call for any discussion.
27. Sri Upen Bora, who is an official working under the Directorate of Forensic Science Laboratory at Guwahati, was examined as PW-9. This witness has deposed that on 09.10.2013 he was handed over a wooden box which was properly sealed by the Director, FSL and he was advised to open the box, examine the exhibits inside the box and give his report. He has deposed that after opening the box he had found some articles inside the box by stating as follows :-
“1. One 12 bore SBBL Single barrel breech loading gun (serial No.A329927) which was marked by me as Exhibit 3.
2. One 12 bore empty fired cartridge case marked by me as Ext- B.
3. One plastic wad which was marked by me as Ext-C.
4. Six numbers of lead pellets which were collectively marked by me as Ext-D.” PW-9 has further deposed that after examining the articles inside the box he had arrived at the following conclusions :-
“1. Ext. A was a fire arm under the Arms Act and it was serviceable in its present condition.
2. GSR particles have been detected in the barrel swab of Ex-A which indicated that Ex.A was used to fire cartridge prior to its receipt in the laboratory.
3. Test firing was done in laboratory through Ex-A. The test fired cartridge cases and the Ex.B were compared under a powerful comparison microscope. And found that firing point impression on Ex.B and on fired cartridge cases were not clear also there is lack of individual characteristic marks on Exhibit B and on the test fired cartridge cases. Therefore a definite opinion could not be arrived in the comparison process.
4. Ex. C is a fired plastic wad.
5. Ex.D were pellets of a fired 12 bore cartridge. Ex.7(A) is my result, Ex.7(A) (1) is my signature. Ex.8 is forwarding of report of Director FSL. Ex.8(1) is the signature of Director, Mr. S. Bora.”
During his cross-examination, PW-9 has stated that he could not say as to whether Ext- D lead pellets came from Ext-A or not nor could he definitely say the exact time of firing from Ext-A gun.
28. PW-10, Sri Binod Kumar Das had carried out investigation in connection with Jalukbari P.S. Case No.105/2013. PW-10 has deposed that on 10.02.2013, he was posted at the Jalukbari Police Station. On that day, the Officer-in-charge of the Police Station had directed him to go to Jalukbari area since a firing incident had taken place. Accordingly, he went to the place of occurrence along with his staff after making G.D. Entry No.354 dated 10.02.2013. Ext-9 is the certified copy of G.D. Entry No.354 and Ext-9(1) was the signature of the Officer-in-charge of the Police Station. PW-10 has deposed that the place of occurrence was near the Adabari NRL Petrol Pump. When he arrived at the spot he had found Saifuddin Ahmed (accused) and Soifuddin Ahmed i.e. the father of the accused. The public had informed that they were the persons who had fired at the victim. Accordingly, he took them into custody and on making enquiry, he came to know that Siraj Ali Ahmed had been sent to Sanjeevani Hospital for medical treatment. He found out the spot where the body of the injured was lying with blood stain on the ground. He had seized the gun from the accused persons along with six rounds of cartridge and one empty cartridge vide Ext-7, recorded the statement of the witnesses and brought the accused persons Saifuddin Ahmed and Soifuddin Ahmed to the Police Station. Thereafter, he went to Sanjeevani Hospital to meet the victim but the victim was declared brought dead by the doctors at Sanjeevani Hospital. Thereafter, he got the inquest performed by a Magistrate and had sent the dead body for post-mortem examination. PW-10 has further stated that the doctors at the GMCH had brought out the bullet from the dead body of the victim by conducting surgery and had handed the same over to him. He had, accordingly, seized the bullet vide seizure-list Ext-10. On 16.02.2013 he sent the seized arms through the DSP for FSL examination and on 27.02.2013 he had collected the post-mortem report. At that stage, he was transferred from Jalukbari P.S. as a result of which, he had handed over the Case Diary to the Officer-in-Charge. This witness has deposed that the seized arms and ammunitions were kept in the Malkhana of the Police Station vide M.R. No.42/13. Mat. Ext-1 is the seized gun, Mat. Ext-2 is the arms licence in the name of Md. Soifuddin Ahmed and Mat. Ext-3 is the application dated 06.11.2012 made by Saifuddin to the Deputy Commissioner, Kamrup for renewal of his gun licence. During his cross-examination, PW-10 has stated that witness Jitu Ali (PW-2) was 15 years at the time of his examination and he had recorded the statement of the witness Jitu Ali. He has further stated that during the course of investigation he came to know that there was a civil dispute between the victim and the accused persons and his relatives and their relationship was strained. The I.O. has further deposed that there was a house at the place of occurrence which belonged to the father of the accused.
