CR.A/480/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 480 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= = STATE OF GUJARAT - Appellant Versus BABUBHAI B NAIK – Respondent ========================================================= = Appearance : MR MAULIK NANAVATI ADDL PUBLIC PROSECUTOR for Appellant MS BHARTI H RANA for Respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/08/2008 CR.A/480/1987 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal has been filed by the State of Gujarat challenging the judgment and order dated 30.4.1987 passed by the learned Sessions Judge, Valsad at Navsari in Sessions Case No.44 of 1986, acquitting the present respondent- original accused for the offence punishable under Section 302 of the Indian Penal Code. 2. Accused Babubhai Naik was living with his wife Rami and children Vinod and Mina at village Kangvai, Taluka Chikhli. On 3.4.1986, at about 8.30 p.m., the accused is alleged to have picked up a quarrel with his wife and thereafter, given a blow with an iron rod on the head of Rami. As a result, Rami died instantaneously. The case of prosecution rested primarily on the evidence of witness Mina, a child of 5 years, who was present in the house when Babubhai hit Rami. To corroborate her evidence, the prosecution examined Namlabhai PW 6 , Gulabbhai PW 7, Dhanabhai PW 8, Amratbhai PW 9, Bhagubhai PW 10 and Vinod PW 5, who all arrived at the scene of offence shortly after. After trial, the learned Sessions Judge concluded that the prosecution has not been able to successfully established the guilt of the accused. He found that the evidence of witnesses examined by the prosecution does not appear to be truthful and in the absence of any cogent and credible evidence linking the accused with the crime, gave benefit of doubt to the accused. CR.A/480/1987 3/6 JUDGMENT 3. We have heard Mr. Maulik Nanavati, learned APP for the State and Ms Rana, learned advocate for the respondent. We have perused the judgment and gone through the entire record of the case. 4. Mr. Nanavati appearing for the State has vehemently argued that the trial Court was in error in rejecting the evidence of Minaben PW 4 and that a perusal of her deposition clearly shows that she not only understood the questions put to her but has answered them intelligently. He has further submitted that the trial Court was not right in rejecting the evidence of other witnesses examined by the prosecution. 5. On the other hand, Ms Rana has supported the judgment of the Trial Court and has submitted that no error has been committed by the learned Sessions Judge in acquitting the respondent. 6. We are broadly in agreement with the reasons given and the conclusion arrived at by the learned Sessions Judge. The prosecution has mainly relied on the evidence of Minaben PW 4, daughter of the accused, who is stated to have witnessed the incident. Minaben was of five years of age at the time of incident and the Trial Judge has observed that the child witness does not seem to be intelligent enough to give rational and proper answers to all the questions put to her. This finding has been recorded by the Trial Judge who had the opportunity of seeing the demeneour of the witness and CR.A/480/1987 4/6 JUDGMENT the said finding does not appear to be perverse. The possibility of a child witness being tutored or saying something more out of imagination than actual recapitulation of the events as they occurred, more particularly when the child is of such a tender age, cannot be ruled out. This however does not mean that the evidence of such child witness has to be rejected outright but as rightly observed by the learned Trial Judge has to be looked at with great caution. By itself the evidence of a child witness of such a tender age should ordinarily not be made the sole basis for convicting the accused and the Court should as a rule of Prudence look for other independent and cogent evidence to support the evidence of a child witness. In the present case, the other witnesses examined by the prosecution are not eye witnesses and concededly arrived at the scene after the occurrence. Their evidence does not help the prosecution as they have all admitted in their cross-examination that they gave statements to the police on being so instructed by the Police Patel PW 3. Therefore, the evidence of all these witnesses is not credible and safe and the accused cannot be convicted on the basis of such doctored evidence. Even otherwise, they are several glaring discrepancies in the evidence of these witnesses. To highlight, child Mina says that her mother was grinding spices and that food was cooking at the time when the accused assaulted his wife. The site panchnama does not disclose presence of any grinding stone or cooking utensils. On the contrary, all the vessels in the house are found to be properly placed on the selves. Also, CR.A/480/1987 5/6 JUDGMENT child Mina and Vinod PW 5 say that their mother was cooking in the kitchen and it is in the kitchen that the accused is stated to have given a blow to Rami. However, the other witnesses as well as the Panchnama mention about Rami lying in the room which is in front of the kitchen. 7. Thus, we find that the prosecution witnesses have themselves condemned the prosecuting agency by saying that they are giving evidence on the saying of the P.I. If the adult witnesses have admitted tutoring that it also should be the reason that the child could also be subjected to the same treatment. More particularly, when the circumstances indicated by the child are not available in investigation, then her version is not corroborated. When the investigation is admittedly guilty of inducing witnesses uncorroborated testing of a child witness have rightly been disbelieved by the trial Court. 8. For all these reasons, we are of the considered opinion that the reasons given by the learned Sessions Judge for acquitting the accused are cogent, proper and correct. No interference is called for in the State appeal and the same is accordingly dismissed. Bail bond stands cancelled. [BHAGWATI PRASAD, J.] [S.R.BRAHMBHATT, J.] CR.A/480/1987 6/6 JUDGMENT pallav