1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT Kaliya vs. State of Rajasthan D.B.Cri. (Jail) Appeal No.306/2006 Against the judgment dated 17.03.2006 passed by the Addl. Sessions Judge (Fast Track), Banswara in Sessions Case No.09/2006. ....... Date of Judgment: 14th January, 2008 PRESENT HON'BLE MR.JUSTICE BHAGWATI PRASAD HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.D.S.Thind for the appellant. Mr.JPS.Choudhary, Public Prosecutor. BY THE COURT :(PER HON.MR.BHAGWATI PRASAD,J.)- The present appeal has been filed by the accused appellant Kaliya against the decision of Addl.Sessions Judge, Fast Track , Banswara in Sessions Case No.09/2006 dated 17th March 2006. The prosecution was initiated on the basis of a first 2 information report lodged by Dinesh Charpota at Police Station Anandpuri on 05.12.05 at abut 10.00 AM. According to the oral report it was reported by Dineshchandra that at about 07.00PM he, his mother Resham and father Kaliya were at their house, at that time his father was running away from the house. His mother started to prohibit his father from running away , on which he got enraged and he took up an axe and ran towards his mother to kill her. His mother started running and when she reached the road side his father also reached near her and hit her by the axe. She fell down. He reached towards his mother to protect her. His father made his escape good and he then went to the house of his uncle Jokha . He informed him about the incident. On the basis of this information, the first information report was registered and the investigation started. After usual investigation, charge sheet was filed against accused Kaliya under section 302 IPC. The committal court committed the case and the case was ultimately made over to the trial court for trial. The trial court framed charges under section 302 IPC against accused which was denied by the accused and he claimed trial. 3 At the trial 15 witnesses were examined and 28 exhibits were tendered in evidence. No defence was examined. At the trial PW/1 Dineshchandra stated that at the time when the incident occurred he was not at his home. He was at the house of his uncle. PW/1 Dineshchandra is a child witness who admitted that he has given the statement as asked to him by his maternal uncle. Other witnesses, most of them have turned hostile. The trial court, after considering the testimony of the witnesses PW/1 Dineshchandra , PW/5 Smt.Lalita, PW/6 Joran and PW/7 Daramchand, came to the conclusion that it was accused who had caused the injuries to the deceased. The learned counsel for the appellant, assailing the findings, stated that as far as PW/1 Dineshchandra is concerned, he is a child witness. The testimony of a child witness should be scrutinised with caution and care. More particularly, when the witness himself admits tutoring by his maternal uncle. The testimony of this witness is of no value as he admits that at the time when the incident occurred, he was not at home . He claims that he had gone to the house of his uncle. If this witness was not at home and had gone to the house of his uncle, then he is not an eye witness, and if this witness was not an eye witness, then the whole 4 edifice which has been created by the prosecution , with the aid of first information falls to the ground. Except witness PW/1 Dineshchandra, the other witnesses relied on by the trial court is PW/5 Smt.Lalita. She is the wife of the uncle of PW/1 Dineshchandra. She has turned hostile and in her statement there is hardly any indication of the fact that PW/1 Dineshchandra had seen the incident. The testimony of PW/6 Joran also falls in the same category, wherein he states that Dineshchandra came to him and informed him that his mother is dead. Nothing substantial was stated by this witness also, therefore, the testimony of PW/5 Smt. Lalita is hardly of any consequence. Then remains the testimony of PW/7 Daramchand, who states that Dineshchandra came to his house and informed to his father that his mother has been killed by his father. Such statement was made by Dineshchandra to his father Jokha. Jokha has not been examined and in that background, the testimony of this witness, loses importance because he was only a bystander when Dineshchandrra informed Jokha. Nothing was stated to this witness Daramchand who only heard some conversation . Having criticised PW/5 Lalita, PW/6 Joran and PW/7 5 Daramchand, the learned counsel for the appellant, further stated that if PW/1 Dineshchandra was not at the scene of the occurrence and was at the house of his ucnle, then whatever he has stated to PW/7 Daramchand, loses all credibility, because he was not himself an eye witness. He was not at home when the occurrence had taken place. Apart from these witnesses, there is no other witness who support the prosecution case, therefore, the prosecution case deserves to be discarded. The learned counsel further stated that there are certain recoveries said to have been made at the instance of the accused , which have been found blood stained. But when recoveries were first sent, they were objected to by the FSL. The witnesses have not stated on what count those objections were raised and how those objection were met. In any case, the recoveries could corroborate some substantial evidence which is not available on record and, therefore, they also cannot be used for any material purpose. In this background, the learned counsel for the appellant canvased that the appeal deserves to be accepted and the accused deserves to be enlarged and acquitted of the charges framed against him. Per contra, the learned Public Prosecutor submitted that 6 the incident had taken place near the house. The inmates of the house is supposed to be in the house, PW/1 Dineshchandra cannot be accepted not be at his house. His presence is natural and normal. No doubt PW/5 Smt.Lalita and PW/6 Joran have turned hostile but nonetheless PW/7 Daramchand states that his father was informed by PW/1 Dineshchandra that his father has killed his mother and this corroboration is available on record of the testimony of PW/1Dineshchandra. Therefore, in this background the conviction as recorded by the trial court, is liable to be sustained. We have heard the learned counsel and have given our thoughtful consideration to the material available on record. The most important aspect of the case is the testimony of PW/1 Dineshchandra. In his statement he has stated that he has seen his father causing injuries to his mother. This witness, in his cross examination, has admitted that he was not present when the incident had occurred. This testimony is a piece of evidence which can be said to be doubtful. If this witness was not present at his home, then it cannot be accepted that he could witness the occurrence. And if he could not witness the occurrence, whatever he has stated to the father of PW/7 Daramchand becomes a doubtful proposition. Further, this 7 witness has accepted tutoring by his maternal uncle. This witness being a child witness has admitted tutoring and has also admitted in his cross examination that he was not at his home when the incident occurred. Then whatever he has stated in his testimony in the court , the entire testimony becomes the subject matter of doubt. Unless strong corroboration is available from the evidence 'aliunde'. The other evidence on record which has been relied on by the trial court is testimony of PW/5 Smt.Lalita, PW/6 Joran and PW/7 Daramchand PW/5 Smt. Lalita and PW/6 Joran have turned hostile. PW/7 Daramchand is hearsay of PW/1 Dineshchandra. Here, testimony of PW/1 Dineshchandra by itself is a doubtful proposition. Testimony of PW/7 Daramchand also falls in the same category. This leaves us with the recoveries. The recoveries by themselves are hardly a piece of evidence, which can be used for sustaining the conviction. In the instant case when the recovered articles were taken to the FSL, they were not accepted in the first instance and they were objected to. What was the objection has not been stated by the Investigating Officer or his witnesses. In that background recoveries also are not available for sustaining the conviction. In view of the aforesaid discussion, there is hardly any evidence to sustain the conviction. We find that there is no evidence on record worth 8 reliance. The trial court has wrongly recorded the conviction against the accused appellant. In the result we accept the appeal. The accused appellant Kaliya is acquitted of the charges levelled against him. His conviction under Section 302 IPC is set aside. Consequently, his sentence is also set aside. He is behind the bars, he be released forthwith, if not required in any other case. (BHANWAROO KHAN), J. (BHAGWATI PRASAD), J. L.George