LexPROMODE DEY versus STATE OF WEST BENGAL
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[2012) 3 S.C.R. 887 PROMODE DEY v. STATE OF WEST BENGAL (Criminal Appeal No. 405 of 2008) MARCH 22, 2012 [A.K. PATNAIK AND SWATANTER KUMAR, JJ.] Penal Code, 1860 - s. 302 - Murder- Child witness PW2 A B - Conviction by trial court - Upheld by High Court - Justification - Held: PW2 gave a very natural account of the c incident - Right from the time of the incident till the time she was examined in court, PW2 consistently said that accused- appellant had killed her mother with a 'daa' - It cannot, therefore, be held that PW2 was tutored to depose against the appellant - Evidence of PW2 also corroborated by the fact D that a blood-stained 'daa' was recovered on the very date of the incident from a jungle by the side of the house of the appellant - Medical evidence of PW10 (the doctor who carried out post mortem) did not contradict the evidence of PW2 that appellant struck the deceased on her head, back, fingers and E her throat - Guilt of appellant established beyond reasonable doubt - High Court right in sustaining the conviction of appellant on the basis of eyewitness account of PW-2 and the evidence of PW-1, PW-8 and PW-11 as well as the recovery of 'daa' at the instance of the appellant. F The mother of an eight year old girl PW2 was found murdered. PW2 stated appellant had entered into their house with a big daa and killed her mother. The daa allegedly used in killing PW2's mother was recovered from a jungle at the side of the house of the appellant. G The trial court convicted the appellant under Section 302 IPC and sentenced him to rigorous imprisonment for life. On appeal, the High Court held that the evidence of PW- 2 as corroborated by the evidence of PW-1 (the 887 H 888 SUPREME COURT REPORTS (2012] 3 S.C.R. A grandmother of PW2), PW-8 (a resident of the village in which the house of the deceased was located) and PW- 11 (the father of PW2) together with the fact of recovery of the daa at the instance of the appellant and its seizure soon after the incident had established that the appellant B was guilty of the offence of murdering the deceased and accordingly sustained the conviction and sentence of the appellant. The conviction of appellant was challenged before this Court on grounds that the prosecution was not able C to prove that he had committed the murder of PW2's mother beyond reasonable doubt. It was contended that where the entire case is based on the evidence of a child witness (i.e. PW2), who is prone to tutoring, the conviction is not safe; that the Magistrate before whom D the statement of PW2 under Section 164 of the Cr.P.C. was recorded was not examined; that the granduncle of PW-2, who was present in the house, was also not examined; that PW-3, PW-4, PW-5, PW-6, PW-7 and PW-9 had all turned hostile and not supported the prosecution E case; and that from the evidence of PW-15, the 1.0., who carried out the further investigation, it is clear that the blood-stained daa was sent for examination to the Forensic Science Laboratory (FSL) but the FSL report F was not produced before the Court. Dismissing the appeal, the Court HELD: 1. It is seen that PW-2 had answered the first few questions put by the Court very smartly and intelligently and the Court made a mention while G recording her evidence that she could become a witness in this case. That apart, she has given a very natural account of how the appellant killed he·r mother. Moreover, soon after the incident on 23.02.2002 she told her grandmother (PW-1) and her father (PW-11) that it was the H appellant who had killed the deceased and both PW-1 PROMODE DEY v. STATE OF WEST BENGAL 889 and PW-11 deposed before the Court in their evidence A that they were told by PW-2 that the appellant had killed the deceased with a daa. PW-8, who was a resident of the area, has also stated in his evidence that soon after the incident he had heard PW-2 saying that the appellant had killed the deceased. Moreover, two days after the incident B on 25.02.2002 she had given a statement before the Magistrate under Section 164, Cr.P .C., that the Panchayat, namely, the appellant, had killed the deceased by a daa. Thus, right from the time of the incident till the time she was examined in court, PW-2 has consistently said that c the appellant had killed the deceased with the daa. It cannot, therefore, be held that PW-2 has been tutored to depose against the appellant [Paras 7, 8] [89
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