IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 903 of 2007 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 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 ?
Whether this case involves a substantial question of law as 4 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 ?
========================================== =============== UTTAMPRAKASH OMKARNATH SHUKLA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================== =============== Appearance :
THROUGH JAIL for Appellant(s) : 1,MR HARNISH V DARJI for Appellant(s) : 1, MR K.P. RAVAL, ADDL.PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================== =============== HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :13/07/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B. PARDIWALA) The present appeal is directed against the judgment and order dated 31st May, 2007, passed by the Presiding Officer, Fourth Fast Track Court, Surat, whereby the accused-appellant came to be convicted for the offence of murder punishable under Section 302 of IPC and was sentenced to undergo rigorous imprisonment for life with fine of Rs. 2,000/- and in default of payment of fine, further simple imprisonment of two months.
2. The case of the prosecution is that on 21st September, 2003, PW-2 Angad Dayashankar Tiwari lodged a First Information Report Exh.14 at Limbayat Police Station, Surat City, stating that he is residing past five years at the address shown in the FIR with his wife Suman and two daughters, namely - Vijaylaxmi, aged 7 years and Roshni, aged 3. At the time of lodging of the FIR, the wife of the first informant i.e. the deceased was pregnant. The first informant is engaged in the business of parcel packing and operates from the textile market. He had employed around 15 to 16 persons to help him in his work and one of them was one Uttam Shukla (the accused). All these persons stayed along with the first informant in his house. The food for all these persons was also being prepared at the residence of the first informant. The first room of the house in the front was being used by the first informant, his wife and two daughters, whereas the second room and the kitchen portion was being used by the labourers employed by the first informant, more particularly during monsoon. On 19th September, 2003 at around 6 to 7 in the evening, the first informant asked the accused to go in a tempo which was loaded with goods, at a place called DRT Transports, situated opposite Kamela Darwaja Vittal Dyeing. The tempo was being driven by one Pankaj Bihari. While on the way, the accused got down from the tempo and therefore, the driver Pankaj Bihari informed the first informant that Uttam Shukla got down from the tempo. At around 11.30 in the night, first informant met Uttam Shukla, the accused and rebuked him for getting down from the tempo, and also gave two to three slaps to Uttam Shukla. The first informant reprimanded Uttam Shukla because by his getting down from the tempo midway, there were chances of one of the parcels of the goods getting damaged or lost. Thereafter, the first informant and others came home including the accused and went to sleep. On 20th September, 2003, at around 1' O Clock in the afternoon, the first informant and others left for work. The first informant left on his motorcycle to reach the market. At around 6' O Clock in the evening, he was at New Textile Market and at that point of time, he received a phone call from Uttam Shukla saying that he wanted to go to his village and asked the first informant to settle the account with him and to pay the money. The first informant enquired with Uttam Shukla as to why all of a sudden he decided to go to the village, but Uttam Shukla gave no reply. The first informant told Uttam Shukla that at that time there was a boom in the business and as he was in need of more labourers, he should come back to work. The accused disconnected the telephone on being explained by the first informant. Thereafter, the first informant came to Ashoka Towers and there, he enquired with his other labourers about Uttam Shukla, and the first informant was told that Uttam Shukla left at around 5' O Clock in the evening and had not returned. Thereafter, on completion of work, the first informant and his staff reached home at around 2.30 in the early morning on 21st September, 2003. The first informant reached his home on his motorcycle, which was being driven by Ramgopal Shukla, one of the staff members. On reaching home, the first informant knocked the door but nobody opened. The first informant thought that his wife might have gone to sleep and thinking so, he asked Ramgopal Shukla to go to terrace and get down in the house from the rear door. Ramgopal Shukla on reaching the terrace shouted "Suman has been murdered !!". The first informant raised shouts and therefore, people from the neighbourhood gathered at the house of the first informant. Ramgopal Shukla managed to enter in the house from a rear door and on opening the house, the first informant found that his wife was lying in the kitchen in a pool of blood. The first informant saw that his wife had sustained serious injuries on the head and was dead. The first informant saw that one of the legs of the dinning table was broken and was lying on the ground. The first informant started crying. As the first informant started crying, the elder daughter of the first informant named Vijaylaxmi woke up. The first informant enquired with his elder daughter Vijaylaxmi as to what had happened, and in reply, Vijaylaxmi is said to have told the first informant that in the night Uttam Shukla came home, the deceased opened the door and thereafter, Uttam closed both the doors from inside and dragged her mother inside the house, and thereafter, she went to sleep. This is what was narrated by Vijaylaxmi to her father, the first informant. First informant found that the lock of one of the cupboards was open. He had no idea as to whether any valuables had been taken away from the cupboard or not. In the meantime, friends and relatives gathered at his house. One of his relatives named Chandraprakash Pande informed the first informant that at around 8' O Clock in the night, Uttam Shukla had met him and demanded Rs. 10/- from him for the purpose of rickshaw fare as he wanted to go to his village, and that Chandraprakash Pande had given Rs. 10/- to Uttam Shukla. On inquiry, the whereabouts of Uttam Shukla were not known, but the first informant learnt through his other staff members that Uttam Shukla had not come for work on that day after 5' O Clock in the evening. Thereafter, Police arrived on being informed by someone at the house of the first informant. The first informant stated in his FIR that it was Uttam Shukla who had committed the murder of his wife, as he was rebuked by him and was also slapped two to three times on account of negligence in work, and as a result of which, out of vengeance, Uttam Shukla assaulted his wife with one of the legs of the dinning table on her head causing her death.
