1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Criminal Appeal No.373/2001 Nandlal S/O Nanuram Bhil, Aged - 35 years, R/O - Nawli, P.S. Gandhisagar, District - Mandsaur (M.P.) .... Appellant Vs. State of M.P. Through P.S. Bhanpura. .... Respondent ------------------------------------------------------------------------------- Shri Lokesh Bhatnagar, Learned counsel for the appellant. Shri Girish Desai, learned Dy. A.G. for the respondent/ State. ------------------------------------------------------------------------------- Whether approved for reporting:- JUDGMENT (Delivered on 15/2/2011) Per Prakash Shrivastava, J :- 1/ This appeal is directed against the judgment dated 19.1.2001 passed by the Court of Additional Sessions Judge, Bhanpura, District - Mandsaur (M.P.) in S.T. No.187/2000, convicting the appellant for offence under Section 302 of the 2 Indian Penal Code (for short “the IPC”) and awarding life sentence with fine of Rs.5,000/- and in default two year's simple imprisonment. 2/ The prosecution story as unfolded during the trial was that Deceased Sohan Bai, wife of the appellant, was turned out from his house by the appellant about 10-15 days prior to the incident because appellant was having relation with another woman. Sohan Bai had started living with her parents and brothers. On 28.6.2000 at 9:00 a.m. Sohan Bai along with her mother Rodi Bai, niece Durgi Bai and daughter Kamli Bai had gone to the forest to bring wood. When Sohan Bai was coming back from the forest after cutting the wood along with Kamli Bai and Durgi Bai, followed by Rodi Bai, the appellant met her on the way. He was having an axe and he gave the blow from the axe on the head and neck of Sohan Bai, who died on the spot. The incident was narrated by Hira Bai Bhil to Jagannath (PW-5), brother of the deceased, who lodged the FIR in the police station Bhanpura, district Mandsaur. Police after investigation filed Challan against the appellant, who abjured his guilt and the trial took place resulting into the conviction of the appellant for offence under Section 302 IPC and sentence, as mentioned above. 3/ Learned counsel appearing for the appellant submitted that prosecution witnesses have not supported the case of the prosecution and the offence alleged against the appellant has not been proved beyond reasonable doubt. He further submitted that the conviction is based upon the testimony of the 3 solitary child witness, which is not trustworthy and could not have been relied upon without corroboration. He submitted that the conviction of the appellant for offence under Section 302 IPC is not sustainable. 4/ Learned counsel appearing for the respondent/State submitted that no error has been committed by the Sessions Court in convicting the appellant since, from the evidence on record the guilt of the appellant is duly proved. He submitted that the offence under Section 302 IPC against the appellant is proved from the version given by the eyewitnesses. 5/ Having heard the learned counsel appearing for the parties and on perusal of the record of the case, we find that the prosecution has tried to establish its case on the basis of the three alleged eyewitnesses of the incident namely PW-9 Rodi Bai, PW-11 Durgi Bai and PW-14 Kamli Bai. The FIR of the alleged incident was lodged by Jagannath (PW-5), brother of the deceased, who was not an eyewitness of the incident and the FIR (Ex.P/3) reflects that he was informed about the incident by Hira Bai Bhil, but Hira Bai Bhil (PW-18) has not supported the prosecution case. 6/ Out of three eyewitnesses of the incident namely Rodi Bai, Kamli Bai and Durgi Bai, whose names have been mentioned in the FIR, the two alleged eyewitnesses i.e. PW-9 Rodi Bai, mother of the deceased and PW-14 Kamli Bai, daughter of the deceased, have not supported the prosecution case. PW9 Rodi Bai has deposed that she had stopped on the way to drink water and was informed by Rami Bai that Sohan Bai 4 was murdered. PW-14 Kamli Bai, who is the daughter of the deceased, has also stated that she was left behind in the forest and had seen the dead body of her mother. She has categorically stated that her father had not killed her mother and the relation of her father with the mother were good. PW-9 Rodi Bai and PW-14 Kamli Bai though had not supported the prosecution case but they were not declared hostile. These two witnesses had not seen the incident. 7/ This brings us to the third alleged eyewitness namely PW-11 Durgi Bai, who is a child witness aged between 9-10 years at the time of the incident. The trial Court has based the conviction of the appellant solely upon the version given by this witness, therefore, the crucial question which arise for consideration of this Court is as to whether her statement is trustworthy and on the basis of the testimony of this solitary child witness, the appellant can be convicted for the alleged offence? 