29. PW-11, Md. Hasim Ali was posted at Jalukbari Police Station and took over the investigation of the case from the PW-10. PW-11 has stated when he took over the investigation the same was almost complete and only the FSL report of the seized articles were to be collected. Accordingly, he had collected the FSL report and registered the case under Sections 25(1B)(a)/27(1) of the Arms Act. PW-11 has also deposed that he had submitted charge-sheet against the accused Saifuddin alias Sahil under Section 302 IPC read with Sections 25(1B)(a)/27(1) of the Arms Act and Ext-14 is the charge-sheet.
30. In the backdrop of the evidence brought on record by the prosecution side, we are now called upon to examine as to whether the prosecution has succeeded in proving the charge brought against the accused beyond reasonable doubt.
31. As noted above, PW-1 is the elder brother of the deceased as well as the accused and in his evidence, he has claimed to have seen the occurrence. The evidence of PW-1 narrates the entire incident which ended up in the gunshot being fired by the appellant on his brother i.e. the deceased. The presence of the PW-1 in the place of occurrence is confirmed by PW-4, who is an independent witness. The PW-3 i.e. the informant in this case has also deposed before the court saying that the entire incident was narrated to her by her brother-in-law (elder) and nephew i.e. PWs- 1 and 2, respectively. The evidence adduced by PW-1 remained intact during his cross-examination.
32. By arguing that the evidence of PW-2 i.e. the other eye-witness is not credible since his statement was not recorded by the I.O. and the learned court below also did not test the competence of the witness to depose before the court by asking him intelligent questions, Mr. Choudhury has sought to impeach the evidence of the PW- 2. However, we find from the testimony of the PW-10 (I.O.) that he had, in fact, recorded the statement of PW-2 and at that time, he was 15 years old. The evidence of PW-2 is free from contradiction and finds corroboration from the version of the PW- 1. During his cross-examination, the evidence of this witness could not be shaken.
33. PW-3 has also deposed that the incident was narrated to her by PW-1 and PW- 2. The evidence of PWs-1 and 2 corroborates the version of each other and is consistent with the prosecution story. The learned trial court had also found the testimonies of PW-1 and PW-2 to be believable and relied upon their evidence so as to convict the accused person. We, therefore, see no reason to doubt that PW-2 was also an eye-witness to the occurrence.
34. PW-2 had categorically stated that on the day of the incident, he had accompanied his father to the shop at Adabari for procuring some books which was early in the morning. It transpires from the evidence on record that the shops at Adabari usually open very early in the morning i.e. at around 3.00 a.m. and therefore, it is possible that the book shops in the said market also open earlier than the normal market time. Since the PW-2 had accompanied his father to the market on the day of the incident hence, he would be a natural eye-witness to the incident.
35. In so far as the failure of the learned court below to record the questions put to the child witness before recording his evidence, it is to be noted that there is no absolute proposition of law that the trial court must record the questions and answers in the evidence of the child witness to indicate the basis on which a satisfaction on that behalf had been arrived at. What is important is the fact that the judge has to form an opinion that the witness was competent to depose. In the case of P. Ramesh vs. State Rep. by Inspector of Police reported in (2019) 20 SCC 593 the Apex Court, while dealing with a question of similar nature, has observed as follows :-
“ 15. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. [Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64]. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. [Sarkar, “Law of Evidence” 19th Edition, Volume 2, Lexis Nexis, p. 2678 citing DPP v M (1977) 2 All ER 749 (QBD)] If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”
36. From the decision referred to above, it will be crystal clear that evidence of a child witness can be recorded if the concerned Judge is of the opinion that the witness is capable enough to understand the question and give answers based on such understanding. It is for the Judge to arrive at such a satisfaction. In the present case, the learned Judge was satisfied that the PW-2 was competent to depose. His evidence is free from contradiction and has been duly corroborated by other evidence. The version of PW-2 also appear to be truthful. He is an eye-witness to the occurrence. Therefore, we see no justifiable ground to discard his testimony.
37. Mr. Choudhury, learned senior counsel for the appellant, has strenuously argued that the PW-1 had falsely implicated the appellant so as to usurp the entire family property and also to screen his father i.e. the real culprit from facing criminal proceeding. However, there is nothing on record to support such an argument. The above argument is not found to be tenable on account of the fact that when the statement of PW-1 was recorded by the I.O. wherein he had implicated the appellant, at that time, their father Soifuddin was alive. Therefore, the PW-1, in our view, would stand to gain nothing by falsely implicating the appellant. Moreover, if the father of the PW-1 viz., deceased Soifuddin had, in fact, debarred two of his sons including the PW-1 from the family property, then also, it is difficult to comprehend as to why, the PW-1 could at all be interested in screening the real culprit. Therefore, viewed from any angle, it is difficult to accept that being interested witnesses the PWs-1 and 2 had deposed falsely.
38. According to PW-4, he did not see the appellant in the place of occurrence. But it has come out from the evidence on record that when PW-4 reached the place of occurrence, the deceased was lying on the ground which signifies that he came there after the incident had occurred. Therefore, it is possible that by that time the appellant had left the place as a result of which the PW-4 did not mention about his presence at the place of occurrence.