3. On the strength of such First Information Report, the Police started investigation by sending the body of the deceased for postmortem. The postmortem report revealed the following external injuries:-
(1) Lacerated wound, transverse, present over forehead in midline, more on (R) side 4cm above, (R) eyebrow, 4.5 x 2 cm x scalp deep; skull bone exposed; margins irregular and contused.
(2) Lacerated wound present over (L) side of head, transverse, 9cm (L) of midline, 8cm above (L) ear, 3.5 x 1cm x skull bone deep; underlying bone fractured;
margins irregular and contused.
(3) Lacerated wound present over back of head in midline, transverse, 13 cm above C7 spine, 11 x 6cm x skull bone deep; margins irregular and contused; underlying bone fractured in to multiple pieces.
(4) Lacerated wound transverse present over back of head 0.5 cm above injury No.(3), 6 x 1 cm size, scalp deep, margins irregular and contused.
(5) Red - brown abrasion 0.3 x 0.2 cm size, present over front of (R) knee.
4. The internal injuries as revealed in the postmortem report are as under:-
(1) Palpable fracture of skull present corresponding to external injuries Nos. 2 and 3.
(2) Fissure fracture of (L) temporal bone present, 8 cm and 6 cm long; extending backwards upto fracture of occipital bone and downwards into middle cranial fossa, corresponding to external injury No.2.
(3) Commuted (multiple fragments) fracture of occipital bone present 9 x 5cm size, corresponding to external injury No.3, fracture extending downwards in to posterior cranial fossa; 7cm long. Meninges intact; diffuse subdural and sub area choroid h'age present all over brain surface; blood present in ventricles; brain congested; 1150gms.
Base of skull:
(1) Fracture of anterior cranial fossa present in midline, 4cm long, corresponding to external injury No.1,
(2) (L) middle cranial fossa fractrured upto midline, being extension of 6cm long fissure fracture of (L) temporal bone, 4.5cm in length.
The cause of death assigned was "shock due to intracranial haemorrhage".
5. Inquest panchnama Exh.21, panchnama of the clothes of the deceased, Exh.17 and panchnama of the scene of offence, Exh. 22 were drawn and thereafter the statements of the witnesses were recorded, which included the statement of 7 years old daughter of the deceased, Vijaylaxmi.
6. It appears that the whereabouts of the accused were not known for a period of almost two years. The Investigating Officer received an information from the State of Uttar Pradesh that the accused Uttam Shukla has been arrested by the Police of Uttar Pradesh in connection with an offence under the Arms Act and upon receipt of such information, by a transfer warrant, the accused was brought to Gujarat on 28th December, 2005. The arrest panchnama of the accused was drawn on 28th December, 2005 at Exh.19.
7. Chargesheet for the offence of murder was filed against the accused and accordingly, the accused was put to trial. The trial Court framed charge, Exh.3 on 11th December, 2006, to which the accused pleaded not guilty.
8. During the course of trial, prosecution examined the following witnesses:-
(1) PW-1, Dr. Swapnilkumar Sudhirkumar Agraval, Exh.10, the doctor who performed postmortem of the deceased;
(2) PW-2, Angad Dayashankar Tivari, Exh. 13, the first informant and husband of the deceased;
(3) PW-3, Krishnakant Laxmisagar Tivari, Exh. 16, panch witness;
(4) PW-4, Radheshyam Sachidanand, Exh. 18, panch witness;
(5) PW-5, Chhotelal Kerabhai Sharma, Exh. 20, panch witness;
(6) PW-6, Vajaylaxmi Angad Tivari, Exh. 24, solitary eye witness and 7 year old daughter of the deceased.
(7) PW-7, Ramgopal Rammurat Shukla, Exh. 25, witness.
(8) PW-8, Vaghjibhai Samabhai Rabari, Exh. 27, Police Inspector;
(9) PW-9, Dilipkumar Mohammadsinh Brahmbhatt, Exh.33, Police Inspector.
9. The prosecution also relied upon the following documentary evidence:-
(i) Postmortem report Exh.11;
(ii) First Information Report, Exh.14;
(iii) Panchnama of the clothes of the deceased, Exh.17;
(iv) Arrest panchnama of the accused, Exh. 19;
(v) Inquest panchnama, Exh. 21;
(vi) Panchnama of the scene of offence, Exh. 22;
(vii) Map of the scene of offence, Exh. 28;
(viii) FSL Report, Exh. 30;
(ix) Final report of FSL, Exh. 35.
10. Upon appreciation and evaluation of the entire evidence led during the course of trial by the prosecution as well as by the defence, the trial Court came to the conclusion that prosecution has been able to prove the case against the accused beyond reasonable doubt and accordingly, held him guilty for the offence of murder punishable under Section 302 of IPC and sentenced him to undergo life imprisonment with fine of Rs. 2,000/-. Hence this appeal.
11. The gist of the oral evidence:-
11.1 PW-1, Dr. Swapnilkumar Sudhirkumar Agraval, Exh.10. The prosecution examined PW-1, Exh.10 to prove the postmortem report. This witness performed the postmortem of the deadbody of the deceased and noted the injuries, both external and internal on the body of the deceased. This witness deposed that the approximate time of death of the deceased could be within two hours from the last meal and between 12 to 24 hours before the time of performing postmortem. This witness also deposed that the injuries were sufficient to cause death in the ordinary course of nature and were possible by hard and blunt object. This witness was shown articles 2, 3 and 11 i.e. leg of the dinning table with which the accused is alleged to have caused injury on the deceased and on being shown, this witness opined that the injuries sustained by the deceased were possible by articles 2, 3 and 11. This witness further deposed that the deceased was pregnant at the time of her death.
