JUDGMENT
1. This appeal is directed against the judgment of conviction and order of sentence dated 6th September, 1986 by 3rd Additional Sessions Judge, Purnea in [CASE NUMBER] by which both these appellants were convicted under [SECTION] of the [ACT] and were sentenced to undergo imprisonment for life. One accused [ENTITY] was acquitted of all charges, giving him benefit of doubt and these two appellants, who were also charged for committing murder of [ENTITY], were held not guilty by the trial Court and were acquitted of said charge by the same judgment.
2. Shortly stated, the case of prosecution, as disclosed in the fardbeyan (Ext. 5) of P.W. 4, informant [ENTITY], was that on 15-7-1983 about 4-00 p.m. when he was purchasing vegetables in Khabaspur Hat along with [ENTITY] (since dead), he was informed by a woman that dead bodies of a male and a female were lying in the way and two children were there who were weeping and then he went towards Kabilashi village and in north of Kabilashi village he found that dead body of [ENTITY] with injuries on his neck, chest, side of chest and hand. Further case of prosecution is that when he went ahead, he found his two sister's daughters, [ENTITY] aged about six years and [ENTITY] aged about 2 years weeping and further found the dead body of his sister [ENTITY] with injuries on her neck leg and lower lip and he further claimed that, on his enquiry, [ENTITY] (P.W. 1) told him that appellant [ENTITY] armed with [ENTITY] and [ENTITY] armed with [ENTITY] inflicted injury to her mother on which she raised alarm and she fell down and slept (meaning dead). It was also mentioned that [ENTITY], [ENTITY], [ENTITY], [ENTITY] (all not examined) [ENTITY] and [ENTITY] arrived there and they saw the dead body. Fardbeyan of [ENTITY] was recorded at 2-00 p.m. on 16-7-83, on the basis of which [ENTITY] [CASE NUMBER] was registered against these appellants and the police, after due investigation, submitted charge sheet and subsequently a supplementary charge-sheet was also filed against [ENTITY] who was later on acquitted after trial. After cognizance and commitment, these appellants and [ENTITY] were put on trial and whereas these appellants were convicted as aforesaid, [ENTITY] was acquitted. These appellants were also acquitted of the charge regarding murder of [ENTITY] by the trial Court.
3. From the trends of prosecution witnesses and statement of appellants under [SECTION] of the [ACT] the defence appears to be that they were falsely implicated in this case.
4. The prosecution examined altogether seven witnesses in support of its case out of whom P.W. 3 [ENTITY] was tendered for prosecution and P.W. 2 [ENTITY] is a formal witness who proved his signature on the inquest report prepared in his presence. P.W. 7 [ENTITY], widow of deceased [ENTITY], stated about alleged motive of the occurrence that both these appellants were entangled with [ENTITY], who happened to be sister-in-law of deceased [ENTITY]. P.W. 5 is Dr. [ENTITY], who held postmortem examination of the dead body of [ENTITY] and proved the post mortem report (Ext. 4). P. W. 6 is S.I. [ENTITY] I.O. of this case. P.W. 4 is [ENTITY], the informant who is not an eye-witness and his fardbeyan and evidence is based on reported statement of P.W. 1 [ENTITY], the minor daughter of deceased aged about six years, at the time of occurrence, and nine years at the time of her examination in Court.
5. P.W. 4 [ENTITY] claimed to have gone to the P.O. on getting information regarding two dead bodies found in the way and found his two sister's daughter, including P.W. 1 and further found the dead body of his sister [ENTITY] lying in the land adjacent south to the road (foot path) with injuries on her person. The inquest report (Ext. 8/1) prepared by the Investigating Officer, also supports the prosecution case regarding injuries found on the person of deceased [ENTITY]. Her dead body was sent for postmortem examination. P.W. 5 Dr. [ENTITY] stated to have held post mortem examination on 17-7-1983 at 8-30 a.m. and further stated to have found the following injury on her person :
i. One sharp cut wound on the left side of the neck and front of the neck cutting skin, large blood vessels, muscles trachea and oesophagus. The length of the wound was 51/2" x 2" wide and 21/2" deep up to the cervical bone.
