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In deciding the question of intention of causing death, the nature of weapon used, the part of the body on which the blow was given, the force and number of blows are all factors from which an inference as to the intention can, as a fact, be drawn. Here in the instant case from a perusal of the record and also the testimonies on record, it is amply proved that by the time the incident had occurred, the dispute over landed property had aggravated between the deceased Altaf and the appellants.
The factum of dispute between the parties relating to landed property has not been emphatically denied by the defence.
The learned counsel has tried to soft-peddle the dispute stating that it was over a small piece of land. We have also perused the reasoning given by the court below as regards motive and in our considered view, the motive was too strong for commission of the offence. The argument that the dispute was over a small piece of land, cannot be stretched to a point as to hold that the motive was too feeble to impell the appellant to commit the crime.
The next argument advanced by the learned counsel for the appellants is that appellant-Akhlaq was blind person. Defence has to prove his defence to the extent of preponderance of probability where as prosecution has to prove his case to the hilt of all reasonable doubts. On the other hand, the accused-appellant Akhlaq has not produced any convincing evidence in defence to prove that he was blind person.
The appellant Akhlaq even to the extent of preponderance of probability failed to prove that he was blind person at the time of occurrence. The next argument which was emphatically canvased is that P. In connection with the above submission, we have to glance back into the evidence of P. It would appear from the record that at the time of incident the witness was aged about 9 years. She stated that on the day of occurrence she was sleeping with her mother, father, sister and brother and at about 3. This witness too was subjected to grueling cross examination.
In her evidence, she had denied that she was tutored. The mental agility of this witness was tested by the trial court by asking her to tell the time as indicated by the wall clock hanging in the court. She recognized Mohd. Akhlaq and Afaq who were present in the court. The evidence of this witness is concise and precise and it is specific and vivid. It is neither embellished nor embroidered. It is the evidence of a child who has gone through the unusual and cruel incidence. It is pathetic that the girl of a tender age has seen her father, mother and others being killed.
The Indian Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be immune from tutoring. Section 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.
It is settled position in law that 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 thereof and reliability can record conviction based thereon. In Dattu Ramrao Sakhare v. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction.
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In other words even in the absence of oath the evidence of a child witness can be considered under Section of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The above position was highlighted in the cases of Ratansingh Dalsukhbhai Nayak v.
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Devaji Dhote Vs. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records it is clear that his conclusion was erroneous.
This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. In view of the law laid down by the Apex Court in the above mentioned decisions, we are of the considered view that looking at from any angle the judgment of the trial court on this point does not suffer from any infirmity to warrant interference.
The next argument advanced by the learned counsel for the appellants is that the first information report is anti-timed. A bare perusal of the first information report would reveal that the incident took place on We have given our anxious consideration on the point and from a close scrutiny of the entire evidence on record it clearly transpires that the first information report is not anti-timed.
The next argument revolves round the submission that it was not possible for two persons to have committed the murders that too in the presence of number of witnesses.
It has come in the evidence that deceased Altaf was asleep outside at the door of the house, while Agma deceased was asleep in the court yard. The other deceased persons were asleep in the room situated on the western side of the house. It has again come in the evidence of the witnesses that they woke up on hearing the groans of the deceased and injured.
All the deceased and injured were asleep at separate places. A person who is fast asleep if attacked would not react so quickly as a person who is quite awake and is attacked. In this circumstance, the sound of groaning or crying gets subdued. From the facts on record, it would transpire that operation of attacking with axes were carried with utmost precision and quickness and in such circumstances, it would leave little room for the deceased to have reacted or cried for help or to ward off the blows particularly when they were fast asleep.
In view of the facts and circumstances of the case, we are of the considered view that the entire operation of attacking with excess by the accused-appellants Akhlaq and Afaq could well be conducted by the accused-appellants. The next subsidiary argument advanced across the bar is that the investigation was not properly conducted and the investigation conducted was shoddy and left many questions unanswered and further that the investigating officer etc were not cross examined and therefore, it was a fit case for remand.
All these aspects have been dealt with at prolix length by the court below and we do not propose to burden this judgment by reiterating all those details all over again. It would suffice to say that the trial court has given cogent reasons to dispel the contentions that the investigation was shoddy. We feel called to notice certain decisions on the point. In the case of Rampal Pithwa Rahidas v.
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State of Maharashtra reported in Supp 2 SCC 73 a somewhat similar situation occurred where the Apex Court reiterated the duty of the investigating agency to act honestly and fairly. In that case a communication-cum-application by an approver, before he was made approver wherein he had claimed the bail on the ground that he knew nothing about the offence and he was unnecessarily being incarcerated, was not confronted to him at the time of trial.
The Court took the view that though the witness was not confronted with that statement and in a strict sense it was not brought before the Court, yet the same communication could be looked into by the Courts. In every civilized society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice.
Let no guilty man go unpunished but let the end not justify the means! The Courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means -otherwise it would be an invitation to anarchy. In the case of Ram Bihari Yadav Vs. State of Bihar reported in 4 SCC , it was held that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law- enforcing agency but also in the administration of justice.
In the case of Paras Yadav Vs. State of Bihar reported in 2 SCC , it was held by the Hon'ble the Supreme Court that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
In the case of Amar Singh. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. In the case of State of M. Mansingh reported in 10 SCC , the Apex Court has observed in paragraph 12 of the judgment as under:.
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Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent In the case of Dhanaj Singh alias Shera and others Vs. State of Punjab reported in 3 SCC , the Apex Court has observed in paragraphs 5 and 8 of the judgment as under:. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
The stand of the appellants relates esentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent In the case of Zahira Habibulla H.
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Sheikh and Anr. State of Gujarat and Ors. The Courts have to take a participatory role in a trial.