11.2 PW-2, Angad Dayashankar Tivari, Exh. 13. This witness is the husband of the deceased. This witness has proved the first information report. By and large he has deposed as per his version narrated in the first information report. Some significant features of this witness'es deposition deserves to be noted. This witness has deposed that when he reached home at around 2.30 in the night, he saw peeping through a door that both his daughters were fast asleep on a bed and his wife could not be seen. He therefore, asked Ramgopal, PW-7 to go on the terrace and enter the house from the rear door. On Ramgopal reaching on the terrace, shouted that "Suman has been murdered", and upon hearing the shouts, people from the neighbourhood also gathered at the house of the first informant. Ramgopal entered the house and open the door and at that point of time, this witness saw that his wife was lying in the kitchen in a pool of blood and one of the doors of a cupboard was also open. This witness has further deposed that at that point of time, he thought that a robber might have entered the house with the intention of committing robbery and after committing robbery, had killed his wife. He further deposed that thereafter, both his daughters woke up. The Police persuaded his elder daughter Vijaylaxmi to explain as to what had happened, and at that point of time, Vijaylaxmi is said to have informed that her mother was hit by Uttam with a stick. Thereafter, the Police enquired with this witness as to who was Uttam. In the cross- examination of this witness, he deposed that in his first information report he had not stated that on enquiring from his daughter Vijaylaxmi, she stated "Uttam came, mummy opened the door, thereafter, mummy was dragged by Uttam and she went to sleep". He has further deposed that since Uttam came back to him after a period of 4 years to repay the money which he had borrowed, he thought that Uttam was an honest man. In the morning hours, he had gone with Uttam to buy a gas cylinder and thereafter, Uttam was sent to work. According to this witness, thereafter he did not meet Uttam, but had an occasion to talk to Uttam on telephone. This witness has further deposed that his entire family was insured. He has also deposed that at the time of incident, his wife was pregnant, but he had not got done a sonography test. He denied to the suggestion that since he already had two daughters and the sonography test report revealed that the foetus was once again a female child, there was matrimonial dispute going on between the husband and the wife. He also denied to the suggestion put to him that he used to tell his wife that he was going to get married for the second time, so that he could get himself relieved from his wife. He also denied to the suggestion that for this particular reason he killed his wife and fabricated the story subsequently as narrated in the first information report. He also denied the suggestion that at the time of the incident, he was in need of money and his intention was to get the insurance money, if his wife died. He also denied the suggestion that on the death of Suman, he received an amount of Rs. 2,00,000/- from the Insurance Company and for this very purpose he committed the murder of his own wife. He further deposed that he knows Jagadambika Prasad, who is a Police Officer serving at Ayodhya, State of Uttar Pradesh. He denied the suggestion that it was said Jagadambika Prasad who gave him the idea of getting himself clean from the accusation of murder and had asked this witness to give the name of the accused herein as the culprit. He further deposed that elder daughter Vijaylaxmi is residing with him at Surat and the younger daughter is residing at his native. He further denied the suggestion that he committed the murder of his wife in the greed of having a son and also to get the money from the insurance Policy of his wife. He denied the suggestion that he had falsely accused an innocent person having committed the murder of his wife.
11.3 PW-3, Krishnakant Laxmisagar Tivari, Exh. 16. This witness is a panch witness. Nothing turns around from the evidence of this panch witness.
11.4 PW-4, Radheshyam Sachidanand, Exh. 18. This witness is a panch witness of the panchnama of the arrest of the accused. Nothing turns around from the evidence of this witness also.
11.5 PW-5, Chhotelal Kerabhai Sharma, Exh. 20. This witness is a panch witness of the scene of offence panchnama. He has deposed that two pieces of wood were lying in the room stained with blood. There is a courtyard behind the house and in the courtyard also there were drops of blood.
11.6 PW-6, Vajaylaxmi Angad Tivari, Exh. 24. This witness is the main witness on whose oral evidence the trial Court has convicted the accused. She is the elder daughter of the first informant. This witness is a child witness and at the time of incident, she was aged about 7 and at the time of giving her deposition, she was aged about 10. She deposed that she was studying in a school named Rameshwar Vidhyalay. When the incident occurred, she had gone to the school at around 12' O Clock in the after noon and returned home at around 5' O Clock. At the time of incident, she was in the kitchen and Uttam was also there in the kitchen. She deposed that at that point of time, her mother gave food to Uttam. Uttam after having his food, washed the plate and thereafter dragged her mother inside. She deposed that thereafter with a wood, Uttam inflicted three blows on the head of her mother and also inflicted a blow in the stomach. She deposed that at that point of time Uttam told her that she must keep quiet, otherwise she would also be killed. She deposed that she witnessed the incident. She also deposed that Uttam told her to go to sleep, otherwise she would also be killed and therefore, she came in the front room and went to sleep and thereafter her mother died. She deposed that her father lodged a report and in this connection Police had enquired with her. She identified the accused sitting in the Court room to be Uttam. In her cross-examination, she deposed that she was studying in Standard IV at Rameshwar Vidhyalay. She does not know the name of her teacher and she does not know the name of the Principal of the school. She used to complete her home work after returning from the school with the help of her mother, and at times after completing the homework she used to go out for play. She deposed that it is true that while playing some children may fall down or may even hit and it is also true that mummy and papa is being informed in this regard. At times she visited the house of her neighbours and one of them was Patel uncle and Patel aunty. If at any time some one would hit her, then she would go and complain to Patel uncle and Patel aunty. She deposed that at present she is residing with her father, her new mother (stepmother), younger brother (son through second wife) and grandmother. Her younger sister is at the village. She deposed that at the time of incident, there were around 20-21 persons residing at her house. They were all labourers engaged by her father. She deposed that many of them left the work and if any old worker returns, she would not be able to identify that person. She deposed that she had seen Uttam after a long time. The name of her new mother is Geeta. She denied the suggestion that quarrel ensued between her father and the mother. She had come to the Court with her father. She denied the suggestion that she had been tutored by her father and the Advocate to depose in a particular manner. She also deposed that the incident which she had witnessed was narrated before the Police. She deposed that when she came with her father, she was taken to an Advocate. She denied to the suggestion that at that point of time, discussion had taken place between her father and the Advocate as regards the conduct of the trial. She denied the suggestion that her father had told her how to depose before the Court. She denied the suggestion that her father had told her to depose as per his say, otherwise he would land up in difficulty. She also denied the suggestion that she was deposing falsely on oath. She admitted that on the date of the incident, it was a Saturday. On Saturday she use to go to school at 12' O Clock and returned home at 3'O Clock. She deposed that she goes to sleep by 10' O Clock in the night. On Saturday after returning from school, she would have her food, complete her lessons and go to sleep. She further deposed that she goes to sleep by 7.00 or 8.00' O Clock. She deposed that it is not true that during that time who came and who left the house was not known to her.