ii. One sharp cut wound 3" x 1" x 1/2" on the cheek and lower lip.
iii. One sharp penetrating wound 11/2" x 1/2" x 3/4" on upper part of the chest and neck in the middle.
iv. One sharp penetrating wound 1" x 1/2" x 1/4" on right cheek.
v. One sharp cut wound 2" x 1" x on the left forearm.
vi. One sharp cut wound 3" x 1/2" x 1" on left palm, vii. One sharp cut wound 2l/2" x 1/2" x 3/4" on right palm.
According to P.W. 5, the injuries were caused by sharp cutting substance such as katta and chhura and penetrating wound by chhura. P.W. 5 opined that the death was caused due to haemorrhage and shock as a result of injuries mentioned above and particularly as a result of injury No. 1. He further opined that injury was caused by sharp cutting weapon such as katta and dagger. Time elapsed since death was assessed as within 48 hours. He proved the post-mortem report (Ext. 4). This clearly indicated that [ENTITY] died a homicidal death.
6. Now the question for consideration is as to who caused those injuries on [ENTITY] resulting in her death. Since the informant P.W. 4 is a hearsay witness, the entire case of prosecution depended upon the evidence of P.W. 1 [ENTITY], who was then aged about 6 years and thus was solitary child witness of the said occurrence. The trial Court in its judgment in paragraphs 12,13 and 14 discussed the evidence of P.W. 1 on the point of occurrence and found her evidence to be reliable against these two appellants, but the trial Court at the same time disbelieved her testimony regarding acquitted accused [ENTITY]. The learned counsel for the appellants contended that the trial Court without making any preliminary enquiry to test the competency of child witness, P.W. 1, straightway recorded her evidence and wrongly placed reliance on her testimony inspite of the fact that there were several infirmities in her testimony. In this connection reliance was placed on decision of the case reported at [PRECEDENT] in which it was held that evidence of a child aged about six years is to be approved with great caution. It was further submitted by the learned counsel for the appellants that as held in [PRECEDENT] testing of such child witness was necessary and it was unsafe to rely on uncorroborated testimony of such child witness. Reliance was also placed on another decision reported at [PRECEDENT] in which it was held that preliminary enquiry was needed, but it was also held therein that if it was not done, then inference is that the Court was satisfied as to the capacity of the witness to testify. On this point, the learned Additional P. P. pointed out that [SECTION] of the [ACT] provides 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 those questions, by tender years " He also relied on a decision reported at [PRECEDENT] where it was held that such understanding has to be gathered from answers given by child witness.
7. The legal position is that when a child is a witness, the first step for the Judge is to satisfy himself that the child is a competent witness within the meaning of [SECTION] of the [ACT] and competency of the child witness should be ascertained by putting a few questions in order to find out whether the witness is intelligent enough to understand what he had seen and afterwards to inform the Court thereof and understands the duty of speaking truth or not. The holding of preliminary enquiry is merely a rule of prudence and not a legal obligation upon the Judge, [PRECEDENT]. under [SECTION] of the [ACT], oath shall be administered to such witness only who understand the sanctity of oath. A witness may be a competent witness, though he may not understand the sanctity of oath and in such case [SECTION] of the [ACT] becomes applicable, in which the Court refrains from administering the oath to such witness.
8. Notwithstanding [SECTION] of the [ACT], evidence of a child witness is not inadmissible merely on the ground that no oath was administered. Here in this case, the trial Court appears to have administered oath of P.W. 1 as her deposition was recorded without deleting the printed words "taken on solemn affirmation" on the printed heading of her deposition. Thus, though no inquiry appears to have been made, it is to be gathered that the trial Court found the witness prudent enough to understand the questions and to answer them, though it was held in decision reported at [PRECEDENT] relied upon by the Additional P.P. that it was desirable that Judge/ Magistrate should record their opinion that the child witness understand the duty of speaking the truth and state why they think that.