39. In the case of Solanki Chimanbhai Ukabhai (supra) the Supreme Court has observed that the value of medical evidence is only corroborative. It only proves that the injuries could have been caused in the manner alleged and nothing more. It has been further held that the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence unless, of course, the medical evidence goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eye-witnesses. In the instant case, it is correct that the PW-1 or PW-2 did not mention about the injury Nos.1 and 3 as reflected in the post-mortem report. But that alone cannot be a ground to discard the testimonies of the eye-witnesses once it is found that they had seen the occurrence. We also find force in the submission of the learned Public Prosecutor that the injury Nos.1 and 3 could easily have been caused due to the impact of the gun shot on the body of the victim banging against the wall or on falling down on the ground, more so, since it is established from the evidence of PW-5 that injury No.2 was caused by gunshot and the same was sufficient to cause death in natural course. It is to be noted herein that during post-mortem examination, shot gun pellets were also recovered from the abdominal cavity of the deceased.
40. Coming to issue of PWs-1 and 2 being interested witness, whether their evidence could have been relied upon by the trial court, in the case of Waman and others (supra) the Supreme Court has observed that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out if the same is found to be consistent and true. In other words, the relationship is not a factor to affect the credibility of a witness and the courts would have to scrutinize their evidence meticulously and with a little care. In this case, the eyewitnesses PWs-1 and 2 are no doubt related both to the victim as well as the accused person. It may also be correct to say that there were some property disputes between the brothers in the family. But, as noted above, there is no evidence to show that the PW-1 would stand to benefit in any way by falsely implicating the accused. The
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refore, the mere fact that the PW-1 is the brother of the deceased cannot be a ground to disbelieve him. 41. There is no doubt about the fact that the incident did take place on the date and time mentioned in the F.I.R. wherein one of the brothers of the PW-1 had died due to gunshot injuries. The licence of the single barrel gun as well as the gun were seized by the police and the same was found to be in the name of the appellant. The medical report clearly establishes the homicidal death of the deceased due to bullet injury. The testimony of the eye-witnesses have been corroborted. Therefore, there is no reasonable basis for this Court to presume that the PWs-1 and 2 had falsely implicated the accused in this case. 42. This brings us to the last argument of Mr. Choudhury wherein, he had referred to the conduct of PW-1 soon after the incident and by relying upon the decision of the Supreme Court in the case of Subair alias Mohamed Subair & others (supra), submitted that the PW-1 did not inform the police or the family members of the victim nor did he accompany the injured to the hospital. However, we find that soon after the incident the PW-1 did try to control the bleeding from the wounds of the injured and had also informed his family members. Therefore, it cannot be said that soon after the incident, the conduct of PW-1 was unnatural. 43. In so far as the plea raised by the appellant’s counsel regarding nonconsideration of the explanation furnished by the accused while recording his statement under Section 313 of the Cr.P.C. in the light of the law laid down in the case of Reena Hazarika (supra), it must be observed herein that the accused has taken a stand while recording his statement under Section 313 Cr.P.C. that at the time of the incident, he was at home and when he went outside hearing the noise the police had arrested him. In reply to question No.11, the accused has stated that his father and brother Samsul were trying to snatch the gun from each other’s hand and brother Siraj was lying on the ground. The police came and took the gun from the hands of his father. The answer of the accused in reply to question No.11 is not only bereft of any sense but we also find that his stand that he was inside the house during the incident stands disproved from the evidence of the prosecution witnesses which includes the testimony of the eye-witnesses. It may be correct to say that the learned trial court has not specifically dealt with the aforesaid explanation. However, it is also correct that the appellant has not been able to show any prejudice being caused to him on such count. Therefore, having regard to the facts and circumstances of the case, we are of the view that the failure on the part of the learned trial court to specifically deal with the reply of the accused under question Nos.4, 8 and 11 did not cause any prejudice to the appellant. Therefore, the same would not have any vitiating effect on the impugned judgment. 44. It must be borne in mind that the prosecution case is based on direct evidence. There are two eye-witnesses to the occurrence and their evidence have been found to be free from contradiction and hence, reliable. When there are eyewitnesses to prove the charge, failure on the part of the prosecution to establish every link in the chain of circumstance would become irrelevant. For the above reason, when the charge is proved by the direct evidence, failure on the part of the prosecution to connect the pellets with the seized gun would be of no assistance to the accused in this case. 45. For the reasons stated herein above we do not find any good ground to interfere with the impugned judgment dated 19.09.2019 passed by the learned court below. We accordingly uphold the conviction of the appellant under Section 302 of the IPC and affirm the sentence awarded to him by the learned court below. The appeal stands dismissed. Registry to send back the LCR.