11.7 PW-7, Ramgopal Rammurat Shukla, Exh. 25. This witness was working with the first informant. He and Angad, the first informant, reached home at around 2.30 in the night. The front door of the house was knocked, but as no one opened the door, first informant asked him to go on the terrace and get down in the house and accordingly, he reached at the top of the house from where he saw that the deadbody of Suman was lying in the kitchen. He shouted and called Angad. He entered the house from the terrace and opened the door. Many people from the neighbourhood gathered. In the front room, two daughters of Angad were sleeping, one was Vijaylaxmi and the other was the younger one. Thereafter Police was informed. One cupboard was open. At that point of time, Vijaylaxmi informed that Uttam Shukla dragged deceased inside the house, closed the door and thereafter killed her. In the cross-examination this witness deposed that past 3 years he had been working with Angad and they worked up to 2 to 3'O Clock in the night. On the date of the incident, Angad met him at around 5' O Clock in the evening. He deposed that along with other workers, he was also one of the old workers at the place of Angad. Angad also happens to be a relative of this witness and therefore, he is a man of confidence of Angad. He has further deposed that it is not true that elder daughter of Angad informed about the incident and thereafter, Angad told him as to how the incident occurred. Police had enquired from the daughter of Angad. He admitted that he had not stated in his Police statement that "on seeing the deadbody of Suman, Angad started crying loudly as a result of which his elder daughter Vijaylaxmi woke up and informed that in the night Uttam Shukla had come, dragged her mother inside, closed the door and thereafter she went to sleep."
11.8 PW-8, Vaghjibhai Samabhai Rabari, Exh. 27. This witness is the Investigating Officer. This witness has deposed that from 14th August, 2003 to 2nd November, 2003, he was serving as Police Inspector of Limbayat Police Station, Surat. He recorded the first information report, Exh. 14 and thereafter he recorded the statement of Vijaylaxmi i.e. the daughter of the first informant and other witnesses. He also deposed that he sent a team of Police Officers in search of the accused, the panchnamas were drawn and other legal formalities were completed. In his cross-examination, he deposed that he reached at the house of the first informant at around 4 ' O Clock in the early morning. He was informed about the incident by PSO. He also deposed that he recorded the statement of Vijaylaxmi at the spot. He recorded the statement only once and that too in a question answer form. He deposed that the FIR was dated 21st September, 2003, but the same was forwarded to the Court of Judicial Magistrate on 23rd of September, 2003. He could not explain as to why there was a delay of more than 24 hours in forwarding the FIR to the concerned Court. He deposed that it was true that the name of the accused was disclosed immediately and a team of Police Officers was sent to public places like Railway Station, Bus Station etc. in search of the accused, however, no statements have been recorded of any person in this regard.
He has also deposed that if the accused is a resident of another State, then he should inform about the same to the concerned State, but the same was not informed. In the FIR there is a reference of Chandraprakash Pande, whose statement had been recorded by this witness. Thereafter, the contradictions in the form of omissions were proved by putting the same before this witness. This witness admitted that it is true that the first informant has not stated in his FIR that the first informant had gone along with Uttam and his daughter to buy a gas cylinder after the other workers left for the work. This witness also deposed that it is true that the first informant did not state in his FIR that Vijaylaxmi informed the first informant after waking up and after being explained by the Police that her mother was assaulted by Uttam. He also deposed that it is true that Vijaylaxmi had not stated in her Police statement that at the time of incident, she had gone to the school in the morning at 12' O Clock and returned home at 5' O Clock in the evening and that at the time of incident she was in the kitchen and Uttam was also in kitchen. He also deposed that Vijaylaxmi had not stated in her Police statement that at that time mother served food to Uttam and Uttam, after having his food washed the plate and inflicted three blows on the head of her mother with a stick and also in the stomach, and further had told her to keep quiet otherwise she would also be killed. He also deposed that Vijaylaxmi had not stated in her Police statement that "I had witnessed the incident, Uttam asked me to go to sleep otherwise he would kill me, and thereafter I came in the front room and went to sleep, my mother died and my father gave complaint." He deposed that he did not carry out the investigation considering that the first informant may also be an accused involved in the crime. He denied the suggestion that a false case has been registered against the accused.