9. In this case the appellant have been convicted on the evidence of a solitary child witness P.W.1. It has been held in a decision reported at [PRECEDENT] that "one of the test to judge the credibility of such solitary witness is the intrinsic quality of worth of his evidence, independent of other evidence and if such evidence measures up to the Court's satisfaction it can itself form the basis of conviction. It is only when such evidence does not pass muster that the Court seeks corroboration to draw its conclusion therefrom". Regarding the evidence of child witness it has been held in the case of [PRECEDENT] that testimony of such witness must be evaluated more carefully and with greater circumspection and should find some corroboration. Similar view was taken in the case of [PRECEDENT] where it was held that corroboration is necessary as child witness is prone to tutoring and hence Court should look for corroboration. In case of single teenager witness in decision reported at [CASE NUMBER] it was held that her evidence has to be scrutinised with care and caution. The rule of corroboration of the statement of a child witness is not a rule of practice, but it is rather a rule of prudence. If the statement of P.W. 1 the solitary child witness of this case inspire confidence that there was unlikelihood of tutoring, even in absence of corroborative evidence, she can be relied upon. With these guidelines in mind, we proceed further to scrutinise the evidence of P.W. 1.
10. The fardbeyan of this case is based on hearsay, based on the information received by P.W. 4 from P.W. 1. In the fardbeyan only two assailants were named but in her evidence P.W. 1 added the name of one [ENTITY] as third assailant, who was given benefit of doubt by the trial Court. It was pointed out by the learned counsel for the appellants that P.W. 1 in her evidence did not state as to which assailants were armed with which weapon and the witness was even unable to distinguish between "lying" and "death". P.W. 1 used the expression "Ma Sut Gai" which apparently means that her mother had died and had lain down. It was also pointed out that her statement that "[ENTITY] (P.W. 4) had come to her mother on that date" also does not find corroboration from P.W. 4 who claimed to have gone one day earlier to her sister. It was also pointed out that P.W. 1 stated that passers-by, had taken her and her weeping sister in their laps but she stated not to have disclosed about her mother's murder or also not the names of the assailants, which does not appear to be natural conduct.
11. Regarding location of the dead body of her mother, in her statement she stated that she (mother) was killed in ploughed land but the inquest report (Ext. 8/1) indicated that the dead body was found in a Parti land adjacent north of the road. Regarding other infirmities in her evidence it was pointed out by the learned counsel for the appellants that P.W. 1 claimed that at the time of assault of her mother, her sister [ENTITY] was on her shoulder and that injuries were inflicted in standing position. As no injury was inflicted to [ENTITY], such injuries as found on the person of [ENTITY], were not possible to be inflicted in standing position. It was stressed on behalf of the appellants that in paragraph 10 of her evidence P.W. 1 has given self contradictory statement regarding identification of the assailants. Firstly she answered that she knew the three assailants on the date of occurrence and when the Court clarified the question, she changed her answer and stated that she knew them from before, but again on further Court's question she clarified that she knew the accused persons on the date when her mother was killed. Such type of answer regarding identification of the assailants indicated traces of tutoring and conviction of the appellants based on such identification cannot be sustained. In case of only two discrepancies regarding the name of assailants and regarding injuries on the deceased in decision reported at [PRECEDENT] (supra) the Court held the evidence of such witness not, reliable. Such different type of answers given by P.W. 1 regarding identification of the assailants clearly impairs the value of her evidence and casts a serious doubt on her veracity. Her statement implicating [ENTITY] as an assailants, not named by P.W. 1 in his fardbeyan, was not found reliable by the trial Court, The pertinent question is that if the evidence of P.W. 1 regarding [ENTITY] could not be believed, why her evidence regarding both these appellants should be believed.
12. After giving our anxious consideration to the facts and circumstances of the case and considering the judgment of the trial Court and evidence adduced in the case and from critical analysis of the materials on record, we find and hold that prosecution fails to prove its case beyond reasonable doubts and, accordingly, this appeal is allowed and conviction and sentence passed against both these appellants are set aside, The appellants are released from the liabilities of their bail bonds.