Witnesses relative of the complainant – evidence cannot be thrown out – HC
D.D:- 20 April,2022
Guwahati High Court observed (MD. SAIFUDDIN AHMED @ SAHIL v. THE STATE OF ASSAM AND ANR) there is no clear legal principle dictating that the trial court must record the questions and answers in the testimony of the child witness to identify the basis on why a finding of satisfaction was reached. Important is the fact that the judge must determine whether the witness was competent to testify.
Deceased Sirajul Ali Ahmed was in his shop 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. Session Court convicted the accused U/s 302 IPC and 27 of Arms Act. Aggrieved appellant approached High Court.
Observed by the High Court 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.
Held by High Court 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. 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.
High Court held 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.
Appeal Dismissed- Conviction Upheld.
SAIFUDDIN AHMED @ SAHIL
V/S
THE STATE OF ASSAM AND ANR