12. Contentions on behalf of the accused-appellant:
12.1 Mr. Harnish Darji, learned Advocate appearing for the accused vehemently submitted that the trial Court committed a serious error in holding the accused guilty of the offence of murder by solely relying upon the evidence of a solitary eye witness, and that too a seven year old child witness. He submitted that the trial Court ought to have appreciated an important question of law that though the conviction can be based on the evidence of a solitary eye witness, may be a child witness, but evidence of such a witness must be wholly reliable. Mr. Darji submitted that taking into consideration the evidence of PW-6, Vijaylaxmi Exh.24, it cannot be said that this witness is a wholly reliable witness as during the course of deposition of PW-6, Vijaylaxmi, the entire version has been changed making her evidence susceptible to the complaint, that she was tutored to depose in a particular manner.
12.2 Mr. Darji further submitted that the entire genesis of the prosecution case is doubtful and the prosecution has tried to suppress the true origin of the occurrence. Mr. Darji submitted that the accused has been made a scapegoat and taking advantage of the fact that on that particular day accused-appellant left for his village, the entire story came to be concocted alleging that the accused after committing murder absconded and was arrested only after a period of 3 years. Mr. Darji further submitted that it is the first informant who is responsible for the death of his wife. The first informant, at the time of incident, had two daughters. The deceased was carrying a pregnancy of around 8 months and the sonography test revealed that the foetus was a female child. The first informant was very anxious to have a son and at any rate was not ready to accept that the third child would also be a female. It is this greed which led the first informant to somehow get rid of his wife i.e. the deceased. Mr. Darji submitted that his contention is further substantiated by the fact that the first informant married for the second time and has a son in the wedlock with his second wife. Mr. Darji further submitted that the entire family was insured and he also received a some of around Rs. 2 lac from the Insurance company on the death of the deceased. Mr. Darji further submitted that the entire prosecution case is unpalatable. According to Mr. Darji, ordinarily it is not possible to break the legs of a dinning table so easily and after breaking inflict the log of wood in the form of one of the legs of the dinning table on the deceased. Mr. Darji submitted that the conduct of Vijaylaxmi is very very unnatural. Even if Vijaylaxmi was just 7 year old at the time of incident, she would not at least go to sleep after witnessing such a brutal murder of her own mother. The explanation of Vijaylaxmi in her deposition that she went to sleep because she was threatened by Uttam also appears to be a big improvement as nothing has been stated by Vijaylaxmi in this regard before the Police at the time of recording of her statement.
12.3 Mr. Darji further submitted that the evidence of the first informant is altogether different. The evidence of the first informant is that in the early morning when both her daughters woke up, he enquired with them as to what had happened and at that point of time, Vijaylaxmi stated that Uttam was the assailant, whereas the FIR had been recorded early in the morning at around 4' O Clock, already naming Uttam as the assailant. Mr. Darji submitted that at any rate, the evidence of the solitary eye witness cannot be termed as wholly reliable and in absence of corroboration in material particulars, the trial Court ought not to have based conviction. Mr. Darji submitted that the trial Court also fell in error while taking into consideration the circumstance of absconding of the accused and being not available for a period of almost 3 years. According to Mr. Darji, the accused was arrested at Uttar Pradesh in connection with an offence under the Arms Act and from there, all of a sudden he was brought to Gujarat. According to Mr. Darji, this was the brain child of Jagadambika Prasad, who is a Police Officer at Ayodhya, U.P. Mr. Darji therefore, vehemently urged to allow the appeal by quashing and setting aside the judgment and order of conviction.
12.4 Mr. Darji, learned counsel appearing for the accused-appellant strenuously submitted that in the present case, though the FIR is dated 21st September, 2003, but the same was forwarded to the Court of learned Judicial Magistrate, Surat only on 23rd September, 2003. According to Mr. Darji, this delay would be fatal to the case of the prosecution, as PW-8 Vaghjibhai Samabhai Rabari, the Investigating Officer has not been able to explain as to why the First Information Report was not forwarded to the Court of Judicial Magistrate within 24 hours, as required under the Criminal Procedure Code.
13. On the other hand, Mr. K.P. Raval, learned Additional Public Prosecutor appearing for the State while defending the judgment of the trial Court vehemently submitted that the trial Court has committed no error in relying upon the evidence of the solitary eye witness PW-6, Vijaylaxmi, Exh.24. Mr. Raval submitted that there was no reason for a girl aged around seven to falsely disclose the name of the accused. Mr. Raval submitted that though the Police statement of PW-6 may not be containing details about the occurrence of the incident, still PW-6 in her deposition has explained as to what had exactly happened on the date of the incident. Mr. Raval submitted that there was a strong motive for the accused to commit crime as on the previous day, he was rebuked by the first informant and was also slapped 2 to 3 times. According to Mr. Raval, on the date of the incident in the evening hours, the accused had called up the first informant on his mobile and had also asked for money as he wanted to go back to his village; however, since the first informant did not give him any money, this added more to the anger of the accused. Mr. Raval submitted that a child witness's testimony is admissible regardless of the fact that he or she did not take oath. He further submitted that the Evidence Act does not mandate a minimum age for a witness to be competent. The search for corroboration is based on a rule of prudence and is not a legal necessity because it is felt and observed that children are more susceptible to tutoring. Mr. Raval submitted that the trial Court has considered all relevant aspects of the matter and upon appreciation of the entire evidence on record, has rightly reached to the conclusion that the accused was guilty of the offence of murder. Mr. Raval submitted that a well reasoned judgment of the trial Court may not be disturbed. He therefore urged to dismiss the appeal.