8/ Section 118 of the Evidence Act deals with the persons competent to testify but it does not completely exclude any class of witnesses from giving evidence before the Court. It provides that if in the Court's consideration any witness, because of tender or extreme old age or disease etc., is prevented from understanding the questions put to him or from giving rational answers to those questions, then such a witness would not be competent to testify, but a witness of tender age per se is not excluded from giving evidence before the court. A witness of tender age (child) is competent to testify subject to the fulfillment of the conditions given in the Section i.e. if he/she has intellectual 5 capacity to under stand questions and to give rational answers thereto. The preconditions for relying upon a child witness have been mentioned in Section 118 of the Evidence Act apparently for the reason that the child witnesses are amenable to tutoring and are pliable and liable to be influenced easily. Thus testimony of a child witness requires close scrutiny by the Court. The credibility of the child witness and his/her evidence depends upon the quality of her testimony and its reliability in the circumstances of the case. 9/ The Supreme Court in the matter of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat reported in 2004(1) SCC 64 referring to the judgment in the matter of Wheeler V. United States [159 US 523] held that :- “Pivotal submission of the appellant is regarding acceptability of PW-11's evidence. The age of the witness during examination was taken to be about 10 years. The Indian Evidence Act, 1872 (in short “the Evidence Act”) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 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. This position was concisely stated by Brewer, J. Wheeler V. United States. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such 6 evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.” (See Suryanarayana V. State of Karnataka [2001(9) SCC 129) 10/ In the case in hand we are dealing with such a child witness on whose solitary testimony, uncorroborated with any other evidence, the conviction of the appellant is based. No doubt it is true that if on close scrutiny a child witness is found reliable and credible, then the conviction can be based upon the evidence of such a child witness, but at the same time it is prudent to examine if the testimony of a child witness is corroborated with other evidence, before basing the conviction on such a testimony. 11/ The Supreme Court in the matter of Suryanarayana Vs. State of Karnataka reported in 2001(9) SCC 129 referring to the earlier judgments on the point has reiterated that the evidence of the child witness must find adequate corroboration before placing reliance, by holding that :- “(6) This Court in Panchhi v. State of U.P. [1998(7) SCC 177] held that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law (vide Prakash V. State of M.P. [1992(4) SCC 225], Baby Kandayanathil V. State of Kerala [1993 supp (3) SCC 667], Raja Ram Yadav V. State of 7 Bihar [1996(9) SCC 287], Dattu Ramarao Sakhare V. State of Maharashtra [1997(5) SCC 341). (7) To the same effect is the judgment in State of U.P. V. Ashok Dixit [2000(3) SCC 70].” 12/ In the present case though the trial Court has placed reliance upon the testimony of the child witness but this Court exercising the appellate jurisdiction while scrutinizing the evidence, can look into the credibility of a child witness and take a different view than the one taken by the trial Court. The said position is settled by the Supreme Court in the matter of Ratansinh (supra) by holding that :- “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.” 13/ The testimony of solitary child witness PW-11 Durgi 8 Bai needs scrutiny keeping in view the principles of law stated above. On the close examination of the statement of PW-11 Durgi Bai, we find that she has given parrot like version. In the cross-examination she has repeatedly suo motu stated that the appellant had committed the offence. In her examination-in-chief and in the cross-examination, there is contradiction in respect of the fact as to whether accused had accompanied them to the forest for cutting the wood. In the cross-examination she has stated that when she along with others was returning from the forest after cutting the wood, the accused had come from the opposite direction from the village, but a different version has been given by her in her examination-in-chief as well as by PW-5 Jagannath and PW-12 Nanda, who have stated that the accused had gone to the forest along with the deceased and other persons. 14/ The version given by the solitary eyewitness PW-11 Durgi Bai is not corroborated by any other evidence on record. The other two alleged eyewitnesses i.e. the daughter of the appellant and mother of the deceased have not supported the prosecution case. Considering the nature of the testimony of PW-11 Durgi Bai, it would not be safe to convict the appellant on the basis of her uncorroborated statement from any other evidence. In the opinion of this Court the deposition of the child witness PW-11 Durgi Bai does not inspire confidence and the trial Court has committed an error in basing the conviction of the appellant on her statement alone. It is also worth noting that PW-12 Nanda, who is the father of the deceased, has been cross examined on the issue of false implication of the accused since 9 the Nanda and his family members were interested in grabbing the land of the accused. 15/ In view of the aforesaid analysis, we are of the considered opinion that the conviction of the appellant for the offence under Section 302 IPC cannot be sustained and is hereby set aside. 16/ Accordingly the appeal is allowed. The appellant is in jail, learned trial Court is directed to release him forthwith if not required in connection with any other criminal case. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-