14. Analysis:
Upon reappreciation and reevaluation of the evidence on record, what we find is that the entire case of the prosecution is based on the evidence of a solitary child witness, aged around 7 at the time of the incident. The evidence of child witness cannot be rejected perse, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. If a child witness is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. The competence of a child witness is tested on the basis of an old Latin maxim "Varitatem Dicere A corruption of Viordire", which means that examination of a witness is a series of questions by the Court usually in the nature of an examination as to his competence to give evidence in some other collateral matter prior to his examination-in-chief.
15. Before we undertake the exercise of scrutinizing the evidence of PW-6 Vijaylaxmi so as to satisfy ourselves as to whether she stood the test of cross-examination and can be termed as a wholly reliable witness, we would like to consider some case law on the principle of appreciation of evidence of a child witness.
16. The first of its kind is the judgment of the Supreme Court in the case of Vadivelu Thevar Vs. State of Madras, reported in AIR 1957 SC 614(1). The Supreme Court made the following observations in paragraphs 11 and 12:-
"11. ... .... Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified in to three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
17. In Kartik Malhar V. State of Bihar, reported in [1996] 1 SCC 614, the Supreme Court considering the judgment in the case of Vadivelu Thevar Vs. State of Madras (supra) made the following observations in paragraph 7:-
"7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence."
18. In a very recent pronouncement of the Supreme Court in the case of State of Uttar Pradesh Vs. Krishna Master and ors., reported in (2010) 12 SCC 324, the Bench while allowing the acquittal appeal preferred by the State of Uttar Pradesh against the judgment rendered by the High Court of Judicature, Allahabad, acquitting the accused persons of the offence punishable under Section 302 read with Section 34 of IPC, made the following observations in paras 36 and 37:-
"36. ..............This Court fails to understand as to on what principle and on which experience in real life, the High Court made a sweeping observation that it is inconceivable that a child of Madan Lal's understanding would be able to recapitulate facts in his memory witnessed by him long ago. There is no principle of law known to this Court that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respondents by firing gun shots. When a child of tender age witnesses gruesome murder of his father, mother, brothers etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence."
"37. This Court is of the firm opinion that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. Therefore, the spacious ground on which the reliable testimony of PW-2, Madan Lal came to be disbelieved can hardly be affirmed by this Court."
19. Bearing in mind the aforesaid principles of appreciation of evidence of a solitary eyewitness being a child witness, we shall now look into the evidence of PW-6, Vijaylaxmi, very closely.
19.1 PW-6 deposed that she was studying in a school named Rameshwar Vidyalay and on the date of the incident, she had gone to school at around 12' O Clock and returned home at around 5 'O Clock. At the time of incident, she was in the kitchen. The accused was also in the kitchen. Her mother gave food to the accused and after having food, he washed his plate and kept it. The accused dragged her mother inside, inflicted blows with a log of wood three times on her head and also inflicted a blow in the stomach. The accused told PW-6 Vijaylaxmi to keep herself quiet, otherwise she would also be killed. She witnessed the incident with her own eyes. She was told to go to sleep, otherwise she would also be killed and accordingly, she came in the front room and went to sleep, and thereafter, her mother died, her father lodged a complaint and Police recorded her statement in this regard. She could identify Uttam before the Court as the accused. In her cross- examination, she deposed that she was studying in Standard IV and had no idea about her Teacher's name as well as the name of the Principal. She deposed that the name of her new mother is Geeta. She denied the suggestion that her father had taken her at the place of a lawyer and had explained as regards the conduct of the trial.
20. Mr. Harnish Darji, learned counsel appearing for the accused very strenuously urged after referring to the evidence of PW-6 Vijaylaxmi that it is evident that for the first time before the Court PW-6 stated that the accused hit her mother three times on the head with a log of wood and even asked her to keep quiet, otherwise she would also be killed, and thereafter she went to sleep. Mr. Darji further submitted that in the statement recorded by the Investigating Officer, PW-6 had not said a word about any assault by the accused on the deceased with a log of wood, but on the contrary PW-6 had stated that someone opened the door and she found that her mother was lying down in a pool of blood.
In short, the endeavour on the part of Mr. Darji was to highlight the contradictions in the testimony of PW-6 in the form of omissions. Mr. Darji tried to convince us that with such contradictions in the evidence, the trial Court could not have relied upon the evidence of PW-6 in convicting the accused.
21. We could have appreciated and accepted this contention of Mr. Darji, provided the contradictions were proved in accordance with law as per the procedure prescribed under Section 145 of the Evidence Act, read with Section 162 of the Criminal Procedure Code. In the present case, we have noticed that the defence counsel before the trial Court failed to confront PW-6 Vijaylaxmi with her Police statement. If the defence wants to rely upon such contradictions in the form of omissions, then such contradictions ought to have been put to PW-6 Vijaylaxmi by referring to her Police statement. The object of Section 145 of the Evidence Act, 1872 is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. So, when a witness is to be contradicted with his previous statement, such statement should be put to the witness, so that the witness gets an opportunity of explaining. Unfortunately, this has not been done. All that has been done is that the defence counsel tried to prove the contradictions in the form of omissions by putting such contradictions before the Investigating Officer in his evidence. It is true that the Investigating Officer in his deposition has admitted that PW-6 in her Police statement had not stated that the deceased gave food to the accused and thereafter, the accused dragged the deceased inside and inflicted blows with a log of wood three times on her head and also on the stomach. The Investigating Officer has also deposed that PW-6 had not stated in her Police statement that she was asked to keep herself quiet otherwise she would also be killed, and therefore, PW-6 came in the front room of the house and went to sleep. We are afraid that we are unable to accept the submission of Mr. Darji that since the contradictions were put to the Investigating Officer and as the Investigating Officer has admitted the contradictions, the contradictions can be said to have been proved in accordance with law. In order to see whether there is a contradiction by omission, it is necessary to find out whether the two statements could stand together. It is also necessary to see whether the statement which the witness has made in the witness box should have been made by him while reporting the matter soon after the incident. If the two statements made by the witness cannot stand together and the statement in the Court is such that the witness would necessarily have made at the time of his or her earlier statement, then alone omission thereof can be considered to be a contradiction. While contradicting a witness with his earlier statement, it is necessary to follow the provisions of Section 145 of the Evidence Act, 1872. The said Section reads as follows:-
"Sec.145 - Cross-examination as to previous statements in writing. -- A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
This is the manner in which the contradiction is required to be asked and as there were difficulties in regard to what would be the effect of omissions, Explanation is added to Section 162 of the Code of Criminal Procedure, which reads as under:-
"162. Statements to police not to be signed : Use of statements in evidence. --- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation.-- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
Section 162 of the Criminal Procedure Code prohibits use of statements recorded by the police in the course of investigation, for any purpose, in any inquiry or trial, except to a limited extent, as provided for in the proviso to the said Section.
21. In Tahsildar Singh Vs State of Uttar Pradesh, reported in AIR 1959 SC 1012, the Hon'ble Apex Court indicated the procedure to be followed in contradicting a witness by confronting him with his previous statement. At para 13 page 1021 of the above said judgment, the Hon'ble Apex Court held :-
"13. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned Counsel may be illustrated thus : If the witness is asked "did you say before the police-officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies : one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. If a police- officer did not make a record of a witness' statement, his entire statement could not be used for any purpose, whereas if a police-officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that by the illustration given by the learned Counsel for the appellants there is no self-contradiction of the primary statement made in the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police-officer, and not between what he said he had stated before the police-officer and what he actually made before him. In such a case, the question could not be put at all; only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon S. 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of S. 162 of the Code of Criminal Procedure."
22. In the same judgment, at para 26 and 27 at page 1206, the Hon'ble Apex Court held :
"26. From the foregoing discussion the following propositions emerge : (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded statement can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases (i) when a recital is necessarily implied from the recital or recitals found in the statement : illustration : in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement : illustration : in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together : illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he raw away towards the southern lane, as he could not have run away immediately after the stabbing i.e., as towards the southern lane, if one statement is true, the other must necessarily be false.
27. The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law."
23. In Shashidhar Purandhar Hegde and Anr. v. State of Karnataka, (2004) 12 SCC 492 : (AIR 2004 SC 5075 : 2004 Cri LJ 4677), the Hon'ble Apex Court held at para 12 page 498; 499 as under:-
"12. The word "contradiction" is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case, a Court can decide under the circumstances of a case, a Court can decide whether there is one such omission as to amount to contradiction. (See State of Maharashtra v. Bharat Chaganlal Raghani, (2001) 9 SCC 1 : (AIR 2002 SC 409 : 2002 Cri LJ 944) and Rajkishore Jha v. State of Bihar (2003) 11 SCC 519 : (AIR 2003 SC 4664 : 2003 Cri LJ 5040). The explanation to Section 162 of the Code of Criminal Procedure, 1973 (in short "the Code") is relevant. "Contradiction" means the setting of one statement against another and not the setting up of a statement against nothing at all. As noted in Talsidar Singh v. State of U. P., AIR 1959 Cri LJ 1231 : (1959 Cri LJ 1231), all omissions are not contradictions. As the explanation to Section 162 of the Code shows, an omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant or otherwise relevant having regard to the context in which the omission occurs. The provision itself makes it clear that whether any omission amounts to contradiction in the particular context is a question of fact."
24. Applying the aforesaid principles of law, we have no hesitation in coming to the conclusion that the defence failed to prove the contradictions in the evidence of PW-6 Vijaylaxmi in accordance with law and therefore, the accused cannot take advantage of such contradictions. It is therefore, not permissible for us to accept the submission of Mr. Darji that having regard to the major contradictions in the evidence of PW-6 in the form of omissions, the entire evidence of PW-6 deserves to be rejected as it would be very dangerous to rely on the evidence of such a witness.
25. In the cross-examination of PW-6, nothing has been stated by PW-6 on the basis of which it could be said that her version in the examination-in-chief is shaken. Under such circumstances, we have been left with no other option but to accept the evidence of PW-6 as it is, by ignoring the material contradictions and discrepancies with her police statement recorded under Section 162 of the Code of Criminal Procedure.
Thus, the only question now for our consideration would be as to whether the evidence of PW-6 Vijaylaxmi as it is, is trustworthy and reliable, considering the other circumstances emerging from the record of the case.
26. The case of the prosecution is that the accused inflicted blows on the head of the deceased with the leg of a dinning table. This is suggestive of the fact that first the leg of the dinning table must have been broken and thereafter, the accused might have inflicted the blows. It is not that easy to break a leg of a dinning table at a spur of the moment and with the help of the same inflict blows. If that be the case, then at least deceased would have shouted for help because it would take at least some time to even break the leg of the dinning table.
27. The evidence of the first informant, PW-2, the husband of the deceased and father of Vijaylaxmi renders the evidence of Vijaylaxmi, more doubtful. PW-2 in his evidence deposed that when Ramgopal opened the door, he found his wife lying down inside the kitchen in a pool of blood. He also found that one cupboard was open and at that point of time, he believed that a thief might have come and killed his wife after committing theft. He has further deposed that thereafter in the morning, when his daughters woke up, Police enquired with Vijaylaxmi as to what had happened and Vijaylaxmi informed the Police that Uttam hit her mother with a stick. As a matter of fact, Vijaylaxmi never told the Police that Uttam had hit her mother with a stick. The question is, if the FIR was recorded at around 4' O Clock in the morning when Vijaylaxmi and her sister were sleeping and they woke up only in the morning, then how the name of the accused came to be disclosed in the FIR? In the evidence of the Investigating Officer, the Investigating Officer has admitted that PW-6, Vijaylaxmi in her statement had not stated anything about Uttam coming home and her mother giving him food, thereafter Uttam dragging her mother inside and inflicting blows on the head three times with a stick. The Investigating Officer has also admitted that PW-6, Vijaylaxmi had not stated in her statement that she was threatened by the accused, on account of which she came in the front room and went to sleep.
28. We are even not convinced with the story put forward by PW-2, Angad as regards reaching the house at around 2.30 in the night and thereafter knocking the door. According to PW-2 Angad, since no one opened the door on being knocked, he asked Ramgopal to go on the terrace and get inside the house from the rear door. Accordingly, Ramgopal went on the terrace and somehow managed to get inside the house. This story appears to us very doubtful and unpalatable. If PW-2, Angad on peeping through the door saw that both her daughters were sleeping in the front room, then it is very difficult to believe that inspite of knocking the door, Vijaylaxmi, the elder daughter did not open the door. There is no evidence worth the name as to how and in what manner Ramgopal could reach on the terrace of the house and entered the house through a rear door. Even on perusing the scene of offence panchnama, we could not find anything on the basis of which one could say that it was possible for a person to enter inside the house from the terrace. Therefore, the version of PW-2 that he knocked the door, but nobody opened the door and therefore, he asked Ramgopal to go on the terrace, also appears to be concocted.
29. It is very difficult to even believe the version of PW-6 Vijaylaxmi that on being told by the accused to go to sleep otherwise she would also be killed, PW-6 came in the front room of the house and went to sleep. A school-going girl aged about 7 after witnessing such a gruesome murder of her own mother would atleast not go to sleep in the manner suggested by her. It is undisputed that the front door of the house was bolted from inside. This is suggestive of the fact that the accused left the house not through the front door but by any other way after committing the crime. If that be the case, after departure of the accused, PW-6 Vijaylaxmi could easily open the front door and could have got out of the house. It deserves to be noted that PW-6's room was not bolted by the accused from outside. PW-6 had all the time and opportunity to walk out of the house and inform at least Patel uncle and Patel aunty residing in the neighbourhood with whom she had very good relations, as deposed by her in her evidence. The prosecution has also not tried to explain whether there was any other exit available through which the accused could have escaped from the house. It is also very difficult to believe that the accused would spare PW-6 Vijaylaxmi, who had witnessed the incident, knowing well that murder committed by him will be known to one and all.
30. The prosecution has also relied upon the circumstance of the accused absconding after the commission of the crime and being not available for a period of three years. In the present case, there is evidence on record to show that the accused otherwise also was to leave for his village on the date when the incident is alleged to have occurred. PW-2 Angad has deposed that in the evening hours he received a telephone call from the accused saying that he is leaving for his village and his account may be settled. Thus, it is not a case where the accused has disappeared abruptly after the commission of the alleged crime. There is no evidence to even remotely suggest that Police tried to search for the accused by sending a team of Police officials at his village, more particularly when PW-2 Angad knew the place from where the accused had come for work at Surat. It is also not clear from the evidence of the Investigating Officer as to under what circumstances the Police at Ayodhya, State of Uttar Pradesh came to know that the accused was wanted in connection with offence committed at Surat in the State of Gujarat. On the contrary, it has been alleged by the accused that he was brought from Uttar Pradesh at the instance of one Jagadambika Prasad, a Police Officer at Ayodhya, with whom PW-2 Angad had good relations. Under such circumstances, it is difficult for us to consider this piece of circumstance of abscondance as one pointing towards the guilt of the accused, more particularly when the other surrounding circumstances renders the entire case of the prosecution highly doubtful.
31. As discussed above, the deposition of a child witness may require corroboration, but in case the child's deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon such a child's evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because of susceptibility to tutoring. Only in case there is evidence on record to show that the child has been tutored, the Court can reject his or her statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his or her deposition. On overall reappreciation and reevaluation of the evidence on record, we are of the view that the trial Court committed an error in solely relying on the uncorroborated testimony of a solitary child witness in convicting the accused. We have no doubt in our mind that the evidence of PW-6, Vijaylaxmi is not free from embellishment or improvement and that she had been tutored before entering the witness box. Under such circumstances, we have no other option but to give benefit of doubt to the accused.
32. In the result, the appeal succeeds and the same is hereby allowed. The judgment and order of conviction passed by the Presiding Officer, Fourth Fast Track Court, Surat dated 31st May, 2007 in Sessions Case No. 76 of 2006 is hereby quashed and set aside. The accused is ordered to be released forthwith, if not required in any other case.
(Bhaskar Bhattacharya, Actg. C.J.) */Mohandas (J.B. Pardiwala